Dismissed

Hari Gopal Biswas v. Md. Ismail Ali and 2 Ors.

Gauhati HC3 Nov 2022CRP(IO)/87/2022

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the Gauhati High Court dismissed the challenge against a trial court order permitting an official witness to clarify the deed number (23/1946 vs 158/1946) of an exhibited sale deed. The bench held no jurisdictional error existed under Article 227.

What did the court decide?

The writ petition was dismissed; the stay order on Title Suit No.10/2016 was vacated, and parties directed to appear in court on 22.11.2022.

Hari Gopal Biswas Vs Md. Ismail Ali and 2 Ors. — Property and Title | Gauhati HC (2022)

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GAHC010179232022

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

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Case No.: CRP(IO)/87/2022

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HARI GOPAL BISWAS S/O LATE SRI HARAN BISWAS R/O VILL-NO. 2 ORANG BASTI MOUZA-NAOBAICHA P.S.-NORTH LAKHIMPUR DIST-LKAHIMPUR ASSAM

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VERSUS

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MD. ISMAIL ALI AND 2 ORS S/O LATE FAZAR ALI R/O VILL- NO. 1 RAMPUR MOUZA-NAOBAICHA P.S.-NORTH LAKHIMPUR DIST-LAKHIMPUR ASSAM

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2:MD. ISAHAQUE ALI S/O LATE FAZAR ALI R/O VILL- NO. 1 RAMPUR MOUZA-NAOBAICHA P.S.-NORTH LAKHIMPUR DIST-LAKHIMPUR ASSAM 3:MD ISOB ALI S/O LATE FAZAR ALI R/O VILL- NO. 1 RAMPUR MOUZA-NAOBAICHA P.S.-NORTH LAKHIMPUR DIST-LAKHIMPUR ASSAM

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-----------Advocate for : MS. B CHOUDHURY Advocate for : MR. A GANGULY appearing for MD. ISMAIL ALI AND 2 ORS

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BEFORE

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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03.11.2022

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Heard Ms. B. Choudhury, the learned counsel for the petitioner and Mr. A. Ganguly, the learned counsel for the respondents.

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This is an application under Article 227 of the Constitution of India challenging the order dated 24.03.2022 passed in Title Suit No.10/2016 whereby the Court of the Munsiff No.1, North Lakhimpur vide the impugned order permitted the petitioner to call the official witness to depose as regard the correctness of the dalil exhibited as Ext.7 to the effect as to whether the Deed Number of the said Exhibit is Deed No.158/1946 or Deed No.23/1946.

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I have heard the learned counsel for the parties. The learned counsel for the petitioner submitted that after the evidence on affidavit being filed and the plaintiff witnesses having already been cross-examined, an application was filed seeking amendment of the additional written statement of the plaintiffs whereby they wanted to change the Deed Number from Deed No.23/1946 to Deed No.158/1946 as appeared in Ext.7. The learned counsel for the petitioner submitted that the said application was rejected by the trial court.

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In order to wriggle out from the complications which have been arisen out of the rejection of the amendment application, the plaintiffs filed

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another application for calling official witness to prove the actual Deed No. of Ext.7 as to whether it is Deed No.158/1946 or Deed No.23/1946.

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The learned counsel for the petitioner submitted that the same could not have been done so by way of a petition under Section 151 of the CPC taking into account that when there is an appellate or revisional jurisdiction provided under the law to challenge the order of amendment and that having not been availed to an application under Section 151 of the CPC is not permissible. The learned counsel for the petitioner submitted that the Trial Court however erred in law in allowing the application under Section 151 of the Code for which the present application has been filed.

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On the other hand, Mr. A. Ganguli, the learned counsel for the respondents submitted that the respondents herein as plaintiffs filed the suit seeking right, title and interest on the basis of inheritance. In the written statement-cum-counterclaim, the defendant who is the petitioner herein has raised the objection that the plaintiffs are not permanent residents of the said area. In support of the fact that the plaintiffs are the permanent residents of the said area, the plaintiffs filed an additional written statement wherein the Deed of Sale dated 03.05.1946 was referred to in the pleadings and in the said pleadings it was inadvertently mentioned that the Deed No. to be 23/1946 which ought to have been Deed No.158/1946. The learned counsel for the respondents further submitted that this confusion, on the part of the plaintiffs, continued till the crossexamination of the plaintiffs was closed and thereupon it was realized that the actual Deed Number of the said Sale Deed dated 03.05.1946 is Deed No.158/1946 and not the Deed No.23/1946. It is under such circumstances an application was filed seeking amendment to the additional written

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statement. However, the said application was rejected and it is under such circumstances, the CRP(IO) No.213/2022 has been filed before this Court challenging the said order of rejection of the amendment of the additional written statement.

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Be that as it may, the learned counsel for the petitioner submits that the said Deed of Sale dated 03.05.1946 has already been exhibited before the Court and marked as Ext.7. By way of the application under Section 151 of the CPC, the plaintiffs/respondents herein have only sought for a direction to call for the official witness to clarify as to whether the said Deed, i.e. Ext.7 is numbered as Deed No.23/1946 or Deed No.158/1946. The learned counsel for the respondents submitted that taking into account that ascertaining of the truth should be the goal, the trial court vide the impugned order dated 24.03.2022 allowed the said application observing that the prayer so made is material for determining the real question in controversy which would also help in avoiding the multiplicity of the proceedings. The learned counsel for the respondents therefore submitted that in the facts of the instant case no interference is called for under Article 227 of the Constitution.

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I have heard the learned counsel for the parties and also perused the materials on record. During the course of hearing, the learned counsel for the respondents has drawn the attention of this Court to Ext.7 which has already been tendered in evidence. It appears from Ext.7 that apart from various numericals being mentioned therein there are two numbers, one is 23 and the other is 158. This Court has also taken note of Section 91 of the Indian Evidence Act, 1872 which stipulates that when the terms of a contract, or of a grant, or of any other disposition of property, have been

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reduced to the form of a document, and in all cases in which any matter is required by law to be reduced in the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. In the instant case, it would also be seen that numerical 23 and 158 as has been mentioned in Ext.7 does not clearly show as to which is Serial Number and which is the document Deed Number. It would be the officials of the Sub-Registry in question who could give the best evidence as to what is the actual number of the Deed, i.e. Ext.7.

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The learned Trial Court, taking into account the said aspect of the matter, has allowed the said application to call for the official witness to give evidence as to what is the actual Deed Number of Ext.7 which is the Deed of Sale dated 03.05.1946.

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Under such circumstances, this Court is of the opinion that the order passed by the trial court dated 24.03.2022 does not suffer from any jurisdictional error thereby calling for interference under Article 227 of the Constitution of India.

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Consequently, the instant petition stands dismissed.

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This Court vide the order dated 06.05.2022 had stayed further proceedings in Title Suit No.10/2016. The said order stands vacated and the parties are directed to appear before the Trial Court on 22.11.2022

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JUDGE

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Comparing Assistant

Hari Gopal Biswas v. Md. Ismail Ali and 2 Ors.

Case brief

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Hari Gopal Biswas v. Md. Ismail Ali and 2 Ors.

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