Prasun Kumar Deb, J.
1. This civil revision application has been preferred by the application-petitioners against the order dated 7.9.1996 passed by the District Judge, Gumle, in Title Appeal No. 25 of 1991 whereby the application filed by the opposite party-respondent under Order XLI, Rule 27 of the Code of Civil Procedure was allowed.
2. The suit was filed by the opposite party as plaintiff being Title Suit No. 42 of 1981 for declaration of her title and confirmation of possession in respect of 0.26 acres of land appertaining to Khata No. 155 of Plot No. 3115 along with a Kacha house as per the Schedule in the plaint itself. The plaintiff's case was that the land was sold to her by her father by two registered sale deeds. The same was contested by the petitioner-defendants and the suit was decreed. An appeal was preferred being Title Appeal No. 25 of 1991 by the petitioners as appellants. In the appeal, the opposite party as respondent filed a petition under Order XLI, Rule 27 of the Code of Civil Procedure for admitting the judgment and decree of an earlier suit being Partition suit No. 126/43 of 1969-74 filed by the plaintiff and a writ for delivery of possession and also the orders passed in the execution case regarding the delivery of possession. The petition was preferred for additional evidence in admitting those documents under Order XLI, Rule 27 of the Code of Civil Procedure. That prayer was objected to from the side of the petitioners-appellants. After hearing both the parties, the learned court passed the impugned order admitting the prayer for additional evidence on payment of cost of Rs. 200/-. The judgments in the earlier partition suit both in the original suit and in the appellate court were admitted being public documents and writ for delivery of possession was asked to be brought in evidence by adducing oral evidence, hence this revision petition.
3. Mr. Debi Prasad, learned Counsel appearing for and on behalf of the petitioners submitted that such sort of allowance of additional evidence at the belated stage is against the law and all norms. There is nothing to show that such documents were not available to the opposite party when the trial of the case was going on and there was no pleading regarding those documents in the plaint itself. In support of his contention, he has referred to a decision of the Supreme Court in the case of Koyappathodi M. Ayisha Umma v. State of Kerla : [1991]3SCR548 and in the case of Syed and Co. and Ors. v. State of Jammu & Kashmir and Ors. 1995 Supp (4) Supreme Court Cases 422.
4. Here the facts are required to be reiterated for the purpose of appreciation of the matter in dispute. The plaintiff-opposite party filed the previous partition suit for getting allotment of her share separated. In that suit, she had excluded the present suit land and there was objection to that effect in the previous suit and it was observed in that judgment that as the present suit land did not remain joint due to sell to the plaintiff by her father, the suit for partition was not bad in non-inclusion of the present suit land in that partition suit and for that observation being made in the above partition suit, the judgment was attempted to be admitted in evidence. Her connection in the petition for adducing additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure was that she is a Paradhashin Lady and her husband was looking after all her affairs including the litigations and these judgments were not in her possession and after her husband's death, those were misplaced and as such could not be brought at the time of trial of the suit and hence an attempt has been made to bring those documents on record by way of additional evidence.
5. Mr. N. K. Prasad, learned Counsel appearing for and on behalf of the opposite party submitted that the question of inclusion of such facts in the present plaint was not at all necessary as this is only a matter of supporting evidence regarding the claim of the opposite party as plaintiff that the suit property was purchased by her from her father and that such averment in the plaint of the opposite party gets support from the fact that the matter was raised before the court in the earlier suit and an observation was made by the court in the earlier suit that this property is not a joint property to be included within the partition suit. The rulings submitted by Mr. Debi Prasad are not applicable in the present case because the evidence is not required to be included within the pleadings. The plaintiff has already exhibited her sale deeds and in support of her claim, she wants to rely on public documents i.e. the judgments in the earlier suit and the causes have also been shown by her as to why those documents could not be produced at the time of trial. After considering the fact in issue, the learned court below has allowed the same by the impugned order. But on going throughout he impugned order, I find that the writ of delivery of possession in the earlier partition suit is not related to the matter in issue in the present suit and hence those might not be allowed to be brought in evidence by way of additional evidence as contemplated under Order XLI Rule 27 of the Code of Civil Procedure, but the public document i.e. the judgment wherein such observations were made has rightly been allowed to be brought on record by way of additional evidence by the learned court below and what ever lacuna were there on the part of the plaintiff, cost has been awarded to compensate the same. If such evidence is brought oil record, the appellants-petitioners would get a chance to rebut the same and such chance should be given to the petitioners-appellants.
6. This civil revision application is disposed of with the observations and directions aforementioned but in the circumstances of the case, there will be no order as to costs.