WALI AHMAD KHAN Vs. MAHMUDA BIBI

JUDGEMENT

(1.) This writ application is directed against the order dated 6.8.2008 passed by Additional District Judge-1 st , Garhwa in Title Appeal No. 8 of 2003, whereby and whereunder application of petitioner/appellant under Order 41 Rule 27 read with section 151 of CPC for additional evidence rejected.

(2.) It appears that plaintiffs filed a partition suit bearing Title Partition Suit No. 5 of 1987 for partition of lands pertaining to Khata No. 17 and 55, details of which given in Schedule A of the plaint. It further appears that the said suit was decreed. It then appears that an appeal filed against the judgment and decree, passed by the learned trial court, before the Patna High Court, Ranchi Bench, Ranchi vide FA No. 95 of 1996 R. However after amendment of pecunary jurisdiction of District Judge for entertaining appeal, the aforesaid First Appeal transferred to the court of learned District Judge, Garhwa for disposal. Accordingly, same was renumbered as Title Appeal No. 8 of 2003. It further appears that during the pendency of aforesaid title appeal, appellant/petitioner filed an application under Order 41 Rule 27 for adduction of additional evidence and prayed that (I) certified copy of withdrawal petition filed by Musan Khan, plaintiff in partition suit no. 1 of 1962, and (ii) certified copy of order of Additional Sub Judge, Palamau at Daltonganj dated 4.9.1964 and 28.9.1964 passed in partition suit no. 1 of 62, and (iii) summon and carbon copy of the plaint of partition suit no. 1 of 1962 issued by the court of Sub Judge, Palamau , Daltangonj, and (iv) certified copy of Khasmahal and Khatiyan of Khata No. 55 and 87 of Pratapor, P.S.- Garhwa isued by Khas Mahal Officer be taken as additional evidence. It is stated that the said documents were filed in the trial court during the pendecny of title suit no. 5 of 1987, but it had not been marked exhibits. It is submitted that the said documents are public documents being certified copy of court proceedings, pleadings and copy of khas mahal khatiyan. It is submitted that as per section 79 of Indian Evidence Act, there is a presumption of genuineness of certified copy. It is stated that the learned appellate court below without considering the aforesaid facts and circumstances of the case had refused to accept aforesaid documents as additional evidence, though the same are necessary for deciding the issues between the parties.

(3.) It is submitted by Sri Rajiv Ranjan, learned counsel for the petitioner that according to the provision of Order 41 Rule 27, if it is shown by either of the party that any document is necessary for deciding any issue properly, the appellate court is duty bound to allow the said party to produce documents in evidence. It is submitted by learned counsel for the petitioner that the documents stated above are necessary for giving just decision on the issue of res judicata, but the learned court below had not considered this aspect of the matter and rejected the application of petitioner. It is submitted that the said documents were filed in the court below itself, but unfortunately the same were not marked as exhibits. Under the said circumstance, the learned appellate court below ought to have allowed the prayer of appellant/petitioner for producing the said documents as additional evidence for proper adjudication of issues between the parties.