Sri Badal Pradhan & Ors vs Sri Shyamal Pradhan & Anr
2022 Latest Caselaw 237 Cal

Dl.   January
17.   31, 2022
                                  Through Video Conference

                                     F.M.A.T. 574 of 2021

                                   Sri Badal Pradhan & ors.
                                              Vs.
                                  Sri Shyamal Pradhan & anr

                             Mr. Amit Baran Dash,
                                        ...for the appellants.

                             Mr. Swarnendu Ghosh,
                             Mr. Surya Maity,
                             Ms. Amrita Maji,
                                        ...for the respondents.

The appellants have come up before this court against

an appellate order directing open remand.

The suit relates to declaration of title and cancellation

of a deed of gift alleged to have been executed on January 19, 2009.

The plaintiffs/appellants and the defendants/respondents are the

uterine brothers. The appellants alleged that on June 12, 2011, the

defendant no. 1 threatened to dispossess the plaintiffs/appellants

from the suit property claiming that the 'ka' scheduled property has

been gifted to him by their father vide a gift deed being No. 348

dated January 19, 2009. The defendants/respondents contested the

suit and supported execution of the said deed of gift in favour of the

defendant no. 1 alleged to have been done by their father putting his

left thumb impression over the said document. Before the trial

court, the certified copy of the said deed of gift was exhibited

without any objection. The defendants also claimed to have

produced the original deed of gift and the signature of Sri Rabindra

Nath Pradhan, one of the attesting witnesses in the said deed of gift

was marked as exhibit 'C'. However, the defendants curiously did

not invite the court to mark the original deed of gift as exhibit, the

reason presumably being that the certified copy of the deed of gift

has already been marked as exhibit.

The parties have adduced evidence on all the issues

including the genuineness of the said deed of gift. The trial court

decreed the suit in favour of the plaintiffs.

In the appeal before the first appellate court, the

defendants/respondents filed an application under Order XLI Rule

27 of the Code of Civil Procedure inviting the appellate court to

take into consideration the original deed of gift and for a direction

upon the trial court to take fresh evidence in respect of the said deed

of gift being no. 348 of 2009 and also to give opportunities to the

parties to cross examine the witness.

The first appellate court although had noticed that the

certified copy of the deed of gift has been marked as exhibit-1, but

remanded the suit for fresh consideration on the ground that the said

document was marked as an exhibit without following proper

procedure according to the provisions of Indian Evidence Act. The

first appellate court did not specify which procedure was not

followed. The said document was marked as exhibit-1 without any

objection. The first appellate court, taking into consideration the

fact that the defendant no. 1 during the course of his examination in

chief filed the original deed of gift and that one of the attesting

witnesses, namely, Rabindra Nath Pradhan, has been examined as

plaintiffs' witness no. 2 and that the signature of the said witness

has been marked as exhibit-'C', arrived at a finding that since the

original deed of gift produced by the defendants has not been

marked as an exhibited document, the judgment of the trial court

suffers from a material irregularity for which open remand is

required.

We find that the first appellate court has completely

misled its mind in directing the fresh trial. It is always open to the

appellate court to take the said document on record by following the

procedure Order XLI Rule 27(1)(b) of the Code of Civil Procedure

instead of remanding the matter to the trial court. The first appellate

court could have marked the said document as an exhibit and

disposed of the appeal on merits. In absence of any challenge being

thrown to the certified copy of the deed of gift and also in absence

of any discrepancy being noticed between the original deed of gift

and the certified copy of the same, being exhibit-1, there was no

necessity of fresh evidence to be taken on remand.

Accordingly, the order of remand passed by the first

appellate court is set aside. The first appellate court is directed to

hear the appeal on merits after taking the original deed of gift on

record without any further evidence.

We make it clear that we proceeded on the basis that

there is no discrepancy between the original deed of gift and the

certified copy of the same as the learned advocates for the parties

are unable to point out any such discrepancy at this stage.

However, if there is a material discrepancy between the

certified copy of the deed of gift and the original deed of gift, for

which the parties may adduce evidence before the first appellate

court only with regard to such material discrepancy.

With the aforesaid observations, the appeal is disposed

of even at the admission stage.

In view of disposal of the appeal, nothing remains in

the application for stay filed under CAN 1 of 2021 and the same is

also disposed of.

There will be no order as to costs.

Photostat certified copy of this order, if appalled for,

will be made available to the applicant within a week from the date

of putting in the requisites.

( Soumen Sen, J. )

( Ajoy Kumar Mukherjee, J. ) dns