DOSHEI DEI Vs. RAMA ROUTA

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Munsif, Puri rejecting the plaintiffs' prayer to lead further evidence for proof of documents.

(2.) In order to appreciate the point which arises for consideration it is necessary that the facts pleaded by both parties to the suit be elucidated in brief. The suit land bears C.S. Khata No. 394 with an area of Ac. 0.27 appertaining to C S Khata No. 1022 in village Samanga with nine standing cocoanut plants. According to the plaintiffs (petitioners), the suit land previously belonged to late Durga Charan Jagdeb Ray. He sold the same in favour of late Jogi Pradhan, predecessor in-interest of the plaintiffs by virtue of a registered sale deed executed on 26-1-1944. Late Jogi Pradhan was in possession thereof. After his death there was a partition amongst his sons and the suit land fell to the share of the plaintiff's branch. The plaintiffs had been in peaceful possession thereof on the strength of their own title. The defendants (opposite parties) own the adjoining C S. Plot No. 395 on the south of the disputed land which they use as homestead. They invaded the plaintiffs right in respect of the suit land by removing the green fence and plucking cocoanuts. On account of such action, the plaintiffs filed the suit for declaration of title in respect of the suit land, for confirmation of possession or in the alternative for recovery of possession and for permanent injunction. The case of the defendants on the other hand, is that C. S. Plot No. 394 has an area of Ac. 0.03. In the settlement operation of the year 1928 the suit plot was recorded in the names of Natha Pani and Dhani Pani. After their death, the widow of Nathe Pani, named Kadi Bewa was in possession thereof. The defendants with the consent of Kadi Bewa possessed the suit land and in course of time they have acquired title in respect thereof by adverse possession.

(3.) Both the parties came up to the trial and the defence evidence was closed on 6-5-1980. In the meanwhile, on 25-4-1980 the plaintiffs made a petition to the Court stating therein that the office copy of a notice and the reply thereto proved by Banshidhar Naik (P.W.2) had not been admitted into evidence and marked as exhibits which should be done. On 6-5-1980 i.e. the date when the defendants closed their evidence, the plaintiffs filed another petition stating therein that Geura Rout, predecessor-in-interest of the defendants, had given a reply to the notice which contained his signature. This document could not be proved through any of the defence witnesses. Therefore, opportunity should be given to the plaintiffs to adduce further evidence in order to prove the reply to the notice given by Goura Rout duly signed by him. The defendants raised objection mainly on the ground that the contents of the reply given by Goura Rout in response to the notice were not pleaded in the plaint and so the plaintiffs cannot adduce evidence to prove a fact not pleaded. Accordingly, examination of further witnesses for proof of the reply given by Goura Rout is impermissible under law. The learned Munsif observed in the impugned order that notice was issued to Goura Rout in the year 1961 and the alleged reply was of the year 1968. The suit was instituted in the year 1976. As the reply of Goura Raut contained an admission to the effect that he had no right title or interest over the disputed land, it was a material piece of document and so the fact should have been specifically pleaded in the plaint. As it was not done, the plaintiffs cannot be allowed to adduce evidence to the aforesaid effect. Further, the plaintiffs had produced the document which was on record when they adduced evidence. They did not take special care to prove the same. Therefore, failure to do so cannot be condoned and they cannot be permitted to adduce evidence for proof of the said document at the fag end of the trial of the suit, accordingly he rejected the petition