CHANDRA SHEKHAR MISHRA AND OTHERS Vs. SHAMBHU SHARAN

JUDGEMENT

(1.) Heard Shri Tripathi B.G. Bhai, learned Counsel for the Petitioners and Shri D.K. Singh for the Respondent.

(2.) Undisputed facts are that Original Suit No. 161 of 2003 was filed by the Plaintiff-Petitioners for a decree of possession and damages for use and occupation of the property in question on the allegation that the property has devolved upon them under a family settlement and they are the owner of the property in question. The Defendant-Respondent entered appearance and filed their written statement denying the plaint allegation. On the basis of the pleadings of the parties, issues were framed and the parties also filed documentary evidence in support of the respective cases. Thereafter, at the stage of oral evidence, an application was filed by the Plaintiff-Petitioners to bring on record the copy of some sale deed dated 2.1.1964 and memorandum of family settlement dated 26.4.1985 as evidence with a prayer to grant leave and take on record the said documents as evidence. Trial court vide order dated 9.7.2008 dismissed the application. Aggrieved, the Plaintiff-Petitioners went up in revision which has also been dismissed. Both the courts below have refused to take the documents in evidence on the ground that there is no pleading in respect of the same in the plaint. Trial court has categorically held that neither there is any reference of the sale deed dated 2.1.1964 in the plaint nor there is any reference of family settlement dated 26.4.1985 and in the absence of pleading in this regard, the documents cannot be permitted to be taken as evidence.

(3.) Learned Counsel for the Petitioner has submitted that since in paragraph 6 of the plaint, it was categorically mentioned that property has been devolved upon them under a family settlement and they were exclusively owners thereof, as such, it cannot be said that documents being filed were beyond the pleadings by the parties.