Sunday, 14 August 2016

Whether Court can give opinion regarding physical disability of witness without any assistance of scientific report?

 Admittedly, plaintiff No.1, who claims to be the son of
Dubraj through his first wife, has not come to the witness box to
testify his pleadings. As revealed from the impugned judgment, he 
was present in Court and the Court on examination found him to be
hard of hearing and thus incompetent to lead evidence. DWs. 2 and
3 have also deposed that the plaintiff No.1 is little hard of hearing
though not totally deaf. No material is available on record to show
that he was sent for any scientific examination to reach at a
conclusion that he was deaf. The Court is not competent to opine
with regard to the physical disability of a witness without any
assistance of scientific report, more particularly when the witnesses
of the defendants deposed that he was little hard of hearing and not
totally deaf. It further reveals from the impugned judgment that
learned counsel for the defendants raised such an objection and
submitted that the gesture, posture and demeanor of the witness
was only intended to avoid cross-examination by the defendants.
Admittedly, there is no document available on record to show that
the plaintiff No.1 was totally deaf and is not competent to lead
evidence. It is also not the case of the plaintiffs that the plaintiff No.1
was completely deaf and was not able to adduce any evidence nor
any documentary evidence was produced to the effect. The opinion of
the trial Court looking at the demeanor of the plaintiff No.1 was
preliminary one and is not conclusive. The plaintiff No.1 is a vital
witness to testify his relationship with Dubraj as plaintiff No.2 is not
competent enough to lead evidence to that effect. Admittedly, the
plaintiff No.2 has no personal knowledge about the relationship of
plaintiff No.1, if any, with Dubraj. Thus, the learned trial Court
ought not have dealt with such an important issue so lightly in
absence of any scientific report to the effect that the plaintiff No.1
was completely deaf. Thus, this Court draws an adverse inference
against the plaintiffs under Section 114 of the Evidence Act, 1872 for
non-examination of plaintiff No.1.
HIGH COURT OF ORISSA: CUTTACK
 F.A. NO. 174 OF 1988

Hema Majhi (dead) represented
by LRs and others 

 -VersusDubraj
Majhi …
 Date of Judgment: 20.04.2016

P R E S E N T:
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)477 Orissa

 K.R. Mohapatra, J. The unsuccessful defendants in T.S. No. 3 of 1984
have filed this appeal assailing the judgment and decree dated
30.4.1988 and 13.05.1988 passed by learned Sub-ordinate Judge,
Rairangpur.
2. The suit was filed for decree of partition in respect of
schedule ‘A’ land. The case of the plaintiffs as revealed from the
plaint is that plaintiff No.1, namely, Kala @ Nuna Majhi is the son of 2
late Dubraj Majhi through his first wife, namely, Basi. Plaintiff No.2
is the son of plaintiff No.1. Defendant Nos. 1 and 2 are the sons of
said Dubraj Majhi through his second wife, namely, Kapura.
Defendant No. 3 is the widow of late Laxman Majhi, one of the sons
of late Dubraj Majhi through his second wife. Laxman Majhi died in
the year 1980 leaving behind defendant No. 3 and daughter namely,
Kapura. One Hema Majhi was the common ancestor of the plaintiffs
and defendants. The suit land was recorded in his name in the 1927
Settlement. On the death of Hema Majhi, plaintiffs inherited and
possessed the suit land. After the death of Hema, the plaintiffs,
defendants 1 and 2 and the husband of defendant No.3 possessed
Schedule-‘A’ land according to their convenience with an
understanding that they would record partition of the suit land
during Settlement operation. Schedule-‘C’ property was exclusively
recorded in the name of plaintiff No.1, which was purchased by the
mother of the plaintiff No.1, namely, Basi from her Stridhan, which
she acquired by working at the tea garden in Assam. Thus,
Schedule-‘C’ land is not the joint family property. The Settlement
operation commenced in the Sub-Division in the year 1981and thus,
as per their understanding, the plaintiffs in the month of Magha,
1982 requested defendants 1 and 2 for a partition of the suit land.
But they did not pay any heed to it. In May, 1983, defendants 1 and
2 tried to dispossess the plaintiffs out of the suit land for which a
proceeding under Section 107, Cr.P.C. was initiated by the local 3
Police and a proceeding under Section 145, Cr.P.C. was also filed in
the Court of Sub-Divisional Magistrate, Rairangpur. In the said
proceeding, the defendant No.1 filed his written statement disputing
the status of the plaintiff No.1. He alleged that the plaintiff No.1 is a
stranger to the family having no right, title or interest over the suit
property. He is not the son of Dubraj Majhi. In view of the above, the
plaintiffs had no other option but to file the suit.
3. The defendants filed their written statement jointly
denying the averments made in the plaint and also challenged the
maintainability of the suit at the instance of the plaintiffs. They
contended that the plaintiffs neither have any locus standi nor any
cause of action to file the suit. They also challenged the
maintainability of the suit on several other grounds. It is the case of
the defendants that one Dhama Majhi, son of Bishu Majhi of village
Kudahansa, was working at tea garden in Assam. During his stay in
Assam, he married to one Pungi Majhi. The mother of the plaintiff
No.1, namely, Basi was the sister of said Pungi. Basi was also
working at the tea garden in Assam. Her husband was a man of
Assam. Due to disturbance in between the Management and the
workers of the tea garden said Dhama Majhi came back to his native
place with his wife. By that time, the husband of Basi was dead. So
she also accompanied said Dhama with the plaintiff No.1. They
stayed at the house of said Dhama Majhi. Basi used to earn her
livelihood by doing household works of different persons in the 4
village. Subsequently, she constructed a house in the village on the
land of one Sitaram Majhi, who was also related to said Dhama.
Defendants admitted the ‘C’ schedule land to be the self-acquired
property of Basi. Thus, said Basi, the mother of plaintiff No.1, was
not the wife of Dubraj. Neither the plaintiff No.1 nor the plaintiff No.2
was related to said Dubraj or his family. They have never stayed in
the house of the defendants. They are completely strangers to the
family. Defendants also filed additional written statement contending
that Sitaram Majhi acquired some land at Kinjirminjir of Singbhum
district in Jharkhand State and resided there. Thus, he left house
and homestead in the charge of Dhama Majhi. Dhama Majhi allowed
the mother of plaintiff-1, Basi to stay on the said land by
constructing a house thereon. They contended that the plaintiffs are
neither related to their father, namely, Dubraj nor they have any
right, title or interest over the suit land. Thus, they prayed for
dismissal of the suit.
4. Taking into consideration the rival pleadings of the
parties, learned Civil Judge framed as many as seven issued, which
are as follows:-
1. Is the suit maintainable?
2. Has the plaintiffs any cause of action?
3. Is the suit barred by limitation and adverse
possession?
4. Is the suit barred by estoppel, waiver and
acquiescence?5
5. Is the plaintiff No.1 son of Dubraj Majhi
through his first wife?
6. Whether Dubraj Majhi, the father of
defendant No.1 had acquired any land in
his life time?
7. Have the plaintiffs any right, title and
interest in the suit land and what relief(s)
the plaintiffs are entitled to?
5. In order to substantiate their respective case, the
plaintiffs examined as many as five witnesses including plaintiff No.2
as PW-5. Plaintiff No.1 has not been examined in this case. The
plaintiffs relied upon Exts. 1 to 8 in support of their case, including
Exts. 6, 7 and 8, i.e., the voter list of 1973, 1980 and 1983, which
were introduced at the stage of argument of the suit. On the other
hand, the defendants examined seven witnesses including defendant
No.2 as DW-7. They relied upon Exts. ‘A’ to ‘F’ in support of their
case. Learned Civil Judge taking into consideration the pleadings
and materials on record decreed the suit preliminarily allotting 1/4th
share out of the Schedule-‘A’ land to the plaintiffs so also 1/4th
shares to each of the defendants. The defendants being deeply
aggrieved by the said judgment and decree have preferred this
appeal.
6. During pendency of the appeal, the respondent No.1
(plaintiff No.1 in the suit) died and his name was deleted by order
dated 25.10.1990. Though the plaintiff No.2 (respondent No.2 herein)
entered appearance through his Advocate none appeared for him at 6
the time of hearing. Mr.Avijit Pal, learned counsel for the appellants
assailing the judgment and decree of the trial Court made
submissions as follows:-
(i) The plaintiff No.1, who was competent to say about
his relationship with Dubraj did not come to the
witness box, hence, adverse inference should be
drawn against him;
(ii) Exts. 6, 7 and 8 should not have been admitted
into evidence at the stage of argument without
following the procedure laid down in Order 13 Rule-
1(2) CPC and Sections 67 and 68 of the Indian
Evidence Act, 1872;
(iii) Learned Court below has not dealt with Ext. ‘A’
series, rent receipts in its proper perspective to
prove cultivating possession of the defendants over
the suit land;
7. It is the case of the plaintiffs that the plaintiff No.1 is the
son of Dubraj Majhi through his first wife, namely, Basi and
defendants 1 and 2 as well as the husband of defendant No.3 are the
sons of said Dubraj through his second wife, namely, Kapura. Thus,
Issue No.5 is the vital issue in the suit for determination in this
appeal.
8. Admittedly, plaintiff No.1, who claims to be the son of
Dubraj through his first wife, has not come to the witness box to
testify his pleadings. As revealed from the impugned judgment, he 
was present in Court and the Court on examination found him to be
hard of hearing and thus incompetent to lead evidence. DWs. 2 and
3 have also deposed that the plaintiff No.1 is little hard of hearing
though not totally deaf. No material is available on record to show
that he was sent for any scientific examination to reach at a
conclusion that he was deaf. The Court is not competent to opine
with regard to the physical disability of a witness without any
assistance of scientific report, more particularly when the witnesses
of the defendants deposed that he was little hard of hearing and not
totally deaf. It further reveals from the impugned judgment that
learned counsel for the defendants raised such an objection and
submitted that the gesture, posture and demeanor of the witness
was only intended to avoid cross-examination by the defendants.
Admittedly, there is no document available on record to show that
the plaintiff No.1 was totally deaf and is not competent to lead
evidence. It is also not the case of the plaintiffs that the plaintiff No.1
was completely deaf and was not able to adduce any evidence nor
any documentary evidence was produced to the effect. The opinion of
the trial Court looking at the demeanor of the plaintiff No.1 was
preliminary one and is not conclusive. The plaintiff No.1 is a vital
witness to testify his relationship with Dubraj as plaintiff No.2 is not
competent enough to lead evidence to that effect. Admittedly, the
plaintiff No.2 has no personal knowledge about the relationship of
plaintiff No.1, if any, with Dubraj. Thus, the learned trial Court
ought not have dealt with such an important issue so lightly in
absence of any scientific report to the effect that the plaintiff No.1
was completely deaf. Thus, this Court draws an adverse inference
against the plaintiffs under Section 114 of the Evidence Act, 1872 for
non-examination of plaintiff No.1.
9. Learned trial Court discussing the materials on evidence
categorically found that the testimony of PWs 1 to 4 do not satisfy
the test required under Section 50 of the Indian Evidence Act. It has
also been held by the learned trial Court that the plaintiffs have
totally failed to prove the relationship of Nuna (plaintiff No. 1) with
Dubraj through the testimony of PWs- 1 to 4. Further, on scrutiny of
evidence of PW-5, the plaintiff No.2, it appears that he was aged
about 26 years at the time when he deposed in the Court. He has
also no direct knowledge about the relationship of Nuna with Dubraj.
He categorically deposed that he heard from his parents and from
the co-villagers that Dubraj was his father’s father and Hema was
his great grandfather. He also deposed that he calls defendant Nos. 1
and 2 as ‘Kaka’ as they are his father’s brothers. It is his deposition
that he had neither seen Dubraj nor Hema. His oral testimony is
conspicuously silent about relationship of Basi Majhi with Dubraj
Majhi, except a solitary statement that his father was Dubraj’s son
through his first wife. Thus, the vital relationship of Dubraj Majhi
and plaintiff No.1 through Basi Majhi is not established. Learned
trial Court in order to establish such relationship heavily relied upon 9
Exts. 6, 7 and 8, which was brought on record at the stage of
argument of the suit. Admissibility of those documents will be
discussed later on. Further, learned trial Court relied upon the ROR
(Ext.3) of mouza-Kudahansa recorded in the name of Nuna Majhi
and Ext. 5, the sale deed dated 21.6.1935. Exhibit 3 describes Nuna
Majhi as the son of Dubraj Majhi. However, that by itself does not
establish the relationship of the plaintiff No.1 with Dubraj Majhi. It
is more so, when the defendants alleged that Basi married to one
Dubraj of Assam where she was working in the tea garden and came
back to the village with Dhama Majhi, who is Basi’s sister’s (Pungi’s)
husband. The P.W. 5 does not deny said fact in his deposition. Thus,
it not safe to rely upon the solitary evidence of P.W. 5 to come to a
conclusion that plaintiff No.1 was the son of Dubraj Majhi through
Basi Majhi, his alleged first wife.
10. Exhibit Nos. 6, 7 and 8 are the certified copies of voter
list of village-Kudahansa of the year 1973, 1980 and 1983
respectively. Those were admitted into evidence and marked as
exhibits at the stage of the argument. Thus, defendants had no
opportunity to adduce any rebuttal evidence to the same or crossexamine
the witnesses of the plaintiffs in that regard. Exhibits 6, 7
and 8 are public documents and admissible in evidence. But that by
itself does not prove the entries made in it. Onus is on the plaintiffs
to prove the entries made in Exhibits 6, 7 and 8. The Court has
discretion under Order 13 Rule 1 C.P.C. to accept any document 10
produced belatedly if good cause is shown to its satisfaction. This
Court in the case of Bhikari Charan Patra vs Basanti Bewa And
Ors., reported in AIR 1985 Ori 49 held as under:-
11. Whereas the object of Order 13, Rule 1 is
to lay down the stage when a party shall file
documentary evidence so that each knows on
what document the other seeks to rely and gets
ready for the trial, Order 13, Rule 2 makes
provision for meeting certain contingencies. The
object of the rules is not to penalize the party
but to secure a fair trial of the case, Where
Order 13, Rule 2 is invoked mala fide, where the
move is to cause delay or is vexatious, the cause
shown cannot be held to be good cause shown to
the satisfaction of the Court. The doors of the
discretionary jurisdiction should be closed.
Where, however, the document is vital and
would assist the Court in coming to a decision,
the doors should not be shut out.”
Where however, documentary evidence is sought to be introduced,
the Court has duty to scrutinize the cause shown by the party
seeking introduction of documentary evidence before exercising the
discretion and also to give opportunity to the adversary to explain
the documents so produced by adducing rebuttal evidence. This view
gets support from decisions of this Court in the case of Keshaba
Padhan alias Sukru and others Vs. Mst. Padma Padhani
(having died) Upasi Gurandi and others, reported in 1976 (1)
CWR 154 and Property Association of Baptist Churches Private
Limited and another Vs. State of Orissa and others, reported in
1984 (I) OLR 166.11
In the instant cases, no good reason has been assigned
by learned trial Court to accept Exts. 6, 7 and 8 at the stage of
argument of the suit. it is also not clear as to whether any prayer for
seeking leave of the Court was made to adduce further documentary
evidence at a belated stage. In addition to it, neither any opportunity
was given to the defendant to cross-examine the plaintiffs on Exts. 6,
7 and 8 nor they were allowed to adduce rebuttal evidence on the
same.
Further, the entries in Exts. 6, 7, and 8 does not by
itself conclusively prove that plaintiff No.1 was the son of Dubraj
through his first wife. Learned Civil Judge has not made any
endeavour to find out as to whether Basi has ever married to Dubraj.
There is also no reliable evidence available on record to come to such
conclusion. When the relationship of Basi and Dubraj is not proved,
the plea that plaintiff No.1 was the son of Dubraj through Basi
cannot be accepted. In that view of the matter, the answer to Issue
No.5 is erroneous and cannot be accepted.
11. Thus, Issue No.5 is answered against plaintiffsrespondents.
In view of the discussion made above, it is held that
plaintiffs have no right, title and interest over the suit land and they
are not entitled to any relief, so also the plaintiffs have no cause of
action to bring the suit and the suit is not maintainable. The Issue
Nos.1, 2, and 7 are answered accordingly. Issue No.4 was not
pressed in the suit. In view of my answer on Issue Nos.1 and 2, Issue 12
Nos.3 and 6 need no discussion. Accordingly, the impugned
judgment and decree are set aside. The appeal is allowed, but in the
circumstances no order as to costs.
 ………………………….
 K.R. Mohapatra, J.
 Orissa High Court, Cuttack
 Dated the 20th April, 2016/ss/bct
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