- (1.) THE present writ petition has been preferred under Article 227 of the Constitution of India, whereby an order passed by the District Judge, Giridih in Title Appeal No. 2 of 2005 dated 13th September, 2007 upon application preferred by the present petitioner under Order XLI Rule 27 of Code of Civil Procedure for adducing additional evidence at appellate stage, this application has been dismissed by the lower appellate court and therefore, original appellant -plaintiff has preferred this writ petition.
(2.) HAVING heard learned counsel for the petitioner and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly on the following facts and reasons: '' (i) It appears from the facts of the case that the present petitioner is the original plaintiff, who has instituted Title Suit No. 91 of 1992 before the trial court for declaration of title upon plot no. 263. (ii) It also appears from the facts of the case that after taking evidence and after hearing the original plaintiff and the defendants, the title suit was dismissed by the trial court. (iii) It also appears that thereafter a Title Appeal No. 2 of 2005 was preferred by the present petitioner (original plaintiff -appellant) before the District Court, Giridih. During pendency of the title suit, an application was preferred by the present petitioner (original plaintiff -appellant) under Order XLI Rule 27 of Code of Civil Procedure for adducing evidence before the appellate court. It is submitted by the counsel for the petitioner that petitioner is claiming right, title and interest upon property bearing plot no. 263 and on the eastern side of this property, there is a property bearing plot no. 271 and in the three sale deeds of the property of the eastern side, they have narrated the present petitioner as an owner and possessor of the property in their sale deeds and therefore, these documents ought to have been considered by the lower appellate court. This contention is not accepted by this Court for the reasons that the petitioner is an original plaintiff and is claiming ownership upon plot no. 263. The whole burden is on the plaintiff to prove the facts which are alleged positively in the plaint. The title suit filed by the plaintiff has been dismissed in appellate court. Plaintiff is relying upon documents of the neighbours, who are situated on the eastern side of plot no. 263 and eastern side property is having plot no. 271 etc. Purchasers of the neighbouring property are narrating the present petitioner as an owner of plot no. 263. Hardly, this document is necessary for the lower appellate court to arrive at correct decision upon a dispute between the original plaintiff and original defendant. Neighbour may narrate anything, in their sale deeds, but, it is plaintiff, who has to discharge the burden of proof. Plaintiff has already laid an evidence before the trial court and therefore, the lower appellate court has rightly observed while passing the impugned order that these types of sale deeds of the neighbouring property are not helpful in deciding the disputes between the original plaintiff and original defendant. I am in full agreement with reasons given by the District Court in the impugned order. No error has been committed by the lower appellate court in dismissing an application preferred by the present petitioner under Order XLI Rule 27 of Code of Civil Procedure in Title Appeal No. 2 of 2005, much less, there is an error apparent on the face of the record. As a cumulative effect of the aforesaid facts and reasons, there is no substance in this writ petition. Hence, this writ petition is hereby dismissed. The trial court shall decide Title Suit No. 91 of 1992 on its own merit, without being influenced by the order passed by the lower appellate court as well as the order passed by this Court, below an application preferred under Order XLI Rule 27 of the Code of Civil Procedure.;