ASWINI KUMAR MAITY Vs. AMAR NATH DE

JUDGEMENT

(1.) Challenge is to the Order No.195 dated December 11, 2012 passed by the learned Civil Judge (Junior Division), Additional Court, Tamluk in Title Suit No.91 of 2007 thereby allowing the objections of the plaintiffs against the examination-in-chief of the D.W.2 in consequence, the paragraph nos.7 to 14 of the examination-in-chief of the D.W.2 have been expunged.

(2.) The plaintiffs/opposite party nos.1 & 2 instituted a suit being Title Suit No.20 of 1995 before the learned Munsif, 1st Court, Tamluk for declaration that they were the owners of the suit property described in Schedule 'Ka' by purchase and that the defendant/petitioner herein had no right, title or possession over the suit property and a decree of declaration that the ex parte decree in Title Suit No.86 of 1990 passed by the 2nd Court of Munsif, Tamluk was obtained by the defendant on the basis of agreement for sale which was executed fraudulently and collusively and the same was void, illegal and not binding upon the plaintiffs and other consequential reliefs.

(3.) The petitioner is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The evidence on behalf of the plaintiff has been closed and the suit is at the stage of recording the evidence on behalf of the defendant. The defendant tendered the evidence of the D.W.2 under Order 18 Rule 4 of the C.P.C. wherein as per observation of the learned Trial Judge, the paragraph nos.7 to 14 are not based on primary evidence but on secondary evidence without complying with the provisions of Section 65 of the Indian Evidence Act and as such, the learned Trial Judge allowed the objections of the plaintiffs and expunged those portions of the examination-in-chief of the D.W.2. Being aggrieved, this application has been preferred.