Dismissed

Chotu Devi Yadab and 2 Ors. v. Jamuna Prasad Koiri

Gauhati HC13 Jul 2018CRP/213/2017

Case brief

AI extract

What is this about?

This revision petition challenged the First Appellate Court's rejection of an application to adduce additional evidence under Order XLI Rule 27 CPC. The High Court dismissed the revision, holding that the sought electricity bills were already on record and no case for further evidence was established.

What did the court decide?

Revision dismissed; parties left to bear own cost; stay order vacated.

Chotu Devi Yadab and 2 Ors. Vs Jamuna Prasad Koiri — Property and Title | Gauhati HC (2018)

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Page No.# 1/4

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GAHC010029962017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 213/2017

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1:CHOTU DEVI YADAB and 2 ORS. W/O- LATE JADUPATI YADAB

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2: ON THE DEATH OF JADUPATI YADAB HIS LEGAL HEIRS 2I SHRI RAJESH KUMAR YADAB 2II MONOJ YADAB ALL ARE R/O- UDAIPUR CHOWKIDINGHEE P.O- DIBRUGARH P.S- DIBRUGARH DIST- DIBRUGARH ASSA

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VERSUS

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1:JAMUNA PRASAD KOIRI

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S/O- LATE RAM JANAM KOIRI, R/O- CHIRING CHAPORI, P.O- DIBRUGARH, P.S- DIBRUGARH, DIST- DIBRUGARH, ASSAM, PIN- 786003

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Advocate for the Petitioner : MR.B ULLAH

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Advocate for the Respondent : MR.A S DHILLON

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 13-07-2018

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Heard Mr. B. Ullah, learned counsel for the petitioners as well as Mr. S. P. Choudhury, learned counsel for the respondent.

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By this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 03.06.2017, passed by the learned Civil Judge, Dibrugarh in T.A. No. 16/2004, thereby rejecting the prayer made by the petitioners/appellants on an application made under Order XLI Rule 27 CPC for adducing additional evidence in appeal. The learned counsel for the petitioners by referring to the order dated 23.06.2015 passed by this Court in RSA No. 32/2007 has projected that this Court while remanding the matter back to the learned first appellate Court for a fresh decision, had also permitted the learned first appellate Court to decide the matter afresh on merit by recording the findings on each and every issues, based on materials on record. However, it was also provided that subject to the conditions laid down under order XLI Rule 27 CPC, the first appellate Court, being the final Court of fact, would have the power to adduce additional evidence, if the same is justified in the facts and the circumstances of the case.

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It is submitted that in view of the liberty so granted by this Court in RSA. No. 32/2007, the petitioners had filed an application under Order VIII Rule 1A(3) CPC read with Order XLI Rule 27 CPC for adducing additional evidence and the same was rejected by the impugned order. The learned counsel for the petitioners by further referring to the evidence on affidavits of the Defendant No. 2(a), namely, Rajesh Kumar Jadav, has projected that in paragraph 5 thereof, stand was taken that the family of the petitioners were residing in the suit land since 1942 and the re-assessment of the holding was done by the General Assessment of the Municipality on 16.08.1980, in respect of Holding No. 464 of Ward No. 6 of Dibrugarh Municipality and it is submitted that these documents are required to be proved for establishing the continuous possession of the petitioners over the suit land, which was open, hostile and adverse to the interest of the land owners/plaintiff. It is further submitted that if

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Page No.# 3/4

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relevant additional evidence is not permitted, the right of the petitioners to prove their case, would be lost.

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The learned counsel for the respondent has made his submissions, and opposed the prayer made by the learned counsel for the petitioners.

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On perusal of the petition filed under Order XLI Rule 27 CPC, it appears that the stand of the petitioners in paragraph 3 of the said petition is that “the evidence of DW-4 is filed today along with documents pertaining to electricity payments which could not be filed earlier as the present defendant misplaced the same at the time of filing the written statement by his mother and father”.

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On perusal of the evidence on affidavit filed by the defendant No. 2(a) Shri Rajesh Kumar Jadav, it appears that in sub para (1) of paragraph 5, it is specifically mentioned that the exhibits were the electricity bills and receipts and copy of jamabandi respectively. Therefore, it is apparent that in the application under Order XLI Rule 27 CPC, there is no averment that the petitioners are seeking to produce and exhibit the documents relating to re-assessment of the holding on 16.08.1980 or any other documents save and except the “electricity bills”, which are found to be already exhibited by the defendant No. 2(a). Hence, in opinion of this Court, no case is made out to permit petitioners to exhibit the said same set documents i.e. electricity bills twice. Moreover, along with the annexure- VII, being the copy of application under Order XLI Rule 27 CPC, the therein referred list of documents mentioned in paragraph-4 of the said petition, is not annexed along with this present revision. Therefore, no material is available before this Court to show the list or the nature of the documents sought to be introduced by the petitioners as additional evidence in the first appellate proceedings. As electricity power bills mentioned in para 3 of the said petition are found to be exhibited by one of the defendants, in the opinion of this Court no case is made out for interference with the order passed by the learned First Appellate Court.

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Hence, the present revision fails and the same is hereby dismissed. Parties are left to bear their own cost.

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The parties, who are duly represented by their learned counsel shall appear before the learned Civil Judge, Dibrugarh in connection with T.A. No. 16/2004 on 06.08.2018, and by producing a certified copy of this order, shall seek further instructions from the said learned Court.

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Page No.# 4/4

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Stay order passed earlier stands vacated.

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JUDGE

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Comparing Assistant

Chotu Devi Yadab and 2 Ors. v. Jamuna Prasad Koiri

Case brief

What is this about?

What did the court decide?

Chotu Devi Yadab and 2 Ors. v. Jamuna Prasad Koiri

Case brief

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Parties & counsel

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