RADHE YADAV Vs. PRABHAS YADAV

JUDGEMENT

(1.) The present civil misc. petition has been filed by the petitioner under Article 227 of the Constitution of India for quashing the order dtd. 2/3/2017 passed by the learned Munsif-I, Munger in Misc. Case No. 05 of 2016 rejecting the petition dtd. 21/5/2016 filed by the petitioner for review of the order dtd. 22/4/2016 passed in Title Suit No. 23 of 2011 and also for quashing the order dtd. 22/4/2016 passed in Title Suit No. 23 of 2011 whereby and whereunder the petitioner was debarred from cross-examining the witness Prabhas Yadav, the respondent herein, on the point of contents of document.

(2.) Briefly stated, the facts leading to filing of the present petitioner, as it appears from the record, are that the petitioner has filed Title Suit No. 23 of 2011 for declaration of the title of the plaintiff on the suit land and for confirmation of possession over the said property apart from recovery of possession in case the plaintiff was dispossessed during pendency of the suit and also for permanent injunction against the defendant. After service of notice, the respondent, who is defendant before the learned trial court, appeared and filed his written statement. While the evidence of the defendant was being recorded, the learned Munsif-I, Munger did not permit the learned counsel for the petitioner to cross-examine the defendant/respondent on the point relating to contents of the document specifically on the point of boundary mentioned in the sale deed executed by his vendor in favour of the petitioner. The learned Munsif-I, Munger vide order dtd. 22/4/2016 debarred the petitioner to cross-examine the witness on the point that evidnece could not be givent to change or alter the contents of the document as the same is not permissible under the provisions of Sec. 92 of the Indian Evidence Act (hereinafter referred to as 'the Act'). Against the order dtd. 22/4/2016, the petitioner filed review petition on 21/5/2016, which was registered as Misc. Case No. 05 of 2016, but the same was rejected by the learned Munsif vide order dtd. 2/3/2017. The aforesaid orders have been assailed before this Court in the instant civil misc. petition.

(3.) Further case of the petitioner is that the suit property bearing Khata No. 184, Plot No. 659, measuring an area 2 % katha originally belonged to one Ram Sahay Yadav (Gope). Out of said area of 2 % katha, Ram Sahay Yadav sold 02 decimal land to one Jhagru Gope and accordingly, mutation was done in the name of Jhagru Gope. After death of Jhagru Gope, his wife Dhaniya Devi sold 02 decimal land in favour of the petitioner on 9/11/1949. However, at the time of registry, the deed writer mistakenly mentioned incorrect Plot No. 654 instead of correct plot no. 659 but boundary of Plot No. 659 was correctly mentioned in the sale-deed. The petitioner coming to know about the mistake committed by the deed writer, filed a petition for correction of plot number in the Registry Office on 4/7/1989 and accordingly, plot number was corrected and the name of the petitioner was entered into Jamabandi No. 184/258 existing in name of Jhagru Gope and thus new jamabandi was created in Mutation Case No. 04 of of 2001. The petitioner had also purchased 5 % dhurs land of the said plot no. 659 from Genhari Yadav, son of late Ram Sahay Yadav, by way of registered sale deed dtd. 25/4/1980. Since wrong plot number was mentioned in earlier sale deed, following the same sale deed, again incorrect plot number was mentioned and same mistake was committed by the deed writer. But despite repeated requests of the petitioner, Genhari Yadav, the father of the respondent, did not agree to file any petition for rectification of the said mistake committed by the deed writer and correction of the plot number. Further case of the petitioner is that in past when the dispute arose over plot number of earlier purchased 02 decimal land of the petitioner, a panchayati was held and Genhari Yadav accepted that the plot number has been wrongly mentioned and dispute over right to way ('Rasta') was settled. However, in the document of panchanama, it came to be wrongly mentioned that 02 decimal of land was purchased by the petitioner from father of Genhari Yadav whereas father of Genhari Yadav sold 02 decimal land to Jhagru Gope, whose wife later on sold it to the petitioner. Further, in the sale-deed dtd. 25/4/1980 executed by Genhari Yadav, by virtue of earlier purchased 02 decimal land, the petitioner has been shown as boundary raiyat. Further case of the petitioner is that the defendant/respondent, with an intention to grab the land purchased by the petitioner, filed a petition for correction of jamabandi No. 184/258 vide Case No. 01/2005-06. In the said case, the Deputy Collector Land Reforms, on the basis of wrong and fictitious report of Halka Karmachari and Circle Inspector, included the said land in Original jamabandi No. 184 and against the said order, the petitioner preferred an appeal before the learned Collector, Munger vide Appeal No. 07 of 2005-06. However, in the appeal, learned Collector, Munger vide order dtd. 18/1/2010 directed the parties to approach the competent civil court for resolution of the issue and thus, Title Suit No. 23 of 2011 came to be filed by the petitioner.