Modi, J. - (1.) THIS is a second appeal by the plaintiff Mst. Dhan Kanwar in a suit for declaration and possession.
(2.) THE dispute relates to a certain agricultural land measuring 43 odd Bighas bearing Khasra No. 98 in village Gangatpura in the former State of Bundi. THE case of the plaintiff was that one Bhanwarlal was her agent or mukhtar and had been working as such for about twenty years or so. This Bhanwarlal was the father-in-law of the contesting respondent Mst. Rajubai and died some time in 1947. Madho Meena was the Khatedar of the land in dispute. He had made a mortgage with respect to this land in favour of the appellant Dhan Kanwar for a sum of Rs. 175/- by a registered deed dated the 6th March, 1941. THE plaintiff's case further was that Madho had taken other loans from her from time to time, the total amounting in all to a sum of Rs. 1158/ -. Madho died without being able to pay off the debts. THEreafter Madho's heirs, namely his son Ramkishen and his widow Mst. Bhuli, realising their inability to liquidate the debt, executed a sale-deed in favour of the plaintiff on the 22nd June, 1946, with respect to the land in dispute. THE plaintiff had always understood that the sale was in her own favour, but after Bhanwarlal's death who was apparently managing the entire land on behalf of the plaintiff, she found that the daughter-in-law of Bhanwarlal, Mst. Raju, had put herself in possession of a half portion of the said land. THE plaintiff required Mst. Raju to give up her unauthorised possession as, according to the former, the entire consideration for the sale had been provided by her; but Mst. Raju refused to do so, and it was then that she was informed that the sale-deed executed by Ramkishan and Mst. Bhuli was not only in favour of Mst. Dhan Kanwar but in favour of Mst. Raju also. THE plaintiff's case, put briefly, therefore, was that Bhanwarlal deceased had managed to have the sale-deed executed in favour of Mst. Raju by fraud and entirely without the consent or knowledge of the former. Consequently the plaintiff instituted the present suit on the 14th October, 1949, in which she has prayed for declaration that she alone is the exclusive owner of the field in dispute and that the contesting defendant respondent Mst. Rajubai has no right or interest therein and she has further prayed for possession of the half portion of the land of which Mst. Raju had taken unlawful possession. The defendant Mst. Rajubai contested the suit. So far as the mortgage of 1941 and other sums alleged to have been advanced by the plaintiff to Madho deceased are concerned all that she said was that she had no knowledge. It may be pointed out, however, that the defendant in paragraph four of the written statement stated that as a matter of fact the sale of the land in dispute had been made by the heirs of the deceased Madho in favour of the plaintiff as well as the deceased Bhanwarlal, her father-in-law. She further stated that she came into possession of the land only after Bhanwarlal's death. The trial court struck the following issues :- - (1) Whether the land in dispute bearing Khasra No. 98 and measuring 43 Bighas and 5 Biswas situate in village Ganpatpura was sold by me heirs of Madho for Rs. 1158/- in favour of the plaintiff, and, therefore, she was the sole owner thereof. (2) Whether the name of Mst. Rajubai defendant had been introduced in the sale-deed for the disputed land by fraud and without the know ledge of the plaintiff. (3) Whether the land in dispute bad been purchased for consideration which proceeded entirely from the plaintiff and, therefore, Mst. Rajubai defendant had no right or interest therein. (4) What relief? (5) Whether the suit was within limitation. The trial Court dismissed the plaintiff's suit by its judgment dated the 28th February, 1952. The plaintiff went in appeal to the Civil Judge Bundi who dismissed the appeal and affirmed the judgment of the trial court. The present appeal has been filed from the aforesaid judgment and decree. Two contentions have been principally raised by learned counsel for the plaintiff in this Court. The first is that the courts below have failed to direct their attention properly to certain circumstances,antecedent to the sale which was admittedly made by the legal representatives of the deceased Madho. It was pointed out in this connection that an application had been made on behalf of Mst. Dhan Kanwar plaintiff on the 3rd November, 1943, through her counsel Mustafa Hussain P. W. 2 in which it was prayed that permission be accorded to Mst. Dhan Kanwar for having the sale made in her favour with respect to the land in dispute as she had advanced a considerable sum of money on security thereof to the original Khatedar Madho, and Madho had died and his heirs were unable to pay off the debt. This application was made to the Tehsildar and was finally disposed of by the Revenue Minister of the former State of Bundi by his order dated the 7th February, 1945, by which permission for the desired sale was accorded. It has been strongly contended that upto the last mentioned date, namely, the 7th February, 1945, there is no indication whatsoever that the name of Mst. Rajubai was also sought to be included as a vendee with respect to this land though it does appear that a subsequent application dated the 12th July, 1945, seems thereafter to have been made by Vakil Mustafa Hussain already referred to above, and this application also bears the signature of the plaintiff Mst. Dhan Kanwar wherein it was prayed that permission be also given to include Mst. Rajubai widow of Moolchand Mahajan of Bundi (daughter-in-law of Bhanwarlal) as a vendee in this sale for certain reasons which it is unnecessary to mention at this place. It is argued that as permission had already been accorded to the plaintiff to have the sale made in her favour by the order of the Revenue Minister dated the 7th February, 1945, there was no occasion for a further application to be made on behalf of Mst. Dhan Kanwar on the 12th July, 1945, and it is strongly suggested that all this was manoeuvred by Bhanwarlal who was the Mukhtar of the plaintiff and the father-in-law of the defendant Mst. Rajubai. In any case no order appears to have been passed on this application. Reliance was also placed in this connection on sec. 19 and 20 of a law which is called 'bundi Riyasat ke Kashtkaron ke Hakook ka Kanoon, 1942'. Sec. 19 in effect provides that before a Khatedar can sell or exchange or mortgage his land, it is imperative for him to obtain the sanction of the Revenue Commissioner in that connection. Sec. 29 further provides that where a Khatedar alienates his land by way of exchange, sale or mortgage without first obtaining the permission of the Revenue Commissioner as required by Sec. 19, such alienation would be entirely null and void,and the section further provides that the Registration Officer shall not register such a deed notwithstanding the provisions of the Registration Act. Reference may also be made to sec. 21 in this connection which lays down that where a person assumes possession of the land of Khatedar or any part of it in contravention of sec. 19, then such a person would be treated as a trespasser within the meaning of sec. 53 of the Kanoon Maal of the State of Bundi and would be liable to be punished under that section My attention was also invited in this connection to the circumstance that the mortgage of 1941 which is said to have been made by the deceased Madho was made in the name of the plaintiff Mst. Dhan Kanwar only, and further to a list dated the 24th August, 1944, of debts, which was filed by Vakil Mustafa Hussain showing the total advances made by Mst. Dhan Kanwar plaintiff to the original Khatedar, the entire total of these debts amounting to Rs. 1158/-, the contesting defendant led no rebuttal whatever. On the aforesaid facts and circumstances it was contended that the finding of the courts below that the plaintiff had failed to prove that she was the exclusive owner of the land in dispute or that she had failed to prove that the entire consideration for the sale-deed had proceeded from her and none whatsoever from the defendant are wrong and should not have been arrived at. I cannot help stating in this connection that the case appears to have been grossly mishandled in the trial court, and even the plaintiff was not examined with the result that both courts below have laid great stress on this particular ommission and considerable reliance seems to have been placed by them on it in coming to the conclusion to which they did. It is however, unnecessary for me in view of the conclusion at which I have arrived to give any finding on the points referred to above, and, therefore, I refrain from deciding them. This brings me to the next contention, and that is that the trial court had gone wrong is not allowing the plaintiff to produce herself in her evidence and a similar opportunity to enforce the attendance of one of her principal witnesses, Ramkaran, to court. It is necessary to mention a few fact bearing on this contention. The issues were framed by the trial court on the 7th October, 1950, and the case was posted for plaintiff's evidence for the 23rd November, 1950. As it was considered necessary to send for certain files relating to the permission for the sale of the land and the registration of the sale-deed for the land in dispute, no evidence, appears to have been recorded until the 11th May, 1951. The case was then fixed for the plaintiff's evidence for the 27th July, 1951, on which date five of her witnesses who were present were examined. It was then stated to the court that the plaintiff wanted to summon Shri Bhagwat Dutt who was Additional Revenue Commissioner in the former State of Bundi in 1944 and had something to do with the proceedings taken in connection with the permission to sell, and one other witness Ram Karan who is the son of the deceased Madho, the original Khatedar. The court ordered that these witnesses be summoned on payment of the necessary process fees. The case was then adjourned to the 4th September, 1951. Shri Bhagwat Dutt Sharma was present on that date and was examined. Summonses for Ramkaran were not issued by the office, and, therefore, the court ordered that fresh summons be issued for him without any further process-fee, and the case was adjourned to the 16th October, 1951. On the 16th October, 1951, Ramkaran was not present nor his summons had been received back. The Munsiff, therefore, ordered that fresh summons be issued for Ramkaran on payment of necessary process-fee. The case was adjourned to the 16th November, 1951. On the lats-mentioned date, Ramkaran was not present again. It appears that process-fee was deposited for Ramkaran by the plaintiff as late as the 7th November, 1951. The Munsiff observed that it was impossible to have service effected on Ramkaran between the 7th November, 1951, and the 16th November, 1951, which was the next date of hearing, and, therefore, he refused to issue the summons. A further prayer was made to him to grant an opportunity for examining the plaintiff, and it was pointed out that she could not come on that date as she was ill. The court observed that no indication had upto that date been given that plaintiff was sought to be examined, that no medical certificate in support of the plaintiff's illness has been produced. In this view of the matter, the court closed the plaintiff's evidence and fixed the case for the evidence of the defendant. Learned counsel for the plaintiff urges that the trial court had acted illegally in refusing to issue process for Ramkaran particularly as Ramkaran was a very important witness, being the son of the deceased Madho the original Khatedar and one of the vendors and that the plaintiff had been greatly prejudiced by the illegal order passed by the court. What seems to have prevailed with the Munsiff clearly was that the plaintiff had put in process-fee for the witness Ramkaran just a week before the next following date of hearing, namely, the 16th November, 1951, and that as the witness was stated to be living in Delhi at the time, it was well-high impossible for any service to be effected on him. Be that as it may, I have no hesitation in holding that learned Munsiff was not right when he declined to issue process for this witness. What the Munsiff should have done was to have immediately ordered the issue of a process and if the summonses should not have been served before the next date of hearing, then it was perfectly open to him to refuse to adjourn the case for appearance of witness Ramkaran because in that eventuality the fault would have laid entirely with the plaintiff, inasmuch as she had filed the process fee after considerable delay. It is necessary in this connection to invite the attention of the courts below to rule 1 of Order 16 C. P. C. which clearly provides that after the suit is instituted, it is open to the parties at any time on application to the court to obtain summonses to persons whose attendance is required either to give evidence or to produce documents. There is ample authority for the proposition that a party is entitled in such circumstances to obtain summonses for his witnesses as a matter of right provided of course there is a proper application for the purpose in the sense that the necessary particulars of the witnesses to be summoned are furnished to the court. It has also been held that this right is not affected by the circumstances that the party concerned makes his application at a late stage of the proceedings so that the witnesses cannot be present before the next date of hearing, and that the proper procedure for the trial court in such a case is not to refuse to issue the process; but having issued the same,it may very well refuse to adjourn the hearing for the attendance of the witnesses. But the view is firmly established that the court has no power to refuse to issue summonses. Thus it was held as early as 1894 in Bhagwan Das vs. Debi Dev (1) with reference to sec. 159 of the Code of Civil Procedure of 1877 which corresponds to 0. 16 r. 1 of the present Code that where a person making an application to a civil court for witnesses to be summoned has negligently or with intention to delay the hearing postponed the making of his application for a summons until a time when it would be impossible to obtain the attendance of witnesses at the hearing, the court might properly refuse to adjourn the hearing, but nevertheless it would be the duty of the court to order the summons asked for the issue, as the court had no direction under sec. 159 to warrant the refusal of such an application. Again it was held in Sardnrilal vs. Mohar Singh (2), that a party is entitled as of right to obtain summonses for his witnesses where an application for the purpose is made after the institution of the suit and the same is pending, and further that if the application is made at so late a stage of the proceedings that the witness cannot be present, the court may refuse to adjourn the case for their attendance but it has no power to refuse to issue summonses. The same view has been taking in Ashwini Kumar vs. Anukul Chandra (3), by a Division Bench of the Calcutta High Court in which Harris C. J. while delivering the judgment of the Bench laid down that a party was entitled as of right to a summons so long as the application was made after the institution of the suit and before it was decided, and that it did not matter that the application was made at a late stage of the proceedings, and what the court should do in such a case is to grant the application though it need not adjourn the hearing for the attendance of the witness summoned. It is unnecessary to multiply authorities and I respectfully concur in the view propounded above. I am also inclined to think that the trial court was not quite justified in refusing to give at least one more opportunity to the plaintiff to examine herself as a witness. It was stated on her behalf on the 16th November, 1951, that the plaintiff was ill and, therefore, unable to appear in court, and it was, therefore, prayed that the case adjourned to allow her to examine herself as a witness. The court declined to adjourn the case on two grounds. The first was that no intimation had previously been given to it that the plaintiff wanted to examine herself. I regret I am unable to follow the logic of this observation. There is no provision in the Code of Civil Procedure which requires the plaintiff to give any such intimation to the court before hand. As for the second reason that the plaintiff had produced no medical certificate in support of her illness, it has not been shown that Ganpatpura is a village which had a dispensary at the relevant time and that it should have been possible for any resident of the village to avail himself or herself of the services of a doctor; and if that was not the case it is futile to expect that the plaintiff was or would have been able to produce a medical certificate in support of her illness. Naturally the plaintiff was the most important witness on her side, and it cannot be forgotten that according to the practice which prevailed in Rajasthan in those days, the parties to a case, whether the plaintiff or the defendant, almost invariably produced themselves in evidence last of all.
(3.) FOR the reasons mentioned above, I have no hesitation in coming to the conclusion that the trial! court acted improperly in refusing to issue summonses for the plaintiff's witness Ramkaran on the 7th November, 1951 and also in declining to give at least one more opportunity to the plaintiff to examine herself in her evidence in the circumstances of the case, and that thereby she has been prejudiced and this case has not had a proper trial. i I may add that these contentions were raised before the learned Civil Judge in appeal and that he also fell into error in coming to the conclusion that the procedure followed by the trial court did not call for any interference, which view cannot be accepted as correct. The conclusion!, therefore, is inescapable that the case had not a fair trial and must go back, and I am free to confess that the result is unfortunate as this is a very old appeal, but it cannot be helped. In this view of the matter, it is unnecessary for me to give any findings of my own on the other contentions raised in this appeal and to which detailed reference has been made in the foregoing part of the judgement. I may make it clear that the courts below need not and should not be influenced by anything that I have stated, in arriving at their own conclusions on the merits of the case. The result is that I allow this appeal, set aside the judgments and decrees of the courts below and send the case back to the Munsiff Bundi for retrying the case and deciding it afresh in accordance with law and in the light of the observations made above. Summonses will be issued for the attendance of the plaintiff's witness Ramkaran and it will be open to the plaintiff to examine herself in evidence if she so chooses. No other witnesses need be examined on her side. After the plaintiff has finished her evidence, the defendant shall be granted an opportunity to 1ead her evidence in rebuttal. As to costs, I leave the parties to bear their own costs in this Court as the plaintiff was negligent in not depositing the process-fee for her witness Ramkaran in good time in the trial court, but other costs shall abide the result. As this is a 1949 suit and has unfortunately to be sent back for a proper trial, I direct that the Munsiff shall give it high priority and dispose of it with all reasonable despatch and without any avoidable delay. . ;