NAWAL KISHORE PRASAD Vs. MOSTT. ANITA DEVI

JUDGEMENT

(1.) Heard Mr. J.S. Arora, learned senior counsel for the petitioner as well as Mr. Neeraj Kumar, learned counsel appearing on behalf of the respondents.

(2.) The present petition has been filed for setting aside the order dated 17th of March, 2017 passed in Title Suit No. 55 of 2002 by the court of learned Sub Judge-II, Hilsa, whereby the learned Sub Judge allowed the application of the plaintiff for further cross-examination of defendants' witnesses No. 9, 10 and 11 to the extent of a document, a mortgage deed which was marked exhibit on 13/2/2017.

(3.) It has been submitted by the learned senior counsel for the petitioner that before the learned trial court, a mortgage deed dated 6th of January, 1993 was filed on the record with other documents but it was not marked. The same was marked only at the time of argument. After marking the said document exhibit, the plaintiff moved an application for recalling defendants' witnesses No. 9, 10 and 11 which was allowed. The same is under challenge before this Court in this petition. Learned senior counsel further submits that the plaintiff brought a suit for partition whereas the case of defendant is that partition has already taken place way back in the year 1987 and a partition deed dated 22nd of June, 1987 was also prepared. Subsequently, the plaintiff/respondent witnessed the mortgage deed dtd. 6/1/1993 executed by her mother Pano Kuer wherein recital about previous partition had been made. But the said document could not be marked exhibit and the same got exhibited at the time of argument. However, when written statement was filed by the defendants, the petitioner herein, the fact about existence of mortgage deed was brought on record. Similarly, in their evidence, the defendants' witnesses 9, 10 and 11 unequivocally stated in paragraph 9 of their deposition about execution of the aforesaid mortgage deed and they were not crossexamined on this point by the plaintiff. The plaintiff in her deposition did not deny the document dated 6th of January, 1993 though, detailed statement had been made in the written statement of the defendants. The learned trial court did not take all these facts into consideration and passed the order mechanically without addressing these issues.