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Biswa Ranjan Banerjee & Others v/s Krishna Ghosh & Others

    CRP (I/O) 23 of 2015 With CRP (I/O) 121 of 2015

    Decided On, 13 July 2017

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

    For the Petitioners: T.J. Mahanta, Senior Advocate. S. Sahu, T.C. Khetri, A. Das, P. Chakraboty, K. Khan, B. Choudhury, P. Bhattacharya, J. Das. Advocates. For the Respondents: A. Sattar, R. Hussain, S. Choudhury, H. Baruah, Z. Mukit, Advocates.



Judgment Text

Cav Judgment & Order:

1. Heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. S. Sahu, learned counsel for the petitioner and also heard Mr. A. Sattar, the learned counsel appearing for the respondent.

2. The petitioners are the plaintiffs in T.S. No. 608/2006. The suit, inter-alia, was for declaring the right, title and interest of the plaintiffs over the suit land, for delivery of khas possession of the suit land, if necessary, by demolition the construction standing thereon, for declaring the Sale Deed No. 3371/1983 dated 11.05.1983 and Sale Deed No. 7447/1983 dated 30.09.1983 as null and void and to cancel the same, for cancellation of mutation of the name of the respondents/ defendants on the suit land and municipal holding, for permanent injunction, precept etc. Initially the suit was being tried by the court of Civil Judge (Junior Division) No. 1 and numbered as T.S. No. 416/2005. Later on, due to enlargement of pecuniary jurisdiction, the suit was transferred for trial before the learned Court of Munsiff No. 2, Guwahati. The respondents contested the suit by filing their written statement cum counter-claim for declaring the right, title and interest of the defendant No. 1 over the land described in the Schedule of Deed No. 3371/1983 dated 11.05.1983. The petitioners had filed their written statement in respect of the said counter claim.

3. In course of trial, the petitioners filed a petition under the provisions of Order XVI Rule 1(3) of the Civil Procedure Code (CPC for short) to examine two witnesses whose names were not furnished before the court earlier. The said petition was numbered as petition No. 3616/14. The petitioners filed another petition, being petition No. 1475/15 under the provisions of Order XVIII Rule 17 CPC to call the Sub- Registrar, Guwahati to depose before the Hon'ble court by producing the volume books and related index register, thumb impression register and all of the related documents, if any, in connection with Sale Deed No. 7447/1983 dated 30.09.1983 and Sa

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e Deed No. 3371/1983 dated 11.05.1983. Both the said petitions were rejected by the learned trial court.4. The petitioners have filed CRP (I/O) No. 23/2015 under Article 227 of the Constitution of India to challenge the order dated 05.12.2014 passed by the learned court of Munsiff No. 2, Kamrup (M), Guwahati in, by which the petition No. 3616/14 under Order XVI Rule 1 (3) CPC was rejected.5. The petitioners have also filed CRP (I/O) No. 121/2015 under Article 227 of the Constitution of India to challenge the order dated 02.04.2015 passed by the learned trial court, thereby allowing secondary evidence to be led by the respondents for proving Sale Deed No. 3371 dated 11.05.1983 and Sale Deed No. 7447/83 dated 30.09.1983 and also in challenge is the order dated 18.09.2015, thereby rejecting petition No. 1475/15 of the petitioners.6. Both the said revision applications have been heard together. Owing to the nature of issue raised, it has been deemed fit to dispose of the said two revisions at the ‘admission stage’.7. The learned Senior Counsel for the petitioners has submitted that in course of hearing, the petitioners had filed Evidence-on- affidavit of six witnesses including the plaintiff No. 3. At the relevant point when petition No. 3616/14 under Order XVI Rule 1(3) read with section 151 CPC was filed, the defendants had cross-examined two witnesses including the plaintiff No. 3. In the said petition it was stated that the petitioners had failed to mention the names of two witnesses, namely, (i) Sri Umakant Jha and (ii) Sri Gopal Jha, due to the lack of knowledge of their address at the relevant time. According to the petitioners, those two persons were vital witnesses because at the material time they were residing in a room standing over the suit land. But, they had left after the defendants had encroached over the suit land on 25.12.2004. The petitioners had also prayed to allow them to examine the plaintiff No. 12 along with those above named two witnesses.8. The learned counsel for the petitioners has submitted that while rejecting the said petition No. 3616/14 by order dated 05.12.2014, the learned trial court, without appreciating the facts under which the petition was filed, had wrongly rejected the said petition by mechanically holding that the explanation given by the petitioners for non-furnishing of the names of this unlisted witness in the list of witnesses was not satisfactory and the application was filed at a belated stage and if the petitioner was allowed, the defendants would suffer prejudice as by further evidence, the lacuna may be filled up.9. The learned counsel also submitted that while the petition No. 3616/14 was dismissed, amongst others, on the ground of it being belated. But at the stage of evidence of the respondents/defendants side when the Defendant No. 3 filed his evidence on affidavit as DW-1 and exhibited some documents including certified copy of Sale Deed No. 3371/1983 dated 11.05.1983 (Ext.A) and Sale Deed No. 7447/1983 dated 30.09.1983 (Ext. B), the learned trial court had entertained and allowed petition No. 279/15, which was a petition under Section 65(c) of the Evidence Act, 1872 read with Section 151 CPC, and allowed the respondents to lead secondary evidence in respect of the above referred two sale deeds and further, the respondents were allowed to summon the Senior Sub-Registrar, Guwahati for bringing the Volume Book No. 27/1955 in respect of the lease deed dated 15.07.1955.10. It is submitted that by petition No. 279/15, not only the respondents had prayed for adducing secondary evidence of the two sale deeds and to summon the Senior Sub- Registrar to produce and give evidence to prove the Volume Book No. 27/1955, in which the Lease Deed dated 15.07.1955 was entered. But, it contained a further prayer to call the Senior Registrar, Kamrup (M), Guwahati to produce the Volume Book No. 112/83 and 53/83, in which the above mentioned two sale deeds were recorded and to give evidence in respect of the same. It is submitted that the back-ground of not filing any objection was that when the petitioners had applied for certified copy of the said sale deeds, they were not furnished the same and in an application under the Right to Information Act, the petitioners were informed that the relevant volume-books could not be found. Under the circumstances, no written objection was filed by the petitioners against the said petition No. 279/15. However, by order dated 02.04.2015, the learned trial court by recording their no objection, allowed the respondents to adduce secondary evidence of the two sale deeds, without directing the Senior Sub- Registrar to produce and prove the volume-books, Index Register and Thumb Impression Register, which has caused irreparable prejudice to the petitioners.11. The learned Senior Counsel for the petitioners has submitted that thereafter, on 05.06.2015, the petitioners had filed two petitions. The petition No. 1475/2015 dated 05.06.2015 was filed under the provisions of Order XVIII Rule 17 read with Section 151 CPC to call for the original volume book, index register and thumb impression register and all other related documents in connection with Sale Deed No. 3371/1983 dated 11.05.1983 and Sale Deed No. 7447/1983 dated 30.09.1983. Petition No. 1476/2015 was filed for deferring the cross-examination of DW-1 till the Senior Sub-Registrar was first examined. It is submitted that the learned Trial Court had wrongly rejected the petition No. 1475/2015 by order dated 18.09.2015, on the ground that when the defendant No. 1 had prayed for adduce secondary evidence by proving the certified copy of the said two sale deeds, the petitioners had not raised any objection and accordingly, the certified copies were allowed to be proved. It was also submitted that the learned trial court was wrong to reject the said petition on the ground that the evidence of PWs had been closed long back and the case was at the stage of cross-examination of DWs. Moreover, it was also submitted that the reference of the previous revision i.e. CRP (I/O) 23/2015, showed that the petition was rejected for extraneous considerations.12. The learned senior counsel for the petitioners has submitted that any stage of the proceedings if the grounds were found to be sufficient the court has the power to allow an application under Order XVI Rule 1(3) CPC to allow the petitioners to examine additional witnesses. It is submitted that the failure to name them list of witness was not vitiated by negligence or laches, but those two persons who were residing in the suit premises till 25.05.2004 had left the place when the suit land was encroached by the respondent/defendants and due to lack of knowledge of their address their name could not be included. It is further submitted that the plaintiff No. 12 who was also present at that time of encroachment has vital knowledge of the facts and circumstances of the case and therefore they are permitted to examine, it would enable the court to arrive at a just and proper decision. Hence, it was prayed that the CRP (I/O) 23/2015 allowed.13. In connection with the CRP (I/O) 121/2015, it is submitted by the learned Senior Counsel for the petitioners that in petition No. 279/2015, which was an application for leave for adducing secondary evidence and for calling the Senior Sub Registrar, Guwahati to produce the volume book No. 112/83 and 53/83 was moved, at that time the petitioners had filed an application under Right to Information Act (RTI for short) as well as an application for certified copy of those two sale deeds, but copies were refused to the petitioners on the ground that the relevant volume book was not available. The learned counsel for the petitioner had handed over a copy of the RTI application as well as the reply for the perusal of this court, but as the documents were not filed by way of affidavit, this court was not inclined to take notice of document which had not been brought on record. It was submitted that as there was a prayer in petition No. 279/2015 to call for the senior Sub-Registrar to produce volume book no. 112/83 and 53/83, under the circumstances and only on the background of the fact that they were not being issued certified copy, the petitioners had deem fit not to file their objection and had readily agreed to the prayer. But, the learned trial court without calling for the original volume book as prayed for, permitted only the secondary evidence of the two sale deeds, for which the petitioners were compelled to file the second application to call for the Senior sub-Registrar, Guwahati to produce the said volume books in respect of the two sale deeds.14. The learned senior counsel for the petitioner submits that they were three separate prayer in this application and therefore, the no objection of the petitioner in allowing the prayer did not mean that the court could have waived the requirement of proving the execution and registration of the two sale deeds by permitted only the secondary evidence to be led in respect of the two sale deeds and, as such, the impugned order was vitiated by material irregularity.15. Per-contra, the learned counsel for the respondents has submitted that once the petitioners had given the consent to the prayers made by the respondent, it was not open for the petitioner to withdraw or explain their no objection in this subsequent proceeding on the ground that the court should have allowed all three prayers and not one of such prayers. It is submitted that if the objection was qualified, the same should have been explicitly and adequately explained at the time of making oral submissions about the no objection from the petitioners.16. It is submitted by the learned counsel for the respondents/ defendants that in their affidavit-in- opposition filed in CRP(I/O) No. 23/2015, it was stated that they had misplaced original sale deed no. 3371/83 and 7447/83 and the police was informed about such loss and the public was also informed about the same through newspaper publication to obtain information about the sale deed on reward. It is submitted that only after the newspaper publication had been published, the petitioners had filed a false suit, being T.S. No. 416/2005. It is submitted that the respondent No. 1 has purchased land measuring 4 kathas from the petitioners and their predecessor- in- interest vide Sale Deed No. 3371/83 and they had also purchased the holding and superstructure standing thereon from its owner, namely, one Ajit Ranjan Sen vide Sale Deed No. 7447/83. It is submitted that after considering the no objection to the petition made on behalf of the petitioners, the learned court below had correctly passed the impugned orders and by supporting the order impugning both the revisions, the learned counsel for the respondents had prayed for dismissal of CRP (I/O) 121/2015.17. It is further submitted that these were not the cases where the petitioners have been taken by surprise. It is submitted that it was the pleaded case of the respondents that the original of the two sale deed where lost and that the said lost was duly informed by newspaper and such loss and the advantage which the petitioner were trying to take because of the loss of original sale deeds was duly mentioned in the written statement- cum- counter-claim. As regards the prayer made in CRP(I/O) 23/2015, the learned counsel for the petitioners submits that the stage of filing of evidence on affidavit by PWs was completed on 27.10.2010 and by the time the petition under Order XVI Rule 1(3) read with Section 151 CPC was filed, by that time two PWs had already been cross examined. It is further submitted that at the initial stage the plaintiff No. 12, who claimed that he was present when the encroachment took place, may did not come forwarded to include his name in the list of witnesses, by further referring to the statements made in said petition and the plaint it is submitted that the plaintiff No. 1, since deceased was a senior counsel practicing many in the civil side in this court. It is submitted that it is unbelievable that one senior counsel give his evidence vital would have been left out. Moreover, after that about five other witnesses including plaintiff No. 3 was examined and cross examined and the evidence was closed, and at this stage, even all the DWs had filed their evidence on affidavit. Hence, it is submitted that if at this stage the evidence of plaintiff side is reopened by allowing examination of three more witnesses including plaintiff No. 12, all the lacuna in the plaintiffs’ evidence would be filled up. By referring to the affidavit in opposition filed by the, the learned counsel for the petitioner had prayed for dismissal of both the revisions.18. On the perusal of the materials on record, it appears that as per the order dated 05.12.2014, by which the petition No. 3616/14 under the provisions of Order XVI Rule 1(3) read with Section 151 CPC was rejected, cross-examination of five out of six PWs had already been completed. The said petition was filed when cross-examination of 2 PWs was fixed. The said petition No. 3616/14 does not contain any explanation why the name of plaintiff No. 12 was not included in the list of witnesses filed before the learned Trial court. Moreover, it is not in dispute that by now all the DWs have already filed their evidence on affidavit and, as such, the evidence of the respondent’s side is now fully disclosed. This Court is also inclined to take notice of the fact that the plaintiff No. 1 (since deceased) was indeed a Senior Advocate of this court. Moreover, the provisions of Order XVIII Rule 3A CPC requires a party to appear before other witness, but the petition No. 3616/14 also does not contain any prayer for leave of the learned trial court to allow the plaintiff No.12 to be examined at a later stage. Hence, this court has to agree to the argument advanced by the learned counsel for the respondent that if at this stage the evidence of plaintiff side is reopened by allowing examination of three more witnesses including plaintiff No. 12, all the lacuna in the plaintiffs’ evidence, if there be any, could be surely filled up. Hence, this court does not find any infirmity with the order dated the order dated 05.12.2014 passed by the learned court of Munsiff No. 2, Kamrup (M), Guwahati in, by which the petition No. 3616/14 under Order XVI Rule 1 (3) CPC was rejected. The same is upheld and resultantly, the CRP (I/O) No. 23/2015 is dismissed.19. As regards the challenge to (i) the order dated 02.04.2015 allowing petition No. 279/15, and (ii) order dated 18.09.2015, rejecting petition No. 1475/15, which is the subject matter in CRP(I/O) No. 121/2015, it is seen that the pleaded case of the respondent was that the two sale deeds in reference were lost and the said loss was also advertized in newspaper. Hence, when the Defendant No. 3 filed his evidence on affidavit as DW-1, they had exhibited certified copy of Sale Deed No. 3371/1983 dated 11.05.1983 (Ext.A) and Sale Deed No. 7447/1983 dated 30.09.1983 (Ext. B). The learned trial court had entertained and allowed petition No. 279/15, allowing secondary evidence of the said sale deeds to be taken.20. On the perusal of the said petition No. 279/15, leaves no room for doubt that the said petition not only contained the prayed for allowing secondary evidence of the two sale deeds, but it also contained prayer to summon the Senior Sub- Registrar to produce and give evidence to prove the following – (i) Volume Book No. 27/1955, in which the Lease Deed dated 15.07.1955 was entered, (ii) Volume Book No. 53/83 containing entry of Sale Deed No. 3371/1983 dated 11.05.1983, and (iii) Volume Book No. 112/83 containing entry of Sale Deed No. 7447/1983 dated 30.09.1983.21. Noting that petition No. 279/15 contained three distinct prayers, and the fact that the petitioners had given the consent to the prayers made by the respondent, it was incumbent on the part of the petitioners to explain the extent of their no objection. Be that as it may, without going into the reasons under what circumstances the ‘consent of no-objection’ was given by the petitioners, in the present case in hand, the execution of the two sale deeds are highly disputed. Under the circumstances, as the learned trial Court has already ordered summoning of the Senior Sub- Registrar, Kamrup (Metropolitan), Guwahati to produce and give evidence in respect of Volume Book No. 27/55, in the opinion of this Court, it would meet the ends of justice to further direct the Senior Sub- Registrar to produce and prove the volume-books, Index Register and Thumb Impression Register, which would go into the root of the matter and would enable the court to arrive at a just and proper decision. The allowing of secondary evidence of the said two sale deeds, without permitting the petitioners to make an attempt to prove their plea is found to have caused irreparable prejudice to the petitioners. It is found that the learned trial court failed to consider the aforesaid aspect of the matter.22. Hence, in view of the discussion above, this Court is inclined to partly allow the CRP (I/O) No. 121/2015, by setting aside only the order dated 18.09.2015, by which petition No. 1475/15 was rejected without interfering with the order dated 02.04.2015, allowing secondary evidence to be led by the respondents for proving Sale Deed No. 3371 dated 11.05.1983 and Sale Deed No. 7447/83 dated 30.09.1983. The learned trial court may pass consequential orders necessary for summoning the Senior Sub- Registrar, Kamrup (Metropolitan), Guwahati, or his delegate to produce and give evidence in respect of (i) Volume Book No. 53/83 containing entry of Sale Deed No. 3371/1983 dated 11.05.1983; (ii) Volume Book No. 112/83 containing entry of Sale Deed No. 7447/1983 dated 30.09.1983; (iii) Index Register [of both (i) and (ii) above]; and (iv) Thumb Impression Register [of both (i) and (ii) above]. For enabling the above, the learned trial court shall also permit the petitioners/ plaintiffs to examine the Sub- Registrar, Kamrup (Metropolitan), Guwahati, or his delegate so as to prove the above mentioned record.23. As a result, CRP (I/O) No. 23 of 2015 is dismissed and CRP (I/O) No. 121/2015 is partly allowed to the extent as indicated above.24. The parties are left to bear their own cost.
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