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Judgment
Heard Mr. S Lodh, learned counsel appearing for the appellants as well as Mr. S Bhattacharjee, learned counsel appearing for the respondent.
This is an appeal under Section 100 of the CPC from the judgment and order dated 25.03.2017 delivered in Title Appeal No.28/2016 by the District Judge, North Tripura, Dharmanagar reversing the judgment dated 13.06.2016 passed by the Civil Judge (Junior Division), Dharmanagar, North Tripura in TS No.24/2014.
At the time of admission, the following substantial question of law was framed:
"Whether the consideration of Khatian No.743 which was not admitted is perverse or beyond jurisdiction?"
Mr. Lodh, learned counsel appearing for the appellants, at the outset, has submitted that though in the substantial question of law, reference of Khatian No.743 has been made, it has to be clearly stated that Khatian No.743 was admitted in the evidence but the corrected Khatian No.743 was not admitted in the evidence.
Both the counsel appearing for the parties have admitted that at the time of filing of the appeal in the court of the District Judge, North Tripura, Dharmanagar, the respondent herein, the appellant in the first appeal being TA No.28 of 2016, filed a petition under order XLI, Rule 27 of the CPC for admitting Khatian No.743, as corrected, in the record.
According to Mr. Lodh, learned counsel appearing for the appellants, no notice was issued on the said petition, nor any opportunity was given to the respondent herein for opposing or accepting the prayer made in the petition made under Order XLI Rule 27 of the CPC.
But the first appellate court has recorded in para 8 of the said judgment that the respondents, meaning the appellants herein, admitted the contents of the corrected Khatian No.743 showing the name of the appellant as the possessor on the northern boundary.
Mr. Lodh, learned counsel appearing for the respondent has immediately responded to such submission and stated that no such admission was ever made and the appellant was never given any opportunity to contest the said petition filed under Order XLI Rule 27 of the CPC.
Mr. Bhattacharjee, learned counsel appearing for the respondents has fairly submitted that the matter may be remanded.
Having situated thus, this Court is of the view that the judgment dated 25.03.2013 as delivered in Title Appeal No. 28 of 2016 is required to be interfered with and accordingly it is ordered. The said judgment dated 25.03.2013 is set aside for purpose of remanding the appeal to the court of the District Judge, North Tripura, Dharmanagar [the first appellate court].
The first appellate court shall first afford an opportunity to the appellants to file their response to the petition for accepting additional evidence [Khatian No. 743, as corrected] and thereafter, on hearing, whether the said document would be accepted in the record of evidence, will be decided by the first appellate court. On affording opportunities of hearing to the parties, the first appellate court [District judge, North Tripura, Dharmanagar] shall deicide the appeal, preferably within a period of 6 months from the date of receiving the records.
The respondent herein is given liberty to amend the petition filed under Order XLI Rule 27 of the CPC, if it is so required.
In terms of the above, this appeal stands allowed with the order of remand.
Draw the decree accordingly. Send down the LCRs thereafter.