DHOKAL MAHTO Vs. SARKHIL MAHTO

JUDGEMENT

(1.) PLAINTIFFS are the appellants who filed title Suit No. 126/80 of 1968-84 for declaration of their occupancy right over an area of 32 decimals of land under plot No. 352 under R.S. Khata No. 3 of village Tewaridih. The suit was decreed on contest. The defendants filed Title Appeal No. 56/84 against the said judgment and decree. The defendants raised a point before the learned court below that the trial court marked Sada Hukumnama as Ext. 1 and taking the same into evidence, decreed the suit. Argument was advanced before the lower appellate court that instead of admitting the Sada Hukumnama into evidence, the trial court should have impounded the said document and only after payment of sufficient penalty the said document could have been taken into evidence as because this was not done by the trial court, the defendants-respondents raised objection before the lower appellate Court. It appears that the learned lower appellate court, on the basis of the submission made on behalf of the defendants-respondents allowed the appeal, set aside the judgment and decree of the trial court and remitted the suit to the trial court with a direction to impound the Sada Hukumnama and after payment of sufficient penalty by me plaintiffs the court below will mark the said document as Exhibits and admit the same. Further it was directed that the matter be decided accordingly after taking into consideration of the said Soda Hukumnama.

(2.) MR. Teterbe, learned Counsel appearing on behalf of the appellants has raised a very short question while assailing the judgment of the lower appellate court. He submits that as because the Soda Hukumnama was taken into evidence and market Ext. 1 by the trial court, the lower appellate court should not have set aside the judgment and decree as a whole. Instead, it is submitted that the lower appellate court should have asked the plaintiffs-appellants to give penalty before taking into consideration Ext. 1. the Sada Hukumnama as evidence. He further submits mat the learned court of appeal below has not taken into consideration the fact that the defendants before the lower appellate court never raised any objection regarding admission of mis Sada Hukumnama into evidence.

(3.) AFTER hearing the parties, in my considered opinion the judgment of the learned lower appellate court cannot be sustained in law. It is not in dispute that the Sada Hukumnama was fded before the trial court and no objection was raised by the defendants regarding its admissibility. The trial court admitted the same as Ext. 1 and on consideration, decreed the suit. In appeal, the lower appellate court should have asked the plaintiffs-appellants to pay penalty and after such payment the Sada Hukumnama could have been taken into evidence by the appellate court itself. The lower appellate court by doing so, could have proceeded with the merits of me appeal but instead of doing so the learned appellate court has remitted the matter unnecessarily before the trial court.