Decided on November 21,1968

HARLAL Appellant
GHASI Respondents

Referred Judgements :-


Cited Judgements :-



- (1.)THIS is a revision application by Harlal and Bhagirath defendants against an order of the appellate court setting aside the decree of the trial court dismissing a suit brought against them and against their mother Smt. Motia, respondent No 2, by Ghasi respondent No. 1 and remanding the case for decision to the trial court after recording additional evidence.
(2.)THE order of remand is really under sec. 151 C. P. C. although the learned District Judge has purported to pass it under order 41 rule 33 C. P. C.
The present suit was filed for possession of a Bara by Ghasi son of Champalal on 26-4-63 against Harlal and Bhagirath sons of Dhanna and their mother Smt. Motia widow of Dhanna. The case of Ghasi is that during the minority of Harlal and Bhagirath their mother Smt. Motia exchanged this Bara with a house by a registered deed dated 5-6-48 executed by Smt. Motia. , that Harlal and Bhagirath brought a suit against him for possession over the Bara which was finally dismissed on 25-8-62, and that after the dismissal of the suit the defendants forcibly took possession over it on 21-9-62. The suit was contested by Smt. Motia who denied having executed the deed dated 5-6 48. It was also contested by Harlal and Bhagirath on the ground that there was no legal necessity for the exchange. They also denied execution of the deed dated 5-6-48 by their mother. The trial court framed issue No. 2 as follows: - "whether defendants No. 1 and 2 had filed a suit against the plaintiff in respect of the same Bara which was dismissed on 23-12-61 and its appeal was dismissed on 25-8 62. " It recorded a finding on issue No. 2 in favour of the plaintiff. Despite this it did not hold that the defence of Harlal and Bhagirath was barred by the principle of res judicata. It framed issues No. 5 and 6, as follows : - "5. Was defendant No. 3 a limited owner and the document dated 5-6-48 is invalid on this account ?" "6. Was the document dated 5-6 48 prepared on account of legal necessity and is valid ?" On issue No. 6 it held that there was no legal necessity and therefore the deed dated 5-6-48 was invalid. On issue No. 5 it did not record any finding. As a result of the finding on all the issues arrived at by it, it dismissed the suit.

Against this decree the plaintiff preferred an appeal which was decided as indicated above.

The original deed of exchange dated 5-6-48 was filed by Ghasi in his defence in the previous suit and was proved by him against Harlal and Bhagirath. That deed was held to be genuine in that case. Ghasi obtained a certified copy of the deed from the court and filed it in this case. On his statement this document was exhibited as Ex. 1 without any objection on behalf of the defendants. The plaintiff also filed a copy of the plaint of Harlal & Bhagirath in the previous suit. On Ghasi's statement it was exhibited as Ex. 5. He also filed the original summons which he had received as defendant in the previous suit. This was exhibited as Ex. 6 on his statement. No objection was raised at that time that these documents were not proved. These documents were however not taken into consideration by the learned Civil Judge in his judgment. The learned District Judge has rightly observed in his judgment that no objection could be taken before him that these documents had not been duly proved: as was held by their Lordships of the Privy Council in Gopal Das vs. Sri Thakurji (l) and by this Court in Mst. Chandanbai vs. Jagjiwan-1al (2 ). Sec. 67 of the Evidence Act requires that if a document is alleged to be signed by any person the signature of that person must be proved to be in his or her handwriting. The document dated 5-6 48 purports to bear the thumb-mark of smt. Motia. It should not have been marked with exhibit number till some wit-ness had stated that Smt. Motia put her thumb-mark to it in his presence. The learned Civil Judge however marked it with an exhibit number (as Ex. 1) on the satement of Ghasi, who did not say that Smt. Motia put her thumb-mark to it in his presence. But having failed to raise any objection at the time when the document was marked with exhibit number it was not open to the defendants to raise an objection subsequently that the document had not been duly proved.

The learned District Judge could have decided the appeal treating docu-ments Exs. 1,5, and 6 to have been duly proved. It appears however that he required that these 3 documents should be proved in the manner provided by the Evidence Act. He therefore remanded the case. It was however not necessary for him to set aside the decree and remand the case for recording additional evidence. He should have recorded additional evidence under order ii rule 27 C. P. C.

I accordingly set aside the order of the learned District Judge and direct that he shall himself record additional evidence under order 41 rule 27 C. P. C. to prove documents Ex. 5 and 6. The defendants will be entitled to produce evi-dence in rebuttal of the evidence which the plaintiff might produce to prove these documents.

The appellate court shall thereafter dispose of the appeal in accordance with law at an early date.

The revision application is decided as indicated above. Parties shall bear their own costs.

The appellate court shall send the record to this Court after disposal of the appeal and it shall be put up before me on the administrative side. .


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