Phanibhusan Rath vs Sadasiva Dash ' Sadan ' Sada Dash and Others

L. Mohapatra, J.—This writ application is directed against the Order dated 1.9.2005 passed by the Learned Civil Judge (Senior Division), Athagarh in T.S. No. 8 of 1996 rejecting an application filed by Defendant No. 1 u/s 154 of the Evidence Act praying to allow the said Defendant to put leading questions to D.W.4 in form of cross-examination.

The suit has been filed for declaration that the sale deed bearing Nos. 504 and 505 dated 13.2.1995 executed by Opposite Parties 5 and 6 in favour of the Petitioner is illegal, void and inoperative and also for permanent injunction restraining the present Petitioner from coming upon the suit properties described in Scheduled and 2, in the alternative to permit Plaintiff Nos. 1 to 4 to exercise their right of pre-emption as preferential heirs to purchase the shares of Opposite Parties 5 and 6 described in Schedule-1 and 2 u/s 22 of the Hindu Succession Act.

The Petitioner who is Defendant No. 1 filed the written statement stating therein that he is in possession of the suit schedule land from 22.6.1977 under Bhag Pattas issued by Opposite Parties 5 and 6 in respect of their shares which they have got under amicable family settlement deed dated 21.06.1977. Thereafter, he had purchased the suit land under two registered sale deeds which are subject matter of the suit. It is also the case of the Defendant No. 1-Petitioner that after purchase of the suit land, R.O.R. had been corrected in favour of the Petitioner in Mutation Case Nos. 536 and 537 of 1996. According to the Defendant No. 1-Petitioner, he is the absolute owner of the property having right, title, interest and possession thereof. Apart from above, several other Statements were made in the written statement which are not necessary for the purpose of this case.

D.W.4 who is sought to be put leading questions in cross-examination by Defendant No. 1 is Defendant No. 3 in the suit. Defendant Nos. 2 and 3 filed a joint written statement opposing the prayer in the suit. According to the said Defendants, in paragraph-5 of their written statement the joint family status had been severed prior to 1977 and the Plaintiff as well as Defendants 2,3, 5 and late Brahmananda Dash were living separately much prior to 1977. It is also admitted by the said Defendants that on 21.6.1977 there was division of some of the family properties and the Plaintiff taking advantage of minority of Defendants 2 and 5 as well as absence of Defendant No. 3 and Brahmananda Dash disposed of 65 acres of land out of the joint family properties in collusion with this widow mother and the mother of Defendants 1,2,3,5,6 and 7: It is also the case of the Defendants 2 and 3 that the document of division of properties dated 21.6.1977 is not a mutual family settlement deed and there was no division of all the family properties by metes and bounds on 21.6.1977. The division of properties made on 21.6.1977 was a forged document of Plaintiff No. 1 who forced the Defendants 2, 3 and 5 to sign the document. In paragraph-13 of the written statement it is stated that the land marked as ''A'' in the sketch map of Schedule-3 of the plaint had been allotted to the share of Defendant No. 2 and the said land was given by Defendant No. 2 to Defendant No. 1 to cultivate as a tenant. Since Defendant No. 2 was a service holder and disable person and Defendant No. 1 used to pay - Bhag dues, Defendant No. 2 sold his share to Defendant No. 1 under registered sale deed No. 504 dated 13.2.1995 in favour of Defendant No. 1. In paragraph 17 of the written statement it is also stated that under another registered sale deed No. 505 dated 13.2.1995 Defendant No. 2 sold the properties therein to Defendant No. 1.

Defendant No. 3 was examined as D.W.4 on behalf of the Defendant No. 1. In course of examination in Court he had admitted to have sold the land to the Defendant No. 1. However, in cross-examination he stated that he cannot say details of the written statement filed by him and he had not gone through the contents of the written statement. He cannot say the location of the land sold as well as the names of the adjacent land owners. He further stated in cross-examination that he did not know as to why the sale deed had been executed at Cuttack instead of Athagarh where the land is located and no sketch map was appended to the said sale deed marked as Ext. L. Because of his such statement made in the cross-examination, a petition was filed by the Defendant No. 1 Petitioner to put leading questions to him in form of cross-examination. The Trial Court rejected the petition solely on the ground that if such application is allowed, there would be no end to the proceeding and the case cannot be completed within the time fixed by this Court in Civil Revision No. 48 of 1998. In the impugned order, he has discussed the contentions of the Learned Counsel for both the parties, but declined to dispose of the application on merit and rejected the same solely on the ground that if the petition is allowed, the case cannot be disposed of within the time fixed by this Court.

The Learned Counsel for the Petitioner submitted that Defendant No. 3 had filed written statement supporting the written statement filed by Defendant No. 1-Petitioner. For the above reasons, Defendant No. 3 was examined on behalf of Defendant No. 1 as D.W.4. In view of the statement made in the cross-examination by D.W.4, the entire case of the Defendant No. 1 got demolished and therefore the application u/s 154 of the Evidence Act should have been allowed permitting the Defendant No. 1 to put leading questions to D.W.4 in form of cross-examination. The Learned Counsel for the Petitioner relied upon a decision of this Court in the case of Sunakar Gochhayat and Others Vs. Dhaneswar Barik and Others, . The Learned Counsel for the Opposite Parties, on the other hand, submitted that if the truth has been brought out in cross-examination, even if it goes contrary what has been stated in the written statement by the said witness, the witness should not be allowed to be cross-examined again by the Defendant No. 1 to fill up all the lacunas.

The Trial Court having not decided the petition on merit though discussed in detail, this Court could have remitted the matter back to the Trial Court for reconsideration. However, this writ application is pending since 2005 and further proceeding of the suit has been stayed. I am of the view that it is better to decide the issue in this writ application instead of remitting it back for re-consideration to the Trial Court. In the decision referred to above by the Learned Counsel for the Petitioner, considering the facts involved therein, the Court was of the view that the witness has turned hostile having tried to injure the party''s case by making prevaricating statements and suppressing the truth and accordingly allowed the application. The question as to whether a particular witness is to be recalled for cross-examination being declared hostile depends on facts of each case and considering the stand taken in the written statement and the deposition of the witness the Court in the aforesaid decision was of the view that the witness should have been declared hostile and should have been permitted to be cross-examined by the party for whom he was being examined in Court. So far as present case is concerned, the basic claim of Defendant No. 1 is that he had purchased the suit properties from Defendants 2 and 3 is not denied by D.W.4. Statement of Defendant No. 3 in his cross-examination that he had not read the written statement will not be enough to permit Defendant No. 1 to put leading questions to the said witness. On reading of the entire cross-examination, I do not find anything, which may demolish the Defendant No. 1-petitioner''s case entirely specifically when title of Defendant No. 1 is not disputed. I am, therefore, of the view that there is no necessity to cross-examine D.W.4 again by putting leading questions to him by Defendant No. 1.

I accordingly do not find any merit in the- writ application and the same is dismissed.