BAIKUNTHA NATH CHAKRAVARTI Vs. UMANATH CHAKRAVARTI

JUDGEMENT

(1.) In the suit out of which this appeal, has arisen the plaintiffs sued for partition of some 11 plots of land. The plaintiffs allegation was that oat of 11 plots of land plots Nos. 1 to 4 had already been partitioned and of these plots plots Nos. 1 to 3 had fallen to the share of defendant No. 9 Mahim and plot No. 4 to defendants Nos. 1 to. 3 and the remaining plots Nos. 5 to 11 were held join as between defendants Nos. 1 to 9. The plaintiffs had purchased the share of defendant No. 9 in the property by a kobala dated 21 Sraban 1323 and on this allegation he asked for partition of the property. The First Court dismissed the plaintiffs suit holding that they had no title or possession in the property in dispute and this finding was upheld on appeal to the District Court. The plaintiffs have now appealed to this Court and their contention is that certain documents, namely, a geneology, jama-kharach and collection papers which he had desired to be produced by defendant No. 9 and a list of the names of ancestors used in the ceremonies performed on behalf of the family which they wished the witness Kailash to produce had not been allowed to be put into evidence by the Court of first instance nor by the lower Appellate Court. Now it is not disputed that the plaintiffs wanted that these documents should be produced by the two witnesses, defendant No. 9 and Kailash. The Trial Court rejected these documents and did not allow them to be produced by the witnesses and to be proved on the ground that the plaintiffs witnesses should before long have filed these documents if any they had brought for the purpose of being used in evidence and for this reason he did not allow them to be produced or proved. A question was raised in the lower Appellate Court and in that Court apparently two documents were dealt with by the Judge. But it does not appear that the plaintiffs were given ah opportunity of summoning witnesses Kailash and Mohim to produce the documents which they had desired to be produced and proved. The plaintiffs argue that it was not necessary for them to produce these documents before hand because these documents were not in their possession and power and that, therefore, they could not produce them before the witnesses were put into the box to give their evidence nor was it necessary for them to do so. The respondents contend that under Order XIII, Rule 2 no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. But the respondents seem to have never realised that these documents are not documents which were in the power and possession of the witnesses, and, therefore, the plaintiffs clearly could not cause them to be filed before the witnesses were put into the box to adduce evidence and Order XIII, Rules 1 and 2 have, therefore, no application. It seems, therefore, clear that the learned Judge was wrong in refusing to admit these documents and the plaintiffs must be given an opportunity of producing these documents in Court.

(2.) The case, therefore, must be sent back to the lower Appellate Court to re-hear the appeal after giving the plaintiff an opportunity of summoning these two witnesses Mohim and Kailash, Mohim to produce the geneology jama-kharach and collection papers and Kailash to produce the list of the names of the ancestors used in the ceremonies he had performed. The defendants will be allowed to cross-examine these witnesses and if they so desire to produce evidence to rebut the documents.

(3.) Costs of this appeal will abide the result. Greaves, J.