LAWS(MPH)-2015-1-140

BHAGWAN SUNGH Vs. BABULAL AGRAWAL

Decided On January 30, 2015
Bhagwan Sungh Appellant
V/S
BABULAL AGRAWAL Respondents

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India challenge is made to the order dated 15.5.2009. trial Court has rejected the application of the petitioners under section 33 of Evidence Act.

(2.) FACTS necessary for disposal of this petition are to the effect that originally Mardan Singh, Nirbhay Singh and Kirat Singh filed a suit against Hiralal and Parasram for possession of suit land admeasuring 25.6 x 15 feet. Suit was decreed by the trial Court by judgment and decree dated 30.6.1966 in Civil Suit No.176 -A/63x4 confirmed in appeal up to High Court. After death of Hiralal, respondents No. 1 to 7 were brought on record and as there was no legal heir of Parasram, his name was deleted after his death. Decree so obtained was put to execution by LRs of original plaintiff against LRs of original defendants for taking possession. At that stage, one Dewan Singh, respondent No. 8 moved an application that part of suit land ad measuring 10.6 x 25 ft is of his ownership and he is in possession thereof. As he was not impleaded as party in the suit, therefore, he is not bound by the decree passed by the trial Court. The aforesaid claim resisted by the plaintiffs, however, the trial Court treating the aforesaid application as filed under Order 21 rule 97 CPC directed to hold an enquiry and fixed the case for evidence. Thereafter, petitioners moved an application under section 32 of Evidence Act read with section 151 CPC. It is stated in the application that in Civil Suit No. 176 -A/63 proceedings, statement of Mardan Singh s/o Karan Singh, Mohanji Bhai s/o Kalyan Singh, Shankar Rao s/o Kishan Rao resident of Vidisha were recorded and since these persons have died, therefore, they could not be produced as witness, hence, their statements so recorded be taken on record under section 32 of the Evidence Act. It was submitted that documentary evidence of aforesaid witnesses is relevant to demonstrate that at the time of execution of decree, aforesaid property was found to be in possession of the petitioners and only to create complications in execution of decree, this application under Order 21 rule 97 CPC was moved.

(3.) HOWEVER , said application was rejected on 12.11.2008 as trial Court found that ingredients of section 32 of Evidence Act were not fulfilled. However, opportunity was granted to petitioner to bring on record the aforesaid documents under relevant provisions of Civil Procedure Code.