Sri Shyamal Kumar Mukherjee vs The State of West Bengal

Soumen Sen, J.—There are two revisional applications filed in connection with T. Appeal No. 6 of 2008. Both the revisional applications have been filed by the plaintiff, being aggrieved by the order passed by the Civil Judge, (Senior Division), Ranaghat on 22nd December, 2010 being the subject matter of C.O. 1816 of 2011 and another impugned order dated 5th September, 2011 being the subject matter of challenge in C.O. No. 4206 of 2011. The plaintiff filed a declaratory suit being Title Suit No. 55 of 2004 praying, inter alia, a decree for declaration of title in respect of "A" and "B" Schedule properties. It was alleged in the plaint that Schedule "A" and "B" properties is a pucca two storied old dwelling house.

The original owners were intermediaries and became owners of the schedule properties by reason of a compromise in a partition suit instituted by them being T.S. No. 52 of 1925.

Khagendra Nath Mukherjee the father of the plaintiff out of 15 decimals got 12 decimals of land which he retained by filing "B" form. It was alleged that the suit property in "B" Schedule cannot vest since it was allowed to be retained and accordingly such vesting is illegal and without jurisdiction.

The State of West Bengal contested the suit by filing the written statement. The suit was however dismissed on contest. The plaintiff being aggrieved preferred an appeal. In the appeal an application was filed on 6th May, 2010 under Order XLI, Rule 27 read with Section 151 of the CPC for leave to adduce additional evidence on the ground that in the written statement filed by the State of West Bengal. It was claimed that four and half decimals of land of the said plot was vested in the State and the State claimed to have taken possession of the said vested land.

The petitioner however contended that the same is factually incorrect in view of the fact that Sushama Mukherjee submitted return to retain the said property along with other properties which was allowed.

The plaintiff-petitioner submitted that the certified copy of the order-sheet of Return Case No. 13 of 1972 along with the tax documents which would clearly show that the said order of vesting is illegal could not be produced since they were not readily available with the plaintiff at the time of institution of the suit and during evidence. The plaintiff accordingly could not produce the five documents which they wanted to produce at the appellate stage by way of additional evidence, namely, the municipal tax payment receipts, certified copy of the municipal assessment register, certified copy of order-sheet of Return Case No. 13 of 1972, certified copy of a decree in T.S. No. 172 of 1918. It was submitted that unless an opportunity is given to adduce such additional evidence, the plaintiff would suffer irreparable loss and prejudice. It was contended that the dwelling house could not have been vested and the same would be evident from the order-sheets of Return Case No. 13 of 1972.

Thereafter the plaintiff filed an application on 25th November, 2010 for amendment of the petition filed under Order XLI, Rule 27 of the Code of Civil Procedure. In the said application for amendment the petitioner wanted to rely upon the certified copy of the order-sheets of Return Case No. 13 of 1972 along with the certified copy of the return filed by Sushama Mukherjee. In support of such prayer for amendment it was contended that the appellant had recently come to ascertain that the order-sheet in details would disclose the particulars of the retained lands and it would also show that Sushama Mukherjee along with others were allowed to retain 8.65 acres of land including the suit land. Such evidence would be required for proper adjudication of the disputes.

In view thereof, by the said petition the petitioner wanted to insert an additional item being item No. 5 to the existing 4 items mentioned in the earlier petition dated 6th May, 2010.

While the said application was pending and without disposing of the said application for amendment the learned Civil Judge (Senior Division) proceeded to hear the application as originally filed under Order XLI, Rule 27 of the Code of Civil Procedure. Although as it appears from the impugned order that the learned Trial Judge was of the view that the application does not confirm to the requirement under Order XLI, Rule 27 of the CPC but took note of the documents sought to be relied upon by way of additional evidence and felt that the said documents are not necessary to decide the issue on the ground that if the procedure for vesting is improper, there is a proper procedure against the vesting. The other ground for rejecting the said application was that there was no contemporaneous complaint filed with the police station regarding missing of any of such documents.

The rejection of the said application resulted in filing of C.O. 1816 of 2011. Thereafter, it seems that the application for amendment was taken up for consideration and the same was rejected by an order dated 5th September, 2011 on the ground that since the unamended original application under Order XLI, Rule 27 of the CPC has been disallowed and rejected, there is no necessity to consider the said application for amendment of the petition under Order XLI, Rule 27 of the Code of Civil Procedure.

The main objection of the State appears to be that such additional evidence should not be allowed since they were sought to be tendered after judgment and decree and there is nothing on record to show that the plaintiff exercised due diligence or that such document could not have been produced by exercising due diligence during trial and accordingly such prayer, if allowed, would result in miscarriage of justice.

The said application for amendment however was not rejected on the said ground but on the ground that on an earlier occasion the petition under Order XLI, Rule 27 of the CPC was rejected and accordingly there is no new circumstances to allow the said application for amendment of the petition for adducing additional evidence.

The learned appellate Court however completely missed out that by way of amendment apart from the Return Case No. 13 of 1972, the plaintiff wanted to rely upon the return and other order-sheets in relation to such vesting proceeding by way of additional evidence.

The learned counsel appearing on behalf of the opposite parties submits that the said application should not be allowed since no sufficient cause is shown for non- production of the said documents earlier and relied upon Shyam Gopal Bindal and Others Vs. Land Acquisition Officer and Another,

In the said decision, the Hon''ble Supreme Court however allowed additional evidence since the documents sought to be produced were judicial orders declaring ownership right of the appellant which had a crucial bearing on merits of their claim. In my view, the said judgment supports the petitioner more than the opposite parties.

The other decisions relied upon by the petitioner reported in 67 C.W.N. 12 and West Bengal Govt. Employees (Food and Supplies) Co-operative Housing Society Ltd. and Others and The State of West Bengal and Others Vs. Smt. Sulekha Pal (Dey) and Others, Co-operative Housing Society Limited & Anr. Vs. Sulekha Pal (Dey) & Ors.) are on the aspect of right of an intermediary under the West Bengal Estate Acquisition Act, 1953. This matter also raises an issue as to the right of the plaintiff to hold on to the land since it is clearly averred in the plaint that the father of the plaintiff was an intermediary. The right of an intermediary in West Bengal Estate Acquisition Act, 1953 was discussed in West Bengal Govt. Employees (Food and Supplies) Co-operative Housing Society Ltd. and Others and The State of West Bengal and Others Vs. Smt. Sulekha Pal (Dey) and Others, It was held that the right of the intermediaries to retain certain lands and properties u/s 6 does not come to an end once and for all nor can be said to become extinct, irretrievably after the prescribed date as envisaged in Section 6(5) read with Rule 4-A of the Rules. The latter part of sub-section (5) of Section 6 stipulates that if no choice is exercised u/s 6(1) by the intermediary during the prescribed period the Revenue Officer after giving the intermediary an opportunity of being heard, shall allow him to retain so much of the lands as do not exceed the limits specified in clauses (c), (d) and (j) of sub-section (1) of Section 6 of the Act. Even before the Collector actually takes khas possession of the estate and rights of an intermediary therein, the intermediary will have not only an opportunity but a right to choose the lands which he could retain as provided for under sub-section (1) of Section 6 of the Act. That such understanding and construction of the relevant provision alone would be proper and necessary to be adopted gets reinforced from sub-section (6) of Section 10.

In the said case the it was found that effective, actual and physical possession of the properties appears to have continued with the intermediary in question and subsequently with his heirs and the Collector/Revenue Officer had neither dispossessed them nor taken over physical or khas possession of the estate and the rights comprised therein in the manner statutorily mandated and provided for u/s 10(2) of the Act and Rule 7 of the Rules made thereunder. For the purposes of the Act, it is the dispossession by the Collector/Revenue Officer in the manner envisaged in the statutory provisions under the Rules made thereunder that alone could get legitimatised for determining the rights of parties. Consequently, the right of the respondents to express their choice of retention has been rightly sustained by the High Court.

The learned counsel appearing on behalf of the plaintiff-petitioner getting sustenance from the said observations submits that under Order XLI, Rule 27 of the CPC the Court would permit such additional evidence, if the Court is satisfied that such evidence not only would enable it to pronounce judgment but also for in any other substantial cause.

The learned counsel for the petitioner relied upon K. Venkataramiah Vs. A. Seetharama Reddy and Others, and submitted that the power of the appellant, Court is wide and if the Court is of the view that there are substantial cause for which such evidence should be taken on record, the Court would permit production of such additional evidence at the appellate stage. The said judgment was rendered prior to the amendment of CPC in 1977. Under the amended provision, amongst others, it has been specifically stated that the party seeking to produce additional evidence must establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, produce by him at the time when the decree appealed against was passed.

The learned counsel for the opposite parties also relied upon decision reported in AIR 1990 Ori 183 Parbati Vs. - Duryodhan Samantaray. The said decision was relied upon for the proposition that the even if in relation to production of certified copy of the documents which are in the nature of public document, the applicant would be required to establish that he made application for certified copies prior to the disposal of the suit and he sought for adjournment of the hearing of the suit since the documents were not available or he called for those documents through the process of the Court and the Court either refused adjournment to give opportunity to the appellant to produce the same or refuse to call for the same.

The judgment was delivered in a proceeding in which the plaintiff asserted his right as an adopted son of the defendant father. In that proceeding certain certified copies were relied upon. However, in the instant proceeding it is a litigation between a citizen and the State. The State is in possession of all the relevant documents. It is expected that for a fair trial the State must make available all the documents which could have a bearing on the issue since any order of vesting would cause deprivation of a right to a citizen to enjoy his/her property as owners thereof. The State ordinarily should not object to the production of the documents which belong to the State and/or originated from the State. These distinctions are required to be kept in mind while deciding the said application. The judgment relied upon by the State is clearly distinguishable on facts.

In the petition for adducing additional evidence the petitioner has contended that his tax payment receipts of the said house was misplaced and could not be placed during the trial of the suit and accordingly the same could not be filed.

It was further stated that Sushama Mukherjee submitted the return to retain the said property along with the other property which could not be filed at the relevant point of time in view of the file containing such documents was misplaced. The documents that are sought to be relied upon are all documents issued by and/or on behalf of the State.

This issue is to be viewed also from another angle. The said order of vesting has been passed under the relevant land laws which permits retention of land to certain extent and recognize the right of an intermediary.

An elaborate procedure is laid down before the properties are acquired or an order of vesting is passed. The documents that are sought to be relied upon are the documents which if proved would support the claim for retention and displace the order of vesting. The plaintiff only says that if these documents are allowed to be adduced as an additional evidence, this only would go to show that the land over which the State is now claiming to have been vested in the State was in fact allowed to be retained and accordingly the said portion of the land could not have been vested. The appellate Court should have looked into such documents and decide their relevancy and/or requirement of such documents for proper and effective adjudication of the issues involved in the appeal.

These are the questions which goes to the root of the matter and accordingly the Court cannot turn its blind eyes to such documents which would certainly have a bearing on the pending proceeding.

In view thereof, I am inclined to interfere with the order passed by the Learned Civil Judge (Senior Division). Accordingly the impugned orders are set aside. The Learned Civil Judge (Senior Division) is directed to consider the application filed by the petitioner afresh after allowing the amendment.

The petitioner is permitted to carry out such amendment to the original application filed on 6th May, 2010 within a period of one week from date, reply, if any, within a week thereafter.

The learned Trial Court is directed to hear out the application for additional evidence after the amendment is carried out in accordance with law. The learned Trial Judge would consider the relevancy and admissibility of the documents sought to be relied upon by way of additional evidence. In the event, the Trial Judge allowed such additional evidence, the Court should record its reasons for his admission.

It is needless to mention that view expressed by this Court are prima facie and should not influence the decision of the Court when the Court would ultimately decide the said application for additional evidence after amendment on merits.

This Court feels that the Learned Civil Judge should have decided the application filed under Order XLI, Rule 27 of the CPC after allowing the amendment.

The revisional application thus succeed. There will, however, be no order as to costs. Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.