Tarun Kumar Gupta - (1.) DEFENDANT is the appellant in this case of judgment of reversal. The respondent / plaintiff filed said suit for ejectment with the following averments:- The defendant was the original owner of `Ka' schedule property. Out of 11 decimals of said land he sold out .04 decimals of land to his brothers. The defendant sold out .03 and half decimals of land out of remaining .07 decimals of land to the plaintiff under registered kobala dated 1st March, 1969 which was fully described in schedule Ka-2 of the plaint. The plaintiff raised structure thereupon in 1975 and started to keep his agricultural implements, bamboo etc. The plaintiff also possessed remaining vacant portion by planting banana trees. Later on, the plaintiff permitted the defendant in October, 1983 to use said room for 2 years as his blacksmith shop as a licensee. In spite of revocation of said licence in October, 1985 the defendant did not vacate said Ka schedule land. Hence, was the suit for eviction of the licensee with other consequential reliefs .
(2.) THE appellant defendant contested the said suit by filing a written statement alleging, inter alia, that he got Ka schedule property comprising of 11 decimals of land from his father through a deed of gift and later on, sold out .04 decimals of land to his four brothers. His further case is that later one of his brother Kalipada sold back .01 decimals of land to him. In 1375 B. S. he incurred some loans from the market for marriage ceremony of his daughter and that only on receipt of Rs.200/- from the plaintiff, he executed a sale deed in respect of .03 and half decimals of land at a consideration of Rs.1500/- with the understanding that plaintiff would pay back balance amount of Rs.1300/- very shortly. It is further case that as the plaintiff failed to pay said balance amount of Rs.1300/- defendant did not deliver possession of the suit property to the plaintiff and continued to possess the same as its owner. It is further case that when the plaintiff tried to occupy the suit property on 22.11.1375 B. S. he was obstructed by the defendant and his men. Defendant was all along in the possession of the suit property and he also acquired a title to it by way of adverse possession. Learned Trial Court framed several issues and dismissed the suit after contested hearing. Plaintiff preferred an appeal and the appeal was allowed by passing a decree of eviction of the defendant. Being aggrieved, the defendant has preferred this second appeal. The following substantial questions of law were formulated for hearing of the second appeal:- (a) For that the learned Lower Appellate Court after allowing application under Order 41 Rule 27 of the Code of Civil Procedure did not give an opportunity to the appellant to adduce rebuttal evidence thereof and, as such, the findings of the appellate court in reversing the decree of the trial court is bad in law. (b) Whether the learned Lower Appellate Court substantially erred in law by holding that the case of the adverse possession as taken up by the defendant was not proved, though there was sufficient evidence to that effect. (c) Whether the learned Lower Appellate Court substantially erred in law by not dismissing the suit as barred by limitation under Article 65 of the Limitation Act. (d) Whether the learned Court of appeal below substantially erred in law by disregarding cross-objection of the defendant that entire consideration money was not paid to the defendant by the plaintiff at the time of sale, though there was evidence in support of such claim of the defendant and that in the process judgment of the Lower Appellate Court was perverse. Mr. Haradhan Banerjee, learned counsel for the appellant / defendant submits that learned Lower Appellate Court partly allowed the application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure filed by the appellant plaintiff by exhibiting one receipt alleged to be issued by P.W.4 without giving any opportunity to the defendant to contradict the same. According to him, on that score alone the impugned judgment is liable to be set aside and to be remanded back for giving opportunity to the present appellant to adduce evidence to contradict said document.
(3.) IN support of his contention he refers case laws reported in AIR 1976 Supreme Court page 2403 (The Land Acquisition Officer, City Improvement Trust Board, Bangalore vs. H. Narayanaiah) and 2008 (4) CHN page 162 (National Film Development Corporation Ltd., vs. Shantilal Bakliwal). There is no denial that if any document is admitted into evidence by allowing an application under Order 41 Rule 27 of the Code of Civil Procedure then the Court should record reasons for said admission and that too after giving opportunity to the adversary to refute said document by adducing evidence. The aforesaid case laws reiterated those settled principles of law. Mr. Biswajit Basu, learned counsel for the respondent plaintiff, on the other hand, submits that though learned Lower Appellate Court in the judgment made observations to the effect that the application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure filed by the plaintiff was allowed in part permitting the document showing purchase of bricks by plaintiff from P.W.4 to be exhibited but there is nothing in the Lower Court record to show that said document was really exhibited and that learned Lower Appellate Court relied on said document at the time of giving his judgment, and hence no prejudice was caused to the defendant.;