SK MANNO Vs. AKHLAQUE HOSSAIN

JUDGEMENT

(1.) This revisional application has been preferred from the Order No.19 dated 8.9.90 passed by the learned Assistant District Judge, Sealdah in T.A. No.102 of 1989.

(2.) It appears that the opposite party filed Title Suit No.393 of 1985 before the learned Munsif, 1st Court, Sealdah for permanent injunction restraining the present defendant/petitioner from disturbing with his peaceful enjoyment of the disputed property. He claimed to have purchased the said property from the owners thereof with the present petitioner and others as tenants in respect of the structures comprising the disputed property. The defence taken by the petitioner was that his father and after his death he himself held the land of the disputed premises as thika tenant thereof, and that on coming into effect of the Calcutta Thika Tenancy (Acquisition and Requisition Act), 1981 he became the direct tenant under the State. It appears that the suit was decreed and the present petitioner has filed an appeal being Title Appeal No.102 of 1989 which is now pending in the Court of the learned Assistant District Judge, Sealdah. Before the learned Assistant District Judge the petitioner filed an application under Order 41 Rule 27 of the Civil Procedure Code for leave to lead additional evidence being a number of rent receipts allegedly granted to his father, Nader Box, by the erstwhile landlords. On a consideration of all the circumstances the learned Assistant District Judge rejected the petitioner's petition under Order 41 Rule 27 of the Code and hence this revisional application.

(3.) It appears that in his deposition the petitioner stated that he himself had taken settlement of the land from the erstwhile landlords. The learned Judge felt that this evidence was contrary to the evidence sought to be adduced under the provisions of Order 41 Rule 27, for the receipts stood in the name of the father of the petitioner. The evidence is there nodoubt, but it appears that while coming to the conclusion in this regard the learned Judge did not take into consideration the fact that in his written statement the petitioner stated clearly that it was his father who had taken settlement of the disputed land. In the circumstances stated citing Siddik Mahomed Shah v. Musammat Saran, AIR 1930 PC 57 it is urged by the learned Advocate for the petitioner that the evidence contrary to the pleading need not be considered. Benefit of such evidence may not go to the party adducing it, but the other party cannot certainly be excluded from taking advantage of the contradiction between the pleading and the proof. Be that as it may, the learned Appellate Court below did not take into his consideration the fact that in his written statement the petitioner actually made out a case that his predecessor had taken settlement of the disputed property. This is a circumstance which goes against the order.