MAHESH RAM Vs. CHANDRIKA RAM

JUDGEMENT

(1.) Heard learned counsel for the parties on the point of admission and I intend to dispose of the instant petition at the stage of admission itself.

(2.) The instant petition has been filed under Article 227 of the Constitution of India by the petitioners for setting aside the order dtd. 31/8/2018 passed in Title Appeal No.39 of 2007 by the learned 1stAdditional District Judge, Gopalganj whereby and whereunder the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') filed by the petitioners for inclusion of the two voter list of Bhagwanpur Mauza as additional evidence has been rejected.

(3.) Shorn of unnecessary details, the facts of the case are that father of the petitioner nos. 1 to 4 and husband of petitioner no.5 filed Title Suit No. 201 of 2001 for declaration of half share in Schedule 1 to 3 land of plaint and also sought declaration of title of petitioner no. 5 over 10 decimals 9.5 dhurs of the land in the same scheduled land, and at the same time, seeking possession of the suit land. Permanent injunction was also sought on the suit land till the disposal of the suit. The defendants/respondents appeared upon notice and filed the written statement contradicting the claim of the plaintiffs/petitioners and after deposition of witnesses and production of documentary evidence, the learned trial court decreed the suit. The learned trial court declared the respective shares of the petitioners as well as the respondents and directed for appointment of Pleader Commissioner. But the petitioners/appellants being aggrieved and dissatisfied with the decree dtd. 21/12/2006 filed Title Appeal No.39/2007 before the court of learned District Judge, Gopalganj, raising their grievance before the appellate court that the learned trial court did not declare their shares according to their prayer in the suit. During the pendency of the title appeal, the petitioners/appellants filed a petition dtd. 7/2/2011 before the learned first appellate court for admission of additional evidence, namely, the voter lists of the family of the parties for the year 1966 and 1971 under Order 41 Rule 27 of the Code. The respondents filed their rejoinder dtd. 9/2/2011 denying the averments made in the petition dtd. 7/2/2011 and stating it to be false and concocted. The learned appellate court after hearing the parties concluded that the petition dtd. 7/2/2011 could not be accepted as its acceptance would change the nature of pleadings and held the petition to be not maintainable and disposed of the petition dtd. 7/2/2011 by the impugned order dtd. 31/8/2018.