KAPILDEO NARAYAN PANDIT v. SHRI UMESH KUMAR

13. Shri Hulash Pandit, 14. Shri Deepak Kumar, both sons of late Lallu Pandit, resident of Village – Bhaisura, P.S. & P.O. Masaurhi, Distt. – Patna …… Plaintiffs 2nd Set………………………. Opposite Parties 1st Set,

15. Shri Rajendra Pandit, son of late Badri Pandit, 2

16. Shri Subhash Prasad, son of Shri Rajendra Pandit, 17. Shri Om Prakash, 18. Shri Sonu Kumar, both minor sons of Shri Subhash Prasad under the guardianship of their natural father, well wisher and next friend Shri Subhash Prasad,

19. Shri Raj Ballav Pandit, S/o Late Badri Pandit, 20. Shri Ajay Kumar, S/o Shri Raj Ballav Pandit, 21. Shri Sujay Kumar, Minor son of Shri Ballav Pandit, under the guardianship of his natural father, well wisher and next friend Shri Raj Ballav Pandit,

22. Shri Ram Ishwar Pandit, son of Late Badri Pandit, 23. Shri Dablu Kumar, 24. Shri Bablu Kumar, both minor sons of Shri Ram Ishwar Pandit under the guardianship of their natural father, well wisher and next friend Shri Ram ishwar pandit, All residents of Village – Narayanpur, P.S. Bihta, P.O. Maner, Distt. Patna …Defendants 2nd Set-Opposite Parties 2nd Set. ----------- For the Petitioners:- Mr. Jitendra Kishore Verma and For O.P. Nos. 1-14:- Mr. Awadhesh Pd. Sinha and Mr. Harish Kumar, Advocates. For O.P.Nos.17 & 18:-Mr. Neeraj Kumar, Advocate. Mr. Mritunjay Kumar, Advocates. -----------

24.06.2009. Heard learned counsel for the Petitioners and learned counsel appearing for the Opposite Parties except Opposite Parties No. 15 and 16. Earlier on 28.08.2006 this Court has issued notice upon Opposite Party Nos. 2 to 18 to show cause why this application be not admitted and / or be disposed of at the stage of admission itself. However, Opposite Party Nos. 15 & 16 have not appeared despite service of notice. I now proceed to dispose of this matter. The defendants 1st set – petitioners have 3 challenged part of the order dated 6.1.2006 passed by the Sub Judge II, Danapur in Title Suit no. 149/97 whereby one deed of gift executed by one Kapildeo Narayan Pandit in favour of the State of Bihar has been exhibited as Exhibit `7A’ and also a `hand-note’ was refused to be marked as exhibit on behalf of the petitioners though no such prayer was made by them. It is submitted on behalf of the petitioners that the plaintiffs filed a petition, which has been brought on record as Annexure-1, for exhibiting the sale deed dated 24.04.1979 as one of the witnesses during his cross-examination has admitted in paragraph no. 31 of his deposition that Kapildeo Narayan Pandit was identified by him. However, by the impugned order in place of aforesaid document a deed of gift executed by Kapildeo Narayan Pandit in favour of the State of Bihar, has been marked as Exhibit `7A’ on the basis of the aforesaid prayer of the plaintiffs. Learned counsel contends that the impugned order, thus, is erroneous and liable to be quashed. Opposite Party No. 1 has filed counter affidavit and from the averments made therein also it 4 appears that some other document has been exhibited in place of the document, which was sought to be exhibited by the plaintiffs. However, Opposite Party No. 1 has stated in his counter affidavit that since the other document is also a certified copy of the registered deed, the same would not in any manner prejudice the petitioners. Learned counsel for the opposite parties admitted that since both the deeds were executed by the same person, therefore, this mistake might have occurred. Learned counsel for the petitioner has produced a certified copy of the deposition of DW-7, namely, Syed Abdul Mannan and has demonstrated therefrom that in paragraph 31 thereof a reference has been made with regard to the sale deed dated 24.04.1979 executed in favour of Tileshwari Kunwar and not regarding deed of gift which has been marked as exhibit. Let the aforesaid certified copy be kept on record. It has further been submitted petitioners have also filed a petition for marking some documents as exhibits but they have not made any prayer for marking any `hand-note’ as exhibit, but surprisingly the learned court below has refused the prayer for 5 marking the `hand-note’ as exhibit which, according to him, was totally unwarranted as no such effort was ever made by the petitioners. Learned counsel for the opposite parties also agree that from a plain reading of the petition in question, which is Annexure-3, it appears that no prayer for marking the `hand-note’ as exhibit was ever made by the petitioners. In view of the aforesaid this Court is constrained to hold that the impugned order dated

6.1.2006 is erroneous to the aforesaid extent and, thus, that part of the order whereby the deed of gift has been marked as Exhibit-`7A’ as well as the `hand-note’ of the defendants – petitioners, which was refused to be marked as exhibit without such prayer being made by the petitioner, is hereby quashed. The plaintiffs will, however, be at liberty to make a fresh prayer before the learned court below for marking of the sale deed dated 24.04.1979 as exhibit. If such a prayer is made before the learned court below, the same should be decided by it in accordance with law after hearing the parties. It is also made clear that this Court has not 6 formed any opinion on merit with regard to marking of the `hand-note’ in question as exhibit as the relevant part of the order has only been set aside on the ground that no such prayer has been made by the petitioners before the court below. Accordingly, this civil revision is allowed. ( Dr. Ravi Ranjan, J. )