BIMLA DEVI Vs. LAXMI DEVI

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel for respondent no.4.

(2.) The petitioners have challenged the order dated 9th of November, 2016, passed by learned Additional District Judge-II, Begusarai in Title Appeal No. 01 of 2010, whereby and whereunder learned Court has dismissed an application, filed on behalf of the petitioners under Order XLI Rule 27 of the Code of Civil Procedure (hereinafter referred to as 'CPC').

(3.) The case of the parties, as emerges from the record, is that the petitioners were plaintiffs in the Court of learned Munsiff 1st, Begusarai and they filed Title Suit No. 26 of 2004 for declaration that the plaintiffs and the husband of defendant 1st party orally partitioned the lands which were allotted to them jointly in Title Suit No. 32 of 1965 by learned Sub Judge, Begusarai in August 1980 and both the parties came in separate possession of their shares, respectively. The husband of defendant no.1/ respondent no.1 died in 1991. The plaintiff no.1 and husband of defendant no.1 were full brothers and plaintiff nos. 2 and 3 are sons of plaintiff no.1, whereas defendant nos. 2 and 3 are sons of defendant no.1. Earlier a partition suit bearing No. 32 of 1965 was filed and both the brothers came in possession of their shares jointly. Thereafter, an oral partition took place between plaintiff no.1 and his brother, the late husband of defendant no.1, in August, 1980 and thereafter both the brothers separated in mess and business and they had no concern with each other. After death of the brother of plaintiff no.1, some dispute arose with respect to cultivation of land. Therefore, a memorandum, based on the earlier oral partition, was prepared and parties put their signatures on the said document, allotting properties of Schedule III of the plaint in the share of the plaintiffs and properties of Schedule IV to the defendants. After oral partition of August, 1980, the husband of defendant no.1 had sold some land from his share of the property to the plaintiff and the defendants were threatening to interfere with the land belonging to the plaintiffs. Further, during pendency of the suit, the defendants sold two kathas of land appertaining to Plot No. 1126, Khata No. 110, Tauzi No. 1091 and Thana No. 29 in favour of respondent no.4, which belonged to the plaintiff who was in possession. Therefore, an amendment was sought to challenge the sale deed which was allowed vide order dated 16th of February, 2006. Schedule-V of the plaint was added to show the land sold by the defendants in favour of respondent no.4. The suit before learned Munsif proceeded ex parte against defendant nos. 1 to 3. Defendant no.4 appeared in the Court, but did not file his written statement and hence, the case proceeded against him under Order VIII Rule 10 of the CPC. After considering the evidence, learned Trial Court dismissed the suit of the plaintiffs/petitioners vide judgment dated 30th of October, 2009, which was challenged by the plaintiffs in Title Appeal No. 01 of 2010 in the Court of learned District Judge, Begusarai. During pendency of the appeal, the plaintiffs/appellants/petitioners filed an application dated 18th of June, 2016 in the Court of learned Additional District Judge-II, Begusarai to call for the original records of Partition Suit No. 32 of 1965 from the Civil Court, Begusarai. However, the learned Appellate Court directed the appellants to file the certified copy of the Partition Suit No. 32 of 1965 and thereafter, the appellants applied for the certified copy, which was provided to the appellants on 10th of August, 2016. In the meantime, the appeal was heard and was fixed for judgment on 17th of August, 2016. On 17th of August, 2016, the appellants filed the certified copy of the Partition Suit No. 32 of 1965 with an application to accept the documents giving reasons for not filing the same earlier. The application of the petitioners was objected to by the respondent no.4. Learned Additional District Judge-II, Begusarai heard the application under Order XLI Rule 27 CPC and rejected the same on the ground that the appellant was having knowledge about existence of the said documents and there has been no cogent and valid proof that proper steps were taken for obtaining the documents and therefore there was no satisfactory and plausible as well as genuine grounds to show that due diligence has been taken by the appellants. The learned Appellate Court went on to dismiss the application of the plaintiffs/appellants/petitioners vide its order dated 9th of November, 2016, which is under challenge before this Court.