FAGU MAHATO AND ORS. Vs. SHANKAR SAO (MAHATO)

JUDGEMENT

(1.) Aggrieved by order dated 10.2.2014 whereby, application dated 4.9.2013 for recalling the plaintiffs' witness No. 1 for proving the original document has been rejected, the present writ petition has been filed. The petitioners are plaintiffs in Title Suit No. 18 of 2007. The suit was instituted for a decree of declaration of right, title and interest over Schedule -A and Schedule -B properties. The plaintiffs also prayed for a decree for removing two shutters fixed in the lane (gali) causing obstruction for going to the main road from the house of the plaintiffs and the shutter which was fixed in front of sweet meat shop. In the plaint, the plaintiffs asserted that the Jamindar of Jharia Raj Estate late Raja Kali Prasad Singh executed a registered Indenture dated 11.9.1947 for a permanent raiyati right over Plot No. 2182 measuring about 0.01 decimal, in Plot No. 2183 area about 0.16 decimals and a portion of Plot No. 2184 on annual rent of rupee one and cess three paise. The plaintiffs filed list of documents on 2.3.2007 which contained copy of the original deed No. 7512 dated 11.9.1947. After the parties closed their evidence and the suit was fixed for final argument, application dated 4.9.2013 was filed by the plaintiffs for marking deed of Indenture bearing No. 7512 dated 11.9.1947. The said application has been dismissed vide impugned order dated 10.2.2014. Aggrieved, the petitioners filed the present writ petition.

(2.) The learned counsel for the petitioners submits that, the deed of Indenture dated 11.9.1947 has been specifically pleaded by the plaintiffs in Title Suit No. 18 of 2007 and in the proceeding of the Title Suit, a copy of deed No. 7512 dated 11.9.1947 was filed along with examination -in -chief of P.W. 1 namely, Fagu Mahato. It is contended that due to inadvertence though other documents were marked, the deed of Indenture dated 11.9.1947 could not be marked and therefore, application dated 4.9.2013 was filed however, the trial court has erroneously rejected the prayer seeking permission to mark the said document as an exhibit.

(3.) Per contra, Mr. Birendra Kumar, the learned counsel for the respondent submits that, it is the duty of the plaintiff to mark a document through his witnesses. Though the plaintiffs got other documents marked through P.W. 5 namely, Lakhiram Mahto and P.W. 6 namely, Raju Kumar Sao, the plaintiffs failed to exhibit deed of Indenture dated 11.9.1947. After the parties closed their evidence and the suit was fixed for final argument, at that stage the plaintiffs cannot be permitted to fill up lacuna in their case. Referring to Order XVIII, Rule 4 C.P.C., the learned counsel for the respondent submits that, if the plaintiffs have failed to mark a document, at a later stage they cannot be permitted to get the document exhibited.