Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the petitioner.
(2.) Appellants lost in Title (Partition) Suit No. 44 of 2002 vide judgment and decree dated 25.7.2012 rendered by the Learned Civil Judge, Junior Division-I, Jamshedpur. The suit was brought by the mother of the appellants, Shanti Devi for partition of the house and premises situate in House No. 687, B/ Block, Sonari, Jamshedpur stated to be under allotment by M/s TISCO Ltd. in the name of Ful Kumari, the deceased mother of Shanti Devi. The original allotment letter of the said house was neither available in the possession of the Plaintiff, Shanti Devi nor were adduced as evidence before the learned Trial Court. After the death of the said Shanti Devi, the present appellants were substituted. By way of an application under Order XLI, Rule 27 of Civil Procedure Code a direction was sought upon the Land Department of Tata Steel, Jamshedpur to produce the allotment letter before the Appellate Court. This was resisted by the Defendants who set up a case that suit holding was purchased by their mother in the year 1949 from Laxmi Devi which was later on mutated in her name. In the absence of any documentary proof of allotment in the name of Phul Kumari, the mother of Plaintiff, Shanti Devi and two Defendants, it could not be proved that Plaintiff has any right, title over holding, during the trial. The suit was accordingly dismissed. Therefore, prayer for issuance of such direction upon M/s. Tata Steel, Jamshedpur was unwarranted in view of the limited grounds laid down under Order XLI, Rule 27 of the C.P.C to allow evidence at the appellate stage. Learned Appellate Court considered the submission of the parties, provisions of law on that count and came to the conclusion that no such application was ever made to trial court for procuring and admitting said documentary evidence passed in Title Appeal No. 88 of 2012 despite ample opportunity during course of trial vide impugned order dated 10.5.2016. It was also observed that though prayer was made for direction to land Department of M/s. Tata Steel to produce the said allotment letter, but no copy of any such document was produced before the Appellate Court in support of the claim. The Appellate Court was of the view that additional evidence could be allowed if despite best effort such evidence could not be adduced in the first instance. This does not authorize the party to fill up any lacuna. Therefore, petition for adducing additional evidence was rejected.
(3.) Learned counsel for the petitioners has strenuously tried to show that allotment letter has vital significance on the outcome of the partition suit as its presence would determine that Plaintiff was entitled for partition of the suit property, originally allotted in the name of Phul Kumari, mother of the Plaintiff Shanti Devi from whom the substituted Plaintiffs and Defendants are prosecuting the matter.;