- (1.) PRAYER in this writ application is for setting aside the order dated 20.02.2008 (Annexure -6), passed by the 6th Additional District Judge, Dhanbad in Title Appeal No. 10 of 2006, whereby the petitioners prayer for allowing him to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, has been rejected.
(2.) THE petitioner was the defendant No. 2 in the Title (Partition) Suit No. 28 of 1996 filed by the Respondent No. 1/plaintiff seeking relief for a decree for delivery of the partition and separate possession of his two -thirds share in the land and the property mentioned in the schedule of plaint. The plaintiff/Respondent No. 1 had claimed that his father, late Jumai Mian purchased 3 Kathas of land out of 53 Bigha within Thana No. 121, Khata No. 29, Khewat No. 4, Plot No. 84/85 by virtue of a Hukumnama on payment of Salamee of Rs. 40/ -from the erstwhile landlord, namely, Dijapada Chakravarty and Avay Pado Chakravarty in the year 1947. After the demise of his father on 16.12.1971, the plaintiff became the sole owner of the property. Some time in the year 1994, the defendant no. 2, who is admittedly the grand -son of late Jumai Mian had occupied one room within the suit property allowed by the plaintiff on temporary basis. Taking advantage of his entry into one room, the defendant no. 2, namely, the present petitioner occupied all the other rooms as well on 07.03.1995. When the plaintiff demanded that he should vacate the premises, the defendant no. 2, namely the present petitioner refused to vacate and on the other hand demanded partition of the property. The petitioner -defendant no. 2 had contested the suit mainly on the ground that the land described in the schedule of the plaint lies in Plot No. 86/93 and not in the Plot Nos. 84/85. The said land and the house premises as described in the Schedule to the plaint belongs actually to the plaintiff/defendant no. 1 and is situated just adjacent east of the land purchased by his ancestor Abdul Subhan. The plaintiff is not the son of late Jumai Mian and, as such, the appellant being the grand -son of late Jumai Mian, the entire property had devolved upon the appellant as per the Sunni Mohammadan Law. In support of his contention that the land described in the Schedule of the plaint did not correspond to the actual identity of the lands as entered in the Revenue records, the appellant had referred to the Khatiyan claiming that in Khewat No. 4, there is no Khata bearing Khata No. 29 and further on the ground that the property described by the plaintiff in the Schedule to the plaint does not pertain to the Plot No. 84/85. Disputing the identity of the property mentioned in the schedule of the plaint, the petitioner had pointed out before the court below that whereas the plaintiffs claim is that the schedule property is situated in Khata No. 29, Khewat No. 24 but the record of rights, namely the Khatiyan shows that there is no Khata No. 29 in Khewat No. 24, rather it is in Khewat No. 8. The Title Partition Suit was decreed in favour of the plaintiff/defendant No. 1 by the trial court vide its judgment and preliminary decree dated 07.12.2005, which was passed on contest against the present petitioner. Against the judgment and decree, the petitioner preferred Title Appeal No. 10 of 2006, which is presently pending in the Court of the 6th Additional District Judge. Heard the learned counsel for the petitioner, learned counsel for the Respondent -State as also the learned counsel for the Respondent no. 1.
(3.) THE main ground advanced by the petitioner/appellant in the aforesaid Title Appeal was that the learned trial court did not consider the fact that the very identity of the property mentioned in the Schedule of the plaint was in dispute and that the description of the property as given by the plaintiff does not correspond with the entries in the Khatiyan. The grievance of the appellant, as raised in his appeal was that despite the fact that the copy of the Khatiyan was filed by the plaintiff but the learned trial court did not venture to adduce the same in evidence in the suit nor did the trial court accept the same as part of the evidence. According to the petitioner, the Khatiyan pertaining to Khewat No. 4, has been recorded in the name of one Kokil Bouri and the Khata No. 29 does not fall within the Khewat No. 4. On the other hand, the lands in Khewat No. 8 under Khata No. 29 stands recorded jointly in the name of Bhushan Dhobi, Panu Dhobi and others having equal shares. It is further contended that though the petitioner had obtained the certified copy of the Khatiyan of Khewat No. 8 but the learned trial court did not admit the same in evidence though the certified copy of the Khatiyan being a public document it ought to have been marked as Exhibit in evidence. Demanding that the aforesaid certified copy of the Khatiyan pertaining to Khewat No. 8, is relevant and important document, which would be necessary for proper adjudication of the dispute, the petitioner had prayed before the court below to admit the same in evidence.;