Tripura High Court
Sri Rajkumar Roudra Paul vs Sri Himangshu Paul on 28 February, 2025
Page 1 of 5
HIGH COURT OF TRIPURA
AGARTALA
CRP No.12 of 2025
Sri Rajkumar Roudra Paul, S/o Late Rukmini Roudra Paul, of Gopal Nagar,
P.S. Kalyanpur, District-Khowai, Tripura.
......... Petitioner(s).
VERSUS
Sri Himangshu Paul, S/o Late Hirendra Paul, of Gopalnagar (Kunjaban), P.S.
kalyanpur, District-Khowai, Tripura.
......... Respondent(s).
For Petitioner(s) : Mr. Pradip Chakraborty, Advocate,
Ms. Sukriti Debnath, Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
28/02/2025
Heard Mr. Pradip Chakraborty, learned counsel for the petitioner.
The petitioner is the plaintiff in Title Suit No.6 of 2019 instituted
for declaration of right, title, interest over the suit land as mentioned in
Schedule "A" of the plaint and also for recovery of possession of the suit land
as mentioned in Schedule "B" of the plaint. By the judgment dated 17.01.2023
passed by learned Civil Judge (Sr. Div.), Khowai, Tripura. The suit was
dismissed in the following manner:
"Conclusion
As a corollary to the discussion and decision made on
all the foregoing issues, I am of the considered opinion that the
plaintiff has not been successful to prove that he is entitled to a
decree declaring his right, title and interest over the suit land
described in Schedule "A" of the plaint. The plaintiff has also not
been successful in proving that he is entitled to a decree for recovery
of possession of the suit land described in Schedule "B" of the plaint
evicting the defendant from there.
ORDER
It is hereby declared that the plaintiff has not been
successful to prove that he is entitled to a decree declaring his right,
title and interest over the suit land described in Schedule "A" of the
pliant. The plaintiff has also not been successful in proving that he is
entitled to a decree for recovery of possession of the suit land
described in Schedule "B" of the plaint evicting the defendant form
there.
Thus, the case is disposed of on contest."
The plaintiff being aggrieved has preferred Title Appeal
No.02/2023 before the learned District Judge, Khowai. During pendency of the
appeal, the defendant/respondent sought to adduce additional evidence in the
nature of a Khatian and the present appellant also sought to adduce additional
evidence in the nature of certified copy of sale deed bearing No.1-809 dated
12.07.2011 and certified copy of partition deed No.1-528 dated 19.05.2008
invoking Order XLI, Rule 27 of the CPC. Plaintiff/appellant also prayed for
appointment of a Survey Commissioner. The prayer of the defendant-
respondent to adduce additional evidence was rejected. Both the prayers by the
plaintiff/appellant/petitioner have been rejected by the impugned order.
Petitioner being aggrieved has approached this Court in revision. The learned
appellate Court has observed that any evidence in the appeal stage cannot be
looked into without any pleadings in that regard. Moreover, the sale deed dated
12.07.2011 was duly exhibited and marked as Exbt.A during trial on
identification by DW-1 without any objection.
Mr. Pradip Chakraborty, learned counsel for the petitioner submits
that the necessity to seek additional evidence in the nature of these two
documents arose in view of a copy of a Khatian sought to be introduced as
additional evidence on behalf of the respondent which revealed that the
vendors of the respondent was not the owner of RS Plot No.7277 under
Tehasil-Dwarikapur, Mouja-Kunjaban, P.S. Kalyanpur. These additional
evidences were necessary to dislodge the case of the appellant at the appellate
stage in order to succeed.
It is further submitted that the learned appellate Court has
erroneously refused to allow appointment of a survey commissioner to identify
the suit land as it would be necessary to establish whether the defendant was in
possession of Schedule "B" suit land and also for a declaration in respect of
Schedule "A" of the plaint in favour of the present plaintiff. Therefore, the
petitioner has approached this Court in revision.
I have considered the submission of the learned counsel for the
petitioner and also gone through the impugned order. The provision for
adducing additional evidence are contained in Order XLI, Rule 27 of the CPC
is well settled. Order XLI, Rule 27 of the CPC reads as under:
"27. Production of additional evidence in Appellate Court.- (1)
The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But
if-
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
[(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced by
him at the time when the decree appealed against was passed,
or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be
produced or witness to be examined.
(2) Whenever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the reason
for its admission."
These two documents which were sought to be adduced by the
plaintiff-petitioner herein were not those which were not in existence at the
time of the trial since they are prior to the institution of the Title Suit No.6 of
2019. The plaintiff has also not been able to show that despite due diligence
these documents could not be produced in evidence during trial or that the
learned trial Court refused to admit them. The plea of the plaintiff is based
upon an attempt on the part of the defendant/respondent in TA No.02/2023 to
adduce additional evidence in the nature of a Khatian which has also been
rejected. As such, the approach of the learned appellate Court in refusing to
allow the prayer for adducing additional evidence in favour of the plaintiff is
well reasoned and does not call for interference. However, the learned appellate
Court has also rejected the plea for appointment of a survey commissioner for
local investigation for identification of the suit property as per boundary of the
sale deed. The learned appellate Court has observed that at no point of time the
appellant approached the learned trial Court with such an application.
Therefore, he did not find any merit in such a plea.
Mr. Pradip Chakraborty, learned counsel for the petitioner submits
that appointment of survey commissioner in terms of Order XXVI, Rule-9 is
within the domain and discretion of learned trial Court or the appellate Court
and it can be exercised at any point of time in order to assist the learned Court
in arriving at the adjudication of the real issue in controversy by identification
of the suit lands. Therefore, rejection of this prayer at this stage was not proper.
He, however, submits that in case this Court is not inclined to interfere in the
order of rejection of the application for appointment of survey commissioner at
this stage, such liberty may be left open to the appellate Court to be exercised
at an appropriate stage if deem fit.
Upon consideration of the submission of the learned counsel for
the plaintiff/appellant/petitioner this Court is of the view that though such a
prayer for appointment of survey commissioner at this stage has been declined
by the learned Court vide impugned order dated 19.11.2024 but it shall not
preclude the learned appellate Court from exercising such discretion at an
appropriate stage if it deems fit.
With these observations, the instant petition is disposed of without
interfering in the impugned order.
Pending application(s), if any, shall also stand disposed of.
(APARESH KUMAR SINGH), CJ
Munna MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2025.03.03 16:04:39 +05'30'
