M.Y.EQBAL, J. - (1.) THIS application under Article 227 of Constitution of India is directed against the order dated 4.8.2006 passed by the Additional District Judge, Dhanbad in Misc. Appeal No. 53 of 2004 whereby he has rejected the application filed by the petitioner -appellant under Order XLI, Rule 27 CPC and refused to allow the petitioner to adduce certified copy of the pleading of Title Suit No. 17 of 1988 by way of additional evidence.
(2.) THE facts of the case lie in a narrow compass: The respondent -Kalicharan Saw filed Eviction Suit being Eviction Suit No. 17 of 1988 against one Narayan Tiwari for a decree of eviction alleging therein that the suit premises being Plot No. 367 Khata No. 217 area 7 decimals was purchased by him and was let out to Shri Narayan Tiwari. The respondent sought eviction on the ground of personal necessity. The suit was eventually decreed by Munsif, Dhanbad in terms of the judgment and decree dated 5.2.1992. However, it was held in the said judgment that since tenant Shri Narayan Tiwari has already vacated the premises, there is no question of giving direction for delivery of vacant possession. Accordingly, no decree of delivery of possession was passed. Against the said judgment, the plaintiff -respondent filed Title Appeal No. 5 of 1992 which was allowed by the 5th Additional District Judge, Dhanbad holding that tenant Narayan Tiwari should have been directed to give vacant possession of the premises to the plaintiff -respondent. The plaintiff -respondent thereafter filed Execution Case being Execution Case No. 6 of 1996 for execution of the decree of eviction. The petitioner, being not a party to the Eviction Suit, filed objection under Order XXI, Rules 97, 98, 99 and 101 of the CPC which was registered as Misc. Case No. 2 of 2000 on the ground, inter alia, that the suit premises is the joint family property and during pendency of the eviction suit, the suit premises was handed over to him by Narayan Tiwari. The Executing Court, after hearing the parties, dismissed the aforementioned -Misc. Case No. 2 of 2000 and, against the said order, the petitioner preferred Misc. Appeal before the District Judge, Dhanbad being M.A. No. 53 of 2004. The petitioner 'scase, inter alia, was that the plaintiff -respondent, who is his own brother, had filed Partition Suit No. 116 of 1994 impleading the petitioner and his father seeking a decree for partition in respect of 1/9th share in the entire joint family property. But in the said Partition Suit, the property, which was the subject matter of the eviction suit, was not included as not joint family property. The petitioner appeared and filed written statement in the said Partition Suit stating that there are other properties including the property of Eviction Suit and also the other joint family property which should have been included in the plaint. The respondent, however, after filing of the aforesaid Partition Suit No. 116 of 1994, did not take any step as a result of which, the suit was dismissed on 17.6.2002. The petitioner, therefore, sought to bring the written statement of Partition Suit No. 116 of 1994 by way of additional evidence in the Misc. Appeal No. 53 of 2004 by filing application under Order XLI, Rule 27 CPC. The said application was rejected by the appellate Court by passing the impugned order which is the subject matter of this application. I have heard Mr. Ananda Sen, learned Counsel appearing for the petitioner and Mr. V. Shivnath, learned Counsel appearing for the respondent and also perused the impugned order passed by the Court below.
(3.) FROM perusal of the order, it transpires that the Court below rejected the application mainly on the ground that the decreetal property was not included in the Partition Suit and hence the documents sought to be brought on record are not required for adjudication in the appeal.;