ANJANA SARMA Vs. HEM BORA

JUDGEMENT

(1.) Heard Mr. J. Deka, learned counsel for the appellant. Also heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. A. Barkataky, Advocate for the respondent. The basic facts before the Courts below are as follows:

(2.) The prayer in the suit, as amended, was for a decree for ejectment of the defendant from the suit premises upon a declaration of right, title and interest in favour of the appellant/plaintiff. In the suit as many as 9 issues were framed, out of which Issue No. 5 was with regard to as to whether the plaintiff has right, title and interest in the suit premises. The learned Trial Court decided the issue in the negative having found that the appellant/plaintiff had not brought on record any documents showing the ownership of the original owner Smti Hira Baruah nor the Partition Deed showing that she had inherited the land after her mother's death. The learned Trial Court also held that the Municipal Tax paying receipts as well as the land revenue receipts, so exhibited, do not go to support her claim of ownership over the suit land by virtue of right, title and interest. In fact, the very title of her mother Smti Hira Baruah was considered to be doubtful and clouded. In terms of discussion in Issue No. 5, the other Issue Nos. 4 and 7 with regard to as to whether the defendant is a tenant of the plaintiff and also a defaulter were also decided in the negative. The learned Trial Court found that the plaintiff not having proved that she is the owner of the suit premises, therefore, the question of the defendant being a tenant did not arise and consequently the question of tenant being a defaulter was held redundant. By judgment and decree dated 28.8.2000 passed by the Civil Judge (Jr. Division No. 3) Guwahati the suit was dismissed on contest without cost.

(3.) Being aggrieved, the appellant/plaintiff Smti Anjana Sharma filed Title Appeal No. 38/2001 on 3.5.2001 before the Court of the Civil Judge (Sr. Division) No. 1, Kamrup at Guwahati. During the pendency of the appeal, the appellant/plaintiff filed petition under Order 41 Rule 27 CPC praying for leave to adduce additional evidence, being the gift deed and the mutation order. At paragraph 4 to the said petition under Order 41 Rule 27 of the CPC, the appellant/plaintiff stated that after due diligent search the certified copy of the gift deed dated 21.3.1963, executed by one Sri Prafulla Ch. Baruah in favour of her mother Smti Hira Baruah, could be found. The said gift deed was in respect of the gifting of 1 Bigha of land by said Prafulla Ch. Baruah to Smti Hira Baruah. It was averred that upon the death of Smti Hira Baruah, the appellant/plaintiff became the owner of the land as per partition between the plaintiff and her brother and that the appellant/plaintiff also got her name recorded in the revenue records. It was also averred that the said facts are required to be brought into evidence which, however, could not be brought to the notice of the Court by giving evidence. Statement was also made that the respondent would not be prejudiced if prayer for additional evidence is allowed. Objection to the petition under Order 41 Rule 27 CPC was filed by the respondent/defendant to the extent that the appellant/plaintiff had never pleaded in the plaint in respect of any gift deed and had nowhere stated as to how she had acquired title of the land. Further, that the appellant/plaintiff cannot be allowed to introduce new pleading and new document at such a belated stage of the proceedings, which were neither disclosed in the year 1997 when the suit was filed or in the year 1999 when the plaint was amended or at the time of adducing evidence by the appellant/plaintiff. The respondent/defendant also pleaded that prejudice would be caused and the character of the suit would also change if the appellant/plaintiff is allowed to adduce additional evidence and prove new document The order on the said petition was passed on 5.12.2003 rejecting the same on ground that the appellant/plaintiff could show nothing of not having knowledge about the gift deed at the time of adducing evidence before the Trial Court nor could show any sufficient cause for her failure to produce the said document at the time of trial of the suit.