Bihari Baraik vs Chandradeo Mahto, Durga Baraik and Dinesh Baraik

D.G.R. Patnaik, J.—Heard counsel for the parties.

Prayer in this writ application is for quashing the order dated 4.8.2007 (Annexure-6) passed in Title Appeal No. 89 of 2004 by the Special Judge-cum- Additional Judicial Commissioner, Ranchi, whereby the prayer of the petitioner filed under Order 41 Rule 27 CPC for allowing him to adduce additional evidence by way of proving the cadestral Survey Record of Right and also for restoration of possession of the suit lands, has been rejected.

Facts of the petitioner in brief is as follows: A Title Suit No. 131 of 1996 was filed in the court of Sub-Judge, Ranchi by the respondent No. 2 against the present petitioner and others for a decree of declaration of his right, title and interest in respect of the suit land mentioned in the schedule of the plaint. The plaintiff''s claim is based on the ground that he had purchased the suit land by virtue of a Registered Sale Deed executed by the original defendant Jainath Baraik, who had earlier purchased the same from late Budhan Baraik by virtue of a Sale Deed dated 01.02.1983. Since after the date of purchase, the plaintiff claims to have obtained possession of the suit land and had remained in continuous occupation, but he was forcibly dispossessed on 2.3.1996 by the defendants/appellant

The petitioner/defendant contested the suit by filing a written statement challenging inter-alia the maintainability of the suit on the ground, that the originally recorded tenant being a member of the Scheduled Tribes, transfer of the land made by him without the permission of the Deputy Commissioner, under the provisions of the CNT Act, was illegal and as such, the plaintiff did not acquire any right, title and interest over the suit property. It was also pleaded that the suit is bad for non-joinder of the party in as much as, the Deputy Commissioner of Ranchi being a necessary party, was not impleaded as a party defendant in the suit. The defendant No. 2 namely, Jainath Baraik had also filed a separate written statement, though supporting the case of the plaintiff/respondent No. 2.

During the pendency of the suit, the defendant No. 2 Jainath Baraik had died and in absence of his legal hear being substituted, the learned court below had declared that the suit had abated against the deceased defendant.

At the trial, both parties had adduced their respect evidences. Suit was decreed in favour of the plaintiff holding that the suit was maintainable.

Being aggrieved with the judgment and decree of the trial court, the petitioner/defendant No. 1 preferred an appeal before the first Appellate Court.

During the pendency of the appeal, the petitioner filed a petition under Order 41 Rule 27 CPC, praying for allowing him to adduce additional evidence by way of introducing Cadestral Survey Records of Right which was contested by the respondent/plaintiff Upon hearing the rival parties, the appellate Court vide its impugned order, dismissed the prayer on the ground that the petitioner has not made out any ground for allowing him to adduce evidence.

Assailing the impugned order, counsel for the petitioner submits that the impugned order was passed on the point of law as well as on facts and has not appreciated that the additional evidence which the petitioner had wanted to adduce, was in fact necessary for just decision of the case. Learned Counsel explains further that the documents sought to be produced by the petitioner is a material bearing upon the dispute between the parties and would have substantiated the petitioner''s claim that the purported sale deed executed by the previous land holder in favour of the plaintiff being in violation of the provisions of the CNT Act, is illegal and did not confer any valid right, right and interest in favour of the petitioner.

The respondents/plaintiffs has filed the counter-affidavit, denying and disputing the claim of the petitioner. Counsel for the respondents would explain that the present writ application is not maintainable and the grounds stated therein, are totally misconceived and misleading. Learned Counsel explains that the petitioner has wanted to take advantage of entry made in the Cadestral Survey Records of Right by claiming that the caste of Chik Baraik belongs to the Scheduled Tribes, but the error was duly corrected in the subsequent Survey Records. The petitioner/appellant himself had declared in the sale deed executed by him, that he is by caste Yaduvanshi Baraik, affirming thereby that his ancestor is the originally recorded tenant belonging to the Scheduled Tribes Community. Learned Counsel adds further that on this controversy, defendant had adduced evidence and the trial court after considering the evidences, had recorded its findings holding that the suit was maintainable.

From the rival submissions, the facts which emerge are that though, the petitioner/defendant No. 1 had claimed that the originally recorded tenant belongs to the Scheduled Tribes Community and had disputed the maintainability of the suit on the ground that the transfer even if made by the defendant No. 2 in favour of the plaintiff, was in violation of the provisions of the CNT Act and is illegal and in support of his contention, he had also adduced evidence, but he had never produced Cadestral Survey Khatiyan, nor had made any prayer before the Trial Court to enable him to produce the same and to adduce any evidence. Apparently therefore, it is not a case where the trial court had refused to admit the evidence of the petitioner which ought to have been admitted. The petitioner/defendant No. 1 had not even pleaded that the concerned document which he wants to adduce as an additional evidence, was in his possession and not within his knowledge and nor he could produce even after exercising his due diligence. The Appellate Court has rightly held that these essential conditions as required under the provisions of Order 41 Rule 27 CPC are lacking. The Appellate Court has also taken note of the fact that the petitioner had availed ample opportunity to adduce whatever evidence he had desired in support of his claim and the same was duly considered by the Trial Court. On the basis of the above observation, the Appellate Court did not find any reason to hold that the documents sought to be adduced as an additional evidence, was required to enable it to pronounce the judgment or for any other substantial cause.

Even otherwise, amongst the various grounds taken by the petitioner/appellant in his memorandum of appeal, it has also been pleaded that there was error in the findings of the Trial Court on the issue of maintainability of the suit. The Appellate Court would still be at liberty to re-consider this issue even at the stage of final argument of the appeal as to whether the document which the petitioner/appellant has sought to adduce, would be necessary for the just decision of the case.

In the light of the above discussions, I do not find any infirmity or impropriety in the impugned order as passed by the Appellate Court. Accordingly, this application is dismissed.