Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 1841 of 2021 Petitioner :- Manendra Maurya Respondent :- Ram Nagina Maurya (Since Deceased) And 7 Others Counsel for Petitioner :- Arvind Kumar Shukla,Gopal Krishna Pandey
Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioner.
By means of this petition under Article 227 of the Constitution, the order dated 2.2.2021 passed by Additional District Judge, Court No.1, Mau in pending Civil Appeal Nos.29 of 2018 and 30 of 2018.
The facts matrix of the case is that a suit was filed by the respondents for partition. In the suit a counter claim was filed by the present petitioner claiming the rights for being adoptive son of Ram Prasad and accordingly, was entitled for one half share in the property in question. However, in the counter claim it is admitted that because of the good relation between the plaintiff's father and the petitioner's grandfather, two rooms were handed over as licensee to the plaintiff's father. Both the counter claim and suit came to be decided by common judgment and order and while suit for partition as set up by the plaintiff respondents was dismissed, the counter claim was allowed and the petitioner was held to be the owner of the property in suit. Two appeals were filed against the dismissal of the suit as well as the decree in respect of the counter claim of the trial court before the court below by the plaintiff respondents.
In the pending appeals, plaintiff moved an application for making an additional issue as to whether the plaintiff respondents were living in the suit property in the capacity of a licensee of the grand father of the petitioner and that it is this application that has been allowed by the order impugned and it is, this above order which is being assailed.
The argument of learned counsel for the petitioner is that if this additional issue is allowed to be framed and sustained then further evidence will be required to be led. He submits that evidence are already on record and if the petitioner has made a statement in its counter claim with regard to the rights of the plaintiff respondents as a licensee, the Court could have considered the same as the trial court has considered and has denied the claim of the plaintiff in the suit property.
Having heard learned counsel for the petitioner and having gone through the order assailed in the present petition, I find that the pleadings as has come to be raised in paragraph -14 of the counter claim, it is clear that the plaintiffs were residing in the capacity of the licensee and therefore, this issue has not been framed regarding the licensee status of the plaintiffs by the trial court and, therefore, it would be well within the right of the lower appellate court to frame such an issue.
Since the evidence is already on record and it is based upon the petitioner's statement made in the counter claim that the plaintiffs were residing in the capacity of the licensee, it is the petitioner defendant who may lead evidence to clarify his position.
Sri Arvind Kumar Shukla, learned counsel for the petitioners submitted that the petitioners do not want to lead evidence as the evidence has already been led by them and statement has been made by them in the counter claim, the Court can proceed to decide the same.
As the evidence has already been led and the petitioner does not want to lead evidence the cross examination and cross examination had already taken place in suit and the statement made in the counter claim is already on record, it is, therefore, directed that this additional issue by the court below may be decided by the court of appeal on the basis of evidence already on record.
However, in the interest of justice if any application is moved to get the petitioner examined and cross-examined by the appellant in respect of the additional issue framed by the trial court the said application shall be considered and only one opportunity be accorded by the appellate court to examine and cross-examine the petitioners who are respondents in the appeal and thereafter the Court shall proceed to decide the pending appeals as expeditiously as possible.
The Court, therefore, does not interfere in the order of the court of lower appellate court and this petition is disposed of with the aforesaid observations and directions.
Order Date :- 12.8.2021 Deepika