The Patna High Court, while allowing a petition filed under Article 227 of the Constitution of India for quashing the order vide which the petitioner was debarred from cross-examining the witness-respondent, held that the petitioner could be allowed to adduce oral evidence with regard to the wrong plot number or boundary of the correct plot number and in order to prove his contention, it is open to the petitioner to bring evidence for determining the existence of mistake and plaintiff could put such questions in cross-examination to the respondent.
Brief Facts:
The petitioner filed a Title Suit for declaration of the title of the plaintiff on the suit land and for confirmation of possession over the said property apart from recovery of possession in case the plaintiff was dispossessed during the pendency of the suit and also for permanent injunction against the defendant. While the evidence of the defendant was being recorded, the learned Munsif did not permit the learned counsel for the petitioner to cross-examine the defendant/respondent on the point relating to the contents of the document specifically on the point of boundary mentioned in the sale deed executed by his vendor in favor of the petitioner. The review petition filed by the petitioner was dismissed. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the Learned trial court committed an error when it ordered to debar the petitioner from cross-examining the respondent on the point of change in the contents of the document under the provisions of Sections 91 and 92 of the Act. The learned trial court lost sight of the fact that the whole suit was based on the issue whether incorrect plot number has been mentioned in the sale-deed.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that there is no infirmity in the impugned order and the same needs to be sustained. He argued that the learned trial court rightly debarred the petitioner from asking questions with regard to the contents of a registered document, which is not admissible under the provisions of Sections 91 and 92 of the Act.
Observations of the Court:
The Court noted that the issue involved is whether the respondent could be put to cross-examination on the point of correctness of the plot number and the boundary as mentioned in two sale deeds since the learned trial court disallowed the cross-examination under the provisions of Section 91 and 92 of the Act.
The Court observed that Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as disposing of rights. The Court said that if there is any misdescription of the property or the khesra number has been wrongly mentioned, the same would come under the purview of Proviso (1) of Section 92 of the Act. The plaintiff/petitioner could be allowed to adduce oral evidence with regard to the wrong plot number or boundary of the correct plot number and in order to prove his contention, it is open to the plaintiff/petitioner to bring evidence for determining the existence of mistake and plaintiff could put such questions in cross-examination to the defendant/respondent. Such oral evidence is covered under Proviso (1) of Section 92 of the Act relating to mistake of fact and would not run counter to the provisions of Sections 91 and 92 of the Act.
The decision of the Court:
The Patna High Court, allowing the petition, held that the learned trial court committed an error of jurisdiction in rejecting the question put to the respondent in cross-examination.
Case Title: Radhe Yadav v Prabhas Yadav
Coram: Hon’ble Justice Arun Kumar Jha
Case no.: CIVIL MISCELLANEOUS JURISDICTION No.1076 of 2017
Advocate for the Petitioner: Mr. Ajit Kumar Singh
Advocate for the Respondents: Mr. Suman Kumar Mishra
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