Toran Singh vs Imarti Bai & Ors.

I.A. No.574/2020 is filed by appellants under Section 5 of Limitation Act seeking condonation of delay of 49 days in filing this appeal.

Learned counsel for parties are heard on this application.

3 . It is averred in this application that the initial appellant could not arrange funds for payment of court fee, lawyer's fee and other expenses for filing this appeal. Therefore, the delay occurred in filing this appeal. The explanation appears to be bonafide inasmuch as the appellant would not derive any benefit by filing the appeal with delay.

4 . The application is accordingly allowed. The delay in filing this appeal is condoned.

The arguments on admission are heard.

The appeal is admitted on following substantial question of law:

With consent of learned counsel for both the parties and looking to the short issue involved, the appeal is heard finally.

8 . Appellants have filed this appeal under Section 100 CPC being aggrieved by the judgment and decree dated 11.09.2019 passed by District Judge, Shivpuri in Regular Civil Appeal No.45/2018 arising out of judgment and decree dated 27.04.2018 passed by Second Civil Judge, Class-I, Kailaras in Civil Suit No.2-A/2011 whereby their suit for declaration of title and possession has been dismissed.

9 . Initially, the suit was filed by one Toran Singh, who died during pendency of this appeal and is substituted by his legal heirs. Accordingly, for purposes of convivence, plaintiff in this order would mean the initial plaintiff 'Toran Singh' and respondents shall be referred as 'defendants'. The suit property in this order would mean land bearing Survey No.209 admeasuring 1.59 hectare situated in village Kathi, Patwari Halka No.85, Paragana Kailaras, District-Shivpuri.

It is the case of plaintiff that patta of the suit land was given to him in the year 1975-76. From the said date, he is in cultivating possession of the suit land. About 05 months before filing of present suit, plaintiff came to know that defendant no.2 started cultivating the suit land. On being asked, plaintiff was informed by defendant no.2 that he has became Bhumiswami of the suit land and therefore, he would cultivate the suit land. Plaintiff thereafter enquired into the revenue records from where he came to know that defendant no.1 & 2 have got the land mutated in their name in the revenue record fraudulently. The plaintiff denied transfer of suit land by him in favour of the defendants.

Plaintiff also averred that he never participated in the proceedings under Section 190 & 110 of the M.P. Land Revenue Code, 1959 (hereinafter referred as 'the Code') before the revenue authorities and the order dated 30.09.1994 passed in favour of defendant no.1 by the revenue officer is illegal having being obtained in collusion with revenue authorities. Plaintiff further averred about his unawareness about the said proceedings and the order passed by the revenue authority. Alleging that defendant no.1 & 2 have encroached upon his suit land, present suit was filed on 05.01.2011.

The defendants appeared and filed written statement denying the plaint averments. In substances, their case was based upon the order dated 30.09.1994 passed by the Court of Tehsildar, Kailaras in Case No.36/93-94/अ-46. The said case was registered under Section 190 of the Code and order was passed in favour of defendant no.1 on 12.09.1994 thereby conferring upon him the Bhumiswami rights in respect of the suit land. Defendants also averred that the aforesaid order was passed with the consent of plaintiff and the present suit has been filed with malafide intention.

The learned Trial Court framed issues and permitted the parties to lead evidence. For the purpose of decision of this appeal, it is sufficient to note that the plaintiff denied his signature over the summons allegedly served upon him by Tehsildar. He also denied his signature on other documents of said proceedings. The defendants, therefore, filed an application under Section 45 of the Indian Evidence Act requesting for examination of the plaintiff's signature over these documents of the case under section 190 of the Code. The said application was allowed and the plaintiff's signature was directed to be examined by the expert. The expert examined the plaintiff's signature and submitted his report, which is available on record of the Trial Court. As per the said report, expert found that the signature under examination were not of plaintiff.

The trial Court thereafter, dismissed the suit vide judgment and decree dated 27.04.2018. The expert report was not considered by the learned Trial Court on the ground that none of the parties have proved the said report and the report remained unexhibited. Importantly, the learned Trial Court in para 29 of its judgment drew an adverse inference against the defendants inasmuch as after having called the expert report, they did not prove the same. However, in the next para 30 of its judgment, the report was discarded on the ground that neither plaintiff nor the defendants have exhibited the said report. Consequently, relying upon the proceedings of the revenue case, the trial Court held that the order was passed in favour of the defendants is in presence of and with the consent of plaintiff. Issue of limitation was decided against the plaintiff relying upon the aforesaid proceedings.

1 5 . Plaintiff filed an appeal challenging the judgment and decree passed by the learned Trial Court, which has also been dismissed vide judgment and decree dated 11.09.2019. Challenging the same, present appeal has been filed.

1 6 . The centre of dispute between the parties is the proceedings undertaken by the Tehsildar under Section 190 of the Code in which the order dated 30.09.1994 was passed in defendants' favour. Based upon this order, the defendants claim to become bhumiswami of the suit land. The plaintiff has specifically denied that he ever participated in these proceedings. He has also averred that he was not aware about the proceedings and the order passed by Tehsildar in these proceedings. Undisputedly, the defendants themselves applied for expert examination, which was allowed by the learned Trial Court and consequently, the expert report was submitted before the Trial Court.

1 7 . It is correct that none of the parties have exhibited the expert report. However, the fact remains that the report was called at the instance of defendants and the same is available on record. Since the report was against the defendants, therefore, it was incumbent upon the defendants to have summoned the expert witness for cross-examination, if they so want. The plaintiff had no occasion to dispute the report as the same was in his favour. The Trial Court itself, ought to have fixed the case for examination of the expert witness. Thereafter, if no party comes forward to dispute the report, it could have been considered for decision of the case. However, since it was a material piece of evidence for resolving the dispute between the parties, the report of expert could not have been discarded without adopting aforesaid procedure. The learned First Appellate Court also erred in not considering this important aspect of the matter and illegally dismissed the appeal.

Considering the aforesaid, this Court is of the considered opinion that the expert report needs to be considered by the trial Court for just decision of the suit. For the said purpose, parties are required to be given an opportunity to submit the objection to the said report.

Accordingly, the impugned judgment and decree passed by the learned Trial Court dated 27.04.2018 passed in Civil Suit No.2-A/2011 and the First Appellate Court judgment and decree dated 11.09.2019 passed in Regular Civil Appeal No.45/2018, are set aside. The matter is remitted to the Trial Court for deciding the suit afresh after considering the report submitted by the expert. Both the parties are at liberty to examine/cross-examine the expert witness, if so warrant. Since, both parties have already led remaining evidence, no other evidence, except concerning the expert report, is required to be led by parties.

Consequently, this appeal succeeds and is hereby allowed.

Let record of the Courts below be sent back forthwith.