- (1.) AN interesting question which falls for consideration in the instant case is as to whether report of delivery of possession (Dakhaldahani) by the Circle Inspector of Executive Court is a public document.
(2.) THE facts of the case lie in a narrow compass : in the year 1990, father of the present res-pondents, filed Title Suit No. 01 of 1990 in the Court of sub Judge, Simdega against father of the petitioners, namely Masih Das munda. Petitioners' father contested the suit by filing written statement stating inter alia that in 1977-78, petitioners' father filed restoration case under Section 71-A of the chotanagpur Tenancy Act being S. A. R. Case No. 47 of 1977-78 for restoration of land. The said restoration case was decided in favour of the petitioners' father by order dated 3-3-1978 by the Special Officer, scheduled Area Regulation. Respondents did not prefer any appeal or revision against the said order which attained its finality. Subsequent thereto, the order was passed by the Special Officer for delivery of possession of the land to the petitioners. Pursuant to that order, delivery of possession of the suit land was delivered to the petitioners' father and a report of delivery of possession was submitted in the said restoration case on 19-12-1982. Petitioners filed certified copy of said Dakhaldahani report in the aforementioned Title Suit No. 01 of 1990 and the same was marked exhibit. Since no objection was raised by the plaintiffs-respondents with regard to the admissibility of the document, the aforementioned suit filed by the plaintiffs-respondents was eventually dismissed vide judgment dated 26-8-1998 by the subjudge-I, Simdega. Aggrieved by the said judgment and decree, the plaintiffs-respondents herein filed Title Appeal No. 02 of 1999. In the said appeal at the argument stage, the plaintiffs-appellants, who are respondents herein, filed an application under Order XIII, Rule 4 read with Section 151 of the Code of Civil Procedure stating inter alia that certified copy of the report of delivery of possession by the Executive Court which was exhibited from the side of the defendants-petitioners, is not a public document and cannot be admitted into evidence. It was further contended that the said document has been wrongly marked as exhibit. The said application was opposed by the petitioners stating inter alia that the said document is a public document and it was marked exhibit without objection. The Court of Appeal below, after hearing the parties, passed the impugned order and held that the said document (Ext. C) has already come on record and the judgment is based on the same when the said document could not have been marked exhibit. Accordingly, the petitioner-respondents were given opportunity to adduce evidence for the purpose of proving the said Dakhaldahani report. The operative portion of the order reads as under :- "from perusal of the order dated 20-7-98 when the delivery of possession was marked Ext. C it transpires that the Court had observed that the learned counsel for the plaintiffs submitted that if the same is a public document it can be marked exhibit. And accordingly it was marked Ext. C. Thus it is clear that the appellants Advocate at the time did not apply his mind and did not submit before the Court as at present he had been submitting that it is not a public document. I find that the Ext. C has already come on the record and the judgment is based on the same and when the said document could not have been marked Ext. C and the plaintiffs' Advocate did not dispute the matter seriously and he took it lightly and the document was marked Ext. C. It is ordered as follows :-Under the circumstances I think it fit for the ends of justice to give opportunity to the respondents to get it proved. Accordingly if the Respondents think it fit he may adduce evidence to get delivery of possession proved by adducing evidence. Put up on 7-8-06 for additional evidence from the Respondents. "
(3.) I have heard the learned counsels appearing for the parties.;