Patna High Court
Amrendra Kumar vs Kishori Das on 4 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.895 of 2023
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1. Amrendra Kumar, S/o Late Aash Narayan Thakur, Resident of Village-
Mirjapur Pamra, P.S. and District-Sitamarhi.
2. Prabha Shankar Thakur, S/o Late Ram Sobhit Thakur, Resident of Village-
Mirjapur Pamra, Pargana-Mihla, P.S. and District- Sitamarhi.
... ... Petitioner/s
Versus
1. Kishori Das, Son of Fulchand Das, Resident of Village- Mirjapur, Pamra,
Pargana-Mihla, P.S. and District- Sitamarhi.
2. Most. Sakuntala Devi, Widow of Jai Narayan Thakur, Resident of Village-
Mirjapur, Pamra, Pargana-Mihla, P.S. and District- Sitamarhi.
3. Mahendra Kumar, Son of Late Jai Narayan Thakur Resident of Village-
Mirjapur, Pamra, Pargana-Mihla, P.S. and District- Sitamarhi.
4. Dhirendra Thakur, Son of Late Jai Narayan Thakur Resident of Village-
Mirjapur, Pamra, Pargana-Mihla, P.S. and District- Sitamarhi.
5. Rashami Kumari, D/o Late Jai Narayan Thakur Resident of Village-
Mirjapur, Pamra, Pargana-Mihla, P.S. and District- Sitamarhi.
6. Smt. Mithilesh Devi, D/o Late Ram Padarath Thakur, W/o Ram Chandra
Chaudhary, Resident of Village- Dharampur, P.O- Bhittha P.S. Pupri,
District- Sitamarhi.
7. Smt. Suresh Devi, D/o Late Ramashish Thakur, wife of Sri Debesh Prasad
Ojha, Resident of Village- Kabra, P.O.-Malahi, P.S.-Sursand, District-
Sitamarhi.
8. Smt. Vindhyachal Devi, D/o Late Ramashish Thakur, wife of Sri Ram
Kalewar Mishra, Resident of Village and P.O.-Janipur, P.S. Nanpur, District-
Sitamarhi.
9. Smt. Archana Devi, D/o late Ramashish Thakur, wife of Sri Anil Kumar,
Resident of Village and P.O. Muradpur, P.S. Dumra, District Sitamarhi.
10. Jitendra Kumar Thakur, S/o Late Ramashish Thakur, Resident of Village
Mirjapur Pamra, P.O.- Raghopur Bakhri, P.S. and District- Sitamarhi.
11. Rajeev Thakur, S/o Late Ram Sobhit Thakur, Resident of Village- Mirjapur
Pamra, Pargana- Mihla, P.S. and District- Sitamarhi.
12. Smt. Vinita Devi, D/o Ram Sobhit Thakur, wife of Sri Ramashish Mishra,
Resident of Village- Baghanipatti, P.S. Madhawanpur, District- Madhubani.
13. Smt. Anita Sinha, D/o Late Ram Sobhit Thakur, wife of Sri Sunil Singh,
Resident of Village- Dhurwar, P.S. Parsauni, District- Sitamarhi.
14. Smt. Amrita Chaudhary, D/o Late Ram Sobhit Thakur, wife of Sunil Singh,
Resident of Village- Dhurwar, P.S. Parsauni, District- Sitamarhi.
15. Pushpa Kumari, D/o Late Aash Narayan Thakur, wife of Shambhu Prasad
Thakur, Resident of Village and P.S. Janakpur Dham, District- Dhanusha
(Nepal).
16. Kalpana Kumari, D/o Late Aash Narayan Thakur, wife of Shivnandan
Patna High Court C.Misc. No.895 of 2023 dt.04-01-2024
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Chaudhary, Resident of Village and P.O.- Hanuman Nagar, P.S. Sursand,
District- Sitamarhi.
17. Ragni Kumari, D/o Late Aash Narayan Thakur, wife of Prabhu Nandan
Shahi, Resident of village- Malikana, P.O. Subhai, P.S.-Dumra, District-
Sitamarhi.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mrs. Vagisha Pragya Vacaknavi, Advocate
For the Respondent/s : None
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 04-01-2024
Heard learned counsel for the petitioners and the matter
has been taken up for disposal since none appeared on behalf of
respondent 1st party despite service of notice.
2. The petitioners have filed the instant petition for
quashing the order dated 11.08.2023 passed by learned Sub-
Judge-I, Sitamarhi in Title Suit No. 11 of 1997 rejecting the
petition dated 10.05.2023 filed on behalf of the
plaintiffs/petitioners with a prayer for admitting deposition of
deceased defendant no.2, namely, Sunaina Devi in Trial No. 525
of 1999 before the court of learned Judicial Magistrate-1st
Class, Sitamarhi in the matter of State Vs. Jai Narayan Thakur.
3. Learned counsel for the petitioners submits that the
petitioners are the plaintiffs before the learned court below and
are legal heirs of original plaintiff Ram Sobhit Thakur who
instituted a title suit bearing Title Suit No. 11 of 1997 in the
Patna High Court C.Misc. No.895 of 2023 dt.04-01-2024
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court of learned Munsif, Sitamarhi Sadar against the defendants
including defendant no.2, Sunaina Devi, who is since dead. The
suit was decreed vide judgment dated 24.12.2021 and decree
dated 07.01.2021 passed by learned Sub-Judge-1, Sitamarhi.
The defendant/respondent no.1, namely, Kishori Das filed Title
Appeal No.01 of 2022 against the aforesaid judgment and
decree passed in Title Suit No. 11 of 1997. The first appellate
court remanded the matter to the learned trial court in terms of
the following order:-
"(iii) The case is remanded back to the trial
court to pass fresh judgment/decide the
case after giving opportunity to the
appellant/respondents, in respect of the
following only:
(a) Court will give opportunity to the contesting
defendant/appellant to cross examine to the non
survey knowing pleader commissioner Rajeev
Ranjan Singh examined on behalf of plaintiffs as
P.W.-15.
(b) The court will have discretion to allow
petition for appointment of non survey knowing
pleader commissioner, if filed on behalf of
appellant/defendant 1st party and liberty to
examine the non survey knowing pleader
commissioner in support of his report, if any, but
will give opportunity of cross-examination on
behalf of plaintiffs & other defendants.
(c) Court will also give opportunity to the
Patna High Court C.Misc. No.895 of 2023 dt.04-01-2024
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defendant 1st party/appellant to cross-examine
Durga Prasad Thakur examined on behalf of
plaintiffs as PW13.
(d) Court will also give opportunity to the
contesting defendant/appellant to file objection
petition in respect of amendment in the relief of
the plaintiff and liberty to adduce-evidence in
support of his objection petition.
(e) Court will hear the final argument on both
sides."
4. After remand of the matter, the petition dated
10.05.2023
was filed by the petitioners/plaintiffs for admitting
deposition of deceased defendant no.2, namely, Sunaina Devi,
who deposed in Trial No. 525 of 1999 in which she has admitted
that she married with Ramashish Thakur while his first wife,
namely, Raj Kumari Devi was alive. The petitioners filed a
certified copy of deposition of deceased defendant no.2 along
with list of documents in the aforesaid suit on the same day i.e.,
10.05.2023. Rejoinder was filed by defendant/respondent no.1
on 12.05.2023. However, learned trial court misconstrued the
remand order in appeal and rejected the application dated
10.05.2023 filed on behalf of the plaintiffs/petitioners holding
that the record was remanded from the appellate court with
specific directions as mentioned on page no.9 of the judgment
and no liberty was given to the plaintiffs to bring on record any
new evidence.
Patna High Court C.Misc. No.895 of 2023 dt.04-01-2024
5. Learned counsel further submits that the remand order
in appeal shows that the certain restrictions were imposed upon
appellants/respondents but there was no bar upon the plaintiffs
to produce fresh evidence. Learned counsel further submits that
the trial court did not take into consideration the fact that these
petitioners were transposed as plaintiffs in place of Ram Sobhit
Thakur on 24.11.2021. Learned counsel further submits that the
plaintiffs had no knowledge of the said deposition of late
Sunaina Devi as Jai Narayan Thakur was custodian of all the
records of this case as well as criminal case.
6. Learned counsel further submits that the learned trial
court failed to consider that bringing material evidence on
record cannot be denied in the garb of the restrictions imposed
in the appellate court's order. The document sought to be
brought on record is a public document under Section 74 of the
Evidence Act. Then this is an important document which will
enable the learned trial court to decide the real controversy
between the two parties effectively and completely. The learned
trial court also failed to consider the fact that evidence which is
required to arrive at a definite finding in order to end the dispute
can be produced at any stage even at the appellate stage. The
learned trial court also lost sight of the adage that only the truth
Patna High Court C.Misc. No.895 of 2023 dt.04-01-2024
should be guiding star in all cases and for arriving at truth, it
could also use its inherent power. Thus, learned counsel
submits that if such material documentary evidence having
direct bearing on the issues involved in the title suit is not taken
on record and marked as exhibit then it will cause miscarriage
of justice and would adversely affect the interest of the
plaintiffs/petitioners.
7. Perused the records.
8. Having regard to the facts and circumstances and
submissions made on behalf of the petitioners, I am of the
opinion that the learned trial court ought to have considered the
prayer of the petitioners in right earnest. The matter was
remanded to it with certain directions by the learned first
appellate court but bare reading of it shows the same were
imposed upon the appellants/respondents. The learned trial court
should have considered the fact that the documents sought to be
brought on record might not be available to the
petitioners/plaintiffs and if the material is relevant for the
purpose of deciding the controversy between the parties, the
same should be taken on record notwithstanding any bar put up
by the first appellate court while remanding the matter.
Moreover, it goes without saying the parties should be given fair
Patna High Court C.Misc. No.895 of 2023 dt.04-01-2024
opportunity of hearing and for this it is also necessary that the
best evidence should be brought on record. I am afraid the
learned trial court committed an error when it failed to exercise
the jurisdiction vested in it by not allowing the petitioners to
bring on record a document which is deposition of a person
before a court of competent jurisdiction.
9. In view of the discussion made hereinabove, the
impugned order dated 11.08.2023 passed by learned Sub-Judge-
I, Sitamarhi in Title Suit No. 11 of 1997 is set aside and the
petition dated 11.05.2023 filed on behalf of the
plaintiffs/petitioners is allowed and the learned trial court is
directed to make the document as exhibit by allowing the
petitioners to bring it on record as evidence while giving ample
opportunity to the opposite side to rebut/controvert the same.
10. With the aforesaid observations and directions, the
instant petition stands allowed.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.01.2024
Transmission Date NA
