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Suresh Chandra Das Vs. Maheswar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 602 of 1983
Judge
Reported inAIR1986Ori13
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27; Partition Act - Sections 4
AppellantSuresh Chandra Das
RespondentMaheswar Das and ors.
Appellant AdvocateB.M. Mohanty, ;S.C. Mohanty, ;B. Das, ;R.N. Panda and ;R.K. Nayak, Advs.
Respondent AdvocateB. Rath, Adv.
DispositionPetition dismissed
Cases ReferredLand Acquisition Officer v. H. Narayanaiah
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........title suit no. 60 of 1976 in the court of the subordinate judge, kendrapara, for partition of the suit properties. the petitioner is a purchaser from the share of defendant no. 1. he was impleaded as defendant no. 4 in the suit. the plaintiff claimed a right under section 4 of the partition act to re-purchase to share of defendant no. 1 which was sold to the petitioner. defendant no. 4 alone contested the suit. according to him. there was a partition by metes and bounds amongst the three brothers of the family long prior to the date of his purchase, i.e. 3-4-1968, and on this basis, his contention was that a suit for fresh partition of the properties was not maintainable in law and the relief under section 4 of the partition act was not available to be granted.3. the learned subordinate.....
Judgment:
ORDER

P.C. Misra, J.

1. Defendant No. 4 in the trial Court who is respondent No. 4 in the lower appellate Court is the petitioner in this revision application against the order dt. 22-7-1983 of the Additional. District Judge of Cuttack passed in Title Appeal No. 15 of 1980.

2. Opposite party No. 1 filed Title Suit No. 60 of 1976 in the Court of the Subordinate Judge, Kendrapara, for partition of the suit properties. The petitioner is a purchaser from the share of defendant No. 1. He was impleaded as defendant No. 4 in the suit. The plaintiff claimed a right under Section 4 of the Partition Act to re-purchase to share of defendant No. 1 which was sold to the petitioner. Defendant No. 4 alone contested the suit. According to him. there was a partition by metes and bounds amongst the three brothers of the family long prior to the date of his purchase, i.e. 3-4-1968, and on this basis, his contention was that a suit for fresh partition of the properties was not maintainable in law and the relief under Section 4 of the Partition Act was not available to be granted.

3. The learned Subordinate Judge after recording the evidence adduced by the parties and hearing the parties and considering the materials on record came to the conclusion under issue No. 5 that there was a complete partition amongst the three branches of the plaintiffs family in the year 1964. He, however, felt that on account of some acquisition and death of some members in the family, readjustment of the allotments made in the year 1964 was necessary. Though the suit for partition was decreed, the plaintiff was refused the relief under Section 4 of the Partition Act.

4. The plaintiff being aggrieved by the judgment of the trial Court filed Title Appeal No. 15 of 1980 which is now pending disposal before the Additional District Judge, Cuttack. The plaintiff-appellant filed an application under Order 41, Rule 27 of the C.P.C. for admitting certain documents as additional evidence. According to the plaintiff-appellant, if those documents which are some sale deeds are admitted into evidence, they would show joint acquisition by all the brothers and consequently the finding of the trial Court that there was a partition in the year 1964 would be reversed. The prayer for admitting the said sale deeds as additional evidence was allowed by order dt 29-4-1981 and the said documents were marked as Exts. 4, 5 and 6 series on 11-1-1982 on which date P. W. 3 was examined to prove the same. By order dated 16-1-1982, the lower appellate Court has allowed the respondent's prayer to afford him an opportunity of adducing evidence in rebuttal of the additional evidence which the appellant was previously allowed to do. The Court, however, has restricted the scope of rebuttal evidence by saying that it should be in relation to and in the context of the additional evidence concerning Exts. 4, 5 and 6 series and not beyond that. On 11-4-1983 the respondent examined one Jagabandhu Malla who deposed to the effect that he was present when there was partition amongst the three co-sharers and after partition, each of the co-sharers possessed the property in his share and has sold away portions of the properties out of his allotment. This evidence was objected to by the appellant on the ground that the rebuttal evidence could not be extended so as to reopen the issue. The learned Additional District Judge by the impugned order has directed respondent No. 4 to lead evidence only with reference to the documents admitted as additional evidence and not with regard to the previous partition.

5. In this revision it is not necessary to find out whether the Court was justified in allowing admission of the additional evidence. There is no dispute that where the appellate Court admits additional evidence at the instance of one party, the other party must be given the opportunity of adducing rebuttal evidence. The sole question that falls for determination in this revision is as to what would be the scope and limit of the said rebutta! evidence.

6. The Supreme Court in the case of the Land Acquisition Officer v. H. Narayanaiah, AIR 1976 SC 2403, has observed that in a case where it is found necessary to admit additional evidence, an opportunity should be extended to the other party to rebut any inference arising from its existence by leading other evidence. This means that rebuttal evidence permitted to be adduced must be limited to rebut the additional evidence and cannot be construed to give a free hand to the said party to lead any evidence which he could have adduced at the trial. In other words, the rebuttal evidence, the necessity for which arises on account of the additional evidence, must be in relation to and in the context of the additional evidence that has been allowed by the Court. The rebuttal evidence should be confined to destroy the evidentiary value of the additional evidence and the scope thereof would evidently be determined with reference to the facts of each case. In the present case, the plaintiff-appellant was permitted to prove certain sale deeds obviously for the purpose of establishing that all the three brothers had jointly acquired properties, with a view to controvert the finding of the trial Court that there was a partition in the year 1964. The respondents could show by way of rebuttal evidence the circumstances under which there was occasion for joint acquisition even though, according to them, the branches had separated long back. They can establish by way of rebuttal evidence the circumstances which led to joint acquisition of the properties by the three brothers even though their joint status had been severed. The rebuttal evidence may touch any aspect by which the joint acquisition would be consistent with the severance of status or partition as pleaded by the present petitioner. But admission of Exts. 4, 5 and o series would not entitled him to adduce further evidence which he could have adduced in the trial Court and which does not arise because of the admission of the additional evidence. The evidence of the witness examined on behalf of the petitioner-respondent No. 4 was to the effect that there was a partition in the presence of the witnesses which evidence could have been adduced in the trial Court irrespective of the introduction of Exts. 4, 5 and 6 series. It is permissible by way of rebuttal evidence to show that the parties after their alleged partition had separately acquired or sold properties to counter-act the inference arising out of the joint acquisition under Exts. 4, 5 and 6 series. But this does not mean that the petitioner who pleaded the partition in the trial Court and in proof of which there was enough scope for him to adduce evidence would be permitted to adduce further evidence on the said issue.

7. I am, therefore, of the opinion that the learned District Judge has rightly decided that the rebuttal evidence should be in relation to and in the context of the additional evidence contained in Exts. 4, 5 and 6 series and the petitioner cannot be allowed to re-open the issue by adducing fresh evidence.

The revision is accordingly dismissed. There would be no order for costs.


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