Heard Sri S.K. Purwar, learned counsel for the petitioners and Sri Anupam Kulshrestha, learned counsel for the contesting respondents.
The second appeal has been dismissed by the Board of Revenue by the impugned order on 11th May, 2011 holding that no substantial question of law was involved and accordingly, the orders dated 31.3.2011 and the order dated 27.12.2008 were upheld. The proceedings arose out of a suit under Section 176 of the U.P. Z.A. & L.R. Act for partition.
The dispute further indicates that it centers around the property acquired under the sale deeds wherein the respondents plaintiffs claimed equal shares to the extent of 1/7th share each whereas the petitioners defendants contend that apart from the land under the sale deed dated 10.5.1988 where the shares have been indicated as 1/7th each, the share of the other parties, which was subject matter of different sale deeds brought on record through a short counter affidavit have to be distributed by allocating 1/8th share to the contesting respondent nos. 1 to 3 whereas the petitioner nos. 4, 5 and 6 are entitled to 1/6th share each. The trial court proceeded with the matter and from the order sheet it appears that the plaintiffs' witnesses were being cross examined. The order sheet dated 20th September, 2008 indicates adjournments of the case on the ground of further cross examination of the plaintiffs' witnesses and the date fixed was 25.9.2008.
It appears that an application dated 20.9.2008 was filed on 25.9.2008, copy whereof has been filed as annexure-6 to the writ petition to which the petitioners took an objection and the Court directed for filing of objections on the said application fixing 16.10.2008. On 16.10.2008, the objection was filed and the said application remained pending. It is further to be noted from the subsequent order sheet of the dates fixed that no further cross examination of the plaintiffs' witnesses was continued and the matter was fixed for orders on 27.12.2008 on which date the suit was decreed.
Learned counsel for the petitioner Sri S.K. Purwar contends that the dispute, which was raised with regard to the shares, could have been decided and adjudicated only after the cross examination of the plaintiffs' witnesses was completed but without proceeding with the same and only fixing dates on the application the suit was decreed on 27.12.2008, which prejudices the claim of the petitioners. He further submits that the petitioners have been denied the opportunity of cross examination and the trial Court hastily proceeded to decree the suit depriving the petitioner of the opportunity of putting the witness to cross examination on that issue.
A short counter affidavit has been filed by Sri Anupam Kulshrestha, learned counsel appearing on behalf of the respondents contesting herein, namely, respondent nos. 4 to 7. He contends that the sale deeds that are being made the basis of the claim of the petitioners defendants do not indicate any specified share and, therefore, a presumption in view of the provisions of Section 92 of the Indian Evidence Act is to be made that the plaintiffs and the defendants all had equal shares in the land which are subject matter of the said sale deeds and hence the dispute which is now sought to be raised by the petitioners is purely unfounded and proceedings are being pursued on a very highly technical ground. He contends that as a matter of fact, the petitioners are trying to take undue advantage of the absence of one of the brothers of the answering respondents and the shares were very well known at the time of execution of the sale deed which also stands corroborated by the sale deed dated 10th May, 1988, whereby 1/7th share has been indicated in respect of all the parties. He, therefore, contends that there being no evidence, the petitioners should not be permitted to get the matter reagitated and the trial re-opened on this technical ground.
Having heard learned counsel for the parties and having noticed the facts as canvassed before this Court, it is evident that the cross examination of the plaintiffs' witnesses was never completed and the trial court straightway proceeded to decree the suit. If the contention of the contesting respondents is accepted that the shares of the defendants have not been indicated in the sale deeds then all care should have been taken by the trial court and it was necessary for the trial court to let the cross examination be completed to gather all the evidence to indicate the shares of the parties which are sought to be adjudicated by going through the procedure prescribed under law after allowing the witnesses to lead the evidence. The trial court committed a manifest error by abandoning the said procedure. Apart from this, so far as reliance being placed on the affidavits for the purpose of determining the shares in a suit under Section 176 of the U.P. Z.A. & L.R. Act is concerned, it would not have been a material clinching evidence so long as the oral evidence was not allowed to be completed. An affidavit is not an evidence in a trial Court unless permitted under Order 19 of the Civil Procedure Code. The plaintiffs' witnesses, therefore, ought to have been allowed to have undergone the cross examination and the trial court should not have cut short the same. Accordingly in view of the conclusions drawn hereinabove, in opinion of the Court, the court below committed an error by dismissing the second appeal holding that there was no question involved to interfere with the order of the courts below.
Accordingly, the writ petition is allowed. The impugned orders are quashed. The matter is remitted to the trial court to proceed from the stage of the cross examination of the plaintiffs' witnesses as per the order sheet dated 20.9.2008 and shall complete the hearing of the case as expeditiously as possible but not later than six months from the date of presentation of a certified copy of this order.
The parties are directed to put in appearance before the trial court on 2nd August, 2011 whereafter the trial court shall proceed to fix dates and decide the matter.
With the aforesaid observations, the writ petition is allowed.
Order Date :- 12.7.2011 Shiraz