SHEOGOBIND RAI Vs. DEONARAYAN AHIR

JUDGEMENT

(1.) The plaintiff is the appellant in this case. The suit was filed for a declaration that 1.50 acres of land covered by takhta No. 49 situate in mouza Nawar belonged to the plaintiff, and for recovery of possession of the land together with mesne profits. His case was that defendants 2 to 6 settled 23 bighas 6 kathas of land, including the disputed land, with the plaintiff at a rental of Rs. 17, and they also settled a similar area on a similar rent with defendant 1. The landlords, i.e. defendants 2 to 6, filed a rent suit (117 of 1927) against the plaintiff and defendant 1 jointly for recovery of arrears of rent of both the holdings of the plaintiff and defendant 1 at a rental of Rs. 101 and that suit was dismissed for default. There was another suit by them (375 of 1930) against the plaintiff and defendant 1 for recovery of arrears of rent for the years 1334 to 1337 Fs. at the same rate as was demanded in the previous rent suit. In the latter suit defendant 1 pleaded that his holding consisted of 43 bighas 4 kathas with a rental of Rs. 90 and that the plaintiff's holding (that is the plaintiff in this suit) was an area of 3 bighas 8 kathaa covered by khata No. 60. That suit was disposed of on a compromise by defendant 1. Under the compromise the landlord plaintiff withdrew the suit against the present plaintiff and the possession of the present plaintiff was interfered with by defendant 1. It led to a proceeding under Section 145, Criminal P.C. which was disposed of and then defendant 1 dispossessed the plaintiff from the area of 2 bighas 8 kathas.

(2.) Defendants 1 to 4 alleged that defendant 1 took the settlement of 43 bighas 4 kathas and the plaintiff took settlement of 3 bighas 8 kathas separately and not as alleged by him, that he was in possession of half of 43 bighas odd. The learned. Munsif dismissed the suit and the plaintiff went in appeal before the lower appellate Court. The lower appellate Court has confirmed the decision of the learned Munsif. Hence this second appeal. The only point urged in this appeal is that a certain number of documents which the plaintiff wanted to have brought before the trial Court were not taken into evidence by the trial Court and the lower appellate Court refused to take them in evidence at the appellate stage, or to remand the case to the trial Court for taking those pieces of documentary evidence into consideration and deciding the case after that. A few dates are important. The suit was filed on 30 November 1931. The petition for taking the documents in evidence was filed with certified copies of those documents on 25th August 1932. The order of the learned Munsif was "Call for the papers as prayed for," the prayer being to call for certain papers from the District Judge's record room at Arrah. This shows that the learned Munsif did not think at that stage that the petition was filed very late. The Munsif who sent for the papers did not continue in seizin of the case because it appears from the order sheet (O.16 of the trial Court) that the case was transferred to another Munsif, who ordered, on 10th December 1932, that the case would be taken up on 4 January 1933. On 4th January 1933 the defendants filed hazari.

(3.) The plaintiff filed a petition for time, but that petition was rejected on the ground that he should have taken steps for having the records before the Munsif at an earlier date. When the petition for time was rejected the plaintiff naturally filed hazari and the suit was taken up. After the day's work was over, on 4th January 1933, it appears that the Munsif agreed to let the plaintiff have a rubakar issued that day at the plaintiff's own risk. On the 5 January the plaintiff stated that the documents were expected that night and he wanted permission to file them as evidence, but by that time the evidence was already closed. On 6th January 1933 the plaintiff filed another petition stating that the documents had been despatched from the record-room of the District Judge of Arrah and he was expecting them on that day. Arguments were heard on that day but the documents were not taken in evidence. As to what happened on 6 January 1933 clearly appears from the affidavit that has been filed by the plaintiff's advocate and a copy of which has been served on the other side and about which there is no counter-affidavit. In para. 20 the plaintiff alleges that the documents were received by the office of the Munsif on 6 January 1933 and were actually placed before the Munsif during the course of the argument but that he was pleased to reject the prayer for taking them into evidence.