NAWAL KISHORE SHAW Vs. MANOJ SHAW

JUDGEMENT

(1.) Heard Mr. Kaushik Sarkhel, learned counsel appearing for the petitioner and Mr. Nityanand Prasad Choudhary, learned counsel appearing for the respondents.

(2.) The petitioner has preferred this writ petition for quashing the order dated 01.10.2013 passed by the District Judge, 1 st, Jamtara in Title Appeal No. 6 of 2012, whereby, the petition filed by the present petitioner under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for adducing additional evidence at the appellate stage has been rejected.

(3.) The facts of the case, as explained by the learned counsel for the petitioner, are that the father of respondent nos. 1, 2 and 3 namely Sridayal Shaw filed Title Suit No. 35 of 2004 before the learned Subordinate Judge-I, Jamtara for declaration of right, title and interest and also for recovery of possession, damages and injunction in connection with plot no. 971 of Mouza Narayanpur appertaining to A.K.J. No. 80. After institution of the title suit, the present petitioner being the defendant in the suit was noticed, who after appearance filed his written statement. Thereafter, the witnesses were examined on behalf of the respondents/plaintiffs as well as by the petitioner/defendant and ultimately the learned Senior Civil Judge, 2 nd, Jamtara decreed the suit in favour of the respondents/plaintiffs vide judgment dated 10.05.2012. Aggrieved with the said judgment dated 10.05.2012 passed in Title Suit No. 35 of 2004, the petitioner herein preferred an appeal before the learned Principal District Judge, Jamtara, which was registered as Title Appeal No. 6 of 2012. The said appeal was transferred to the Court of learned District Judge, 1st, Jamtara. Thereafter, the appeal was admitted and notices were issued to the respondents. In Title Suit No.35 of 2004, the respondents/plaintiffs have stated in the plaint that out of poverty, Most. Parwati Kumari had given a room to Dhannalal Poddar to use it as go-down and in lieu of that Dhannalal Poddar used to give some money or rice from time to time to Most. Parwati Kumari. Thereafter, Dhannalal Poddar had stopped making payment and accordingly Most. Parwati Kumari filed a Raiyati Eviction Case No. 80 of 1979-80 before the Sub-Divisional Officer, Jamtara under the Santhal Pargana Tenancy Act. In that eviction case, Dhannalal Poddar was noticed and thereafter he filed a show-cause stating that he has no claim over the said land and in pursuance to the show-cause filed by Dhannalal Poddar, an enquiry was conducted by Halka Karmchari as well as Circle Inspector at Narayanpur Circle. A report was submitted by Halka Karmchari stating therein that the house of Most. Parwati Kumari was occupied by one Deoki Devi, who was living in that house with her younger brother and husband. On the basis of the said report, the Raiyati Eviction proceeding was dropped and thereafter Most. Parwati Kumari filed an appeal before the Deputy Commissioner, Dumka against Deoki Devi and Dhannalal Poddar, which was also dropped by the Deputy Commissioner, Dumka on 24.07.1996. Thereafter, the respondents/plaintiffs filed Title Suit No. 35 of 2004 stating therein that there is documentary evidence to show that till the year 1979, the land and the structure was in occupation of Dhannalal Poddar and how Dhannalal Poddar is having no right and title to allot land to Deoki Devi, who is not known to the plaintiffs and lastly it was stated in the plaint that Nawal Kumar Shaw i.e. the petitioner, who is the son of Deoki Devi has no right, title and interest over the said land. The show-cause filed by Dhannalal Poddar was not exhibited by the respondents/plaintiffs and the petitioner was in search of the said show-cause filed by Dhannalal Poddar and because of which, statement has been made by this petitioner in the written statement at paragraph 9 that from the show- cause of Dhannalal Poddar, the possession of the defendants' predecessor Laxman Shaw since 1935-36 could be established. In paragraph 8 of the plaint, the respondents/plaintiffs have only mentioned a part of the statement of Dhannalal Poddar made in the show-cause, but has suppressed other part of the show-cause filed before the S.D.O. in R.E. Case No. 80 of 1979-80. The copy of the said show-cause was lying with Dhannalal Poddar and subsequently after his death, the said file could not be traced out by his family members and during trial in spite of due diligence taken by the petitioner, he could not procure the said copy of the show-cause and filed the same during trial. During pendency of Title Appeal No. 6 of 2012, the petitioner could anyhow found that show-cause filed by Dhannalal Poddar in R.E. Case No. 80 of 1979-80 and the petitioner filed an application under Order XLI Rule 27 of the C.P.C. for adducing additional evidence to prove the said show-cause in the admission stage as the said show-cause has of great importance and the said show-cause would show the possession of defendants' predecessor Laxman Shaw since the year 1935-36 on 03.07.2013. In the appellate court below, the respondents filed reply to the application dated 03.07.2013 stating that the application filed by the petitioner is not maintainable and Dhannalal Poddar or his successor is not a party to the original suit and they have disclaimed the suit property before the revenue authority. It was also stated in the reply that the petitioner has not tried to examine said Dhannalal Poddar or any other person to prove that the said show-cause was filed by Dhannalal Poddar and it was further asserted that the petitioner is trying to delay in disposal of the title appeal. The application filed under Order XLI Rule 27 of the C.P.C. was rejected by the learned District Judge, 1st Jamtara vide order dated 01.10.2013 and held that there is no scope for the petitioner to adduce additional evidence, in this regard in the said appeal and, therefore, the said application was dismissed vide order dated 01.10.2013. Aggrieved with this order, the petitioner has filed this writ petition before this Court.