IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7395 of 2010 Manchala Devi W/O Sri Brij Bilas Rai R/O- Village + P.O. Diyaman, P.S.- Simri, Distt.- Buxar Versus The State Of Bihar Through The Collector Of Buxar At P.O. & P.S.- Buxar ----------- 2 13.10.2011 Heard Mr. Pushkar Narayan Shahi, learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 12.01.2010 passed by the learned Additional District Judge-cum-Fast Track Court No.1, Buxar in Title Appeal No. 19 of 2008 whereby the petition filed on behalf of the petitioner under Order 41 Rule 27(1)(aa) read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) requesting the appellate Court to take on record the order dated 24.02.1998 passed by the Superintendent of Survey, Bhojpur at Ara-cum- Settlement Officer, Bhojpur at Ara in Case No. 1278 of 1990 by way of additional evidence, has been rejected. The facts of the case in brief is that the petitioner had filed a Title Suit bearing T.S.No. 25 of 2001 seeking a declaration for correction of entries made in the survey khatiyan of 1989 in so far as it related to Plot No. 909 Khata No. 385 Ward No. 4 under Dumraon Municipality which according to the petitioner mentioned as ‘Anabad Bihar Sarkar’. It is the case of the petitioner that one Triveni Rai had executed a registered Will in her favour as back as on 05.04.1969 and in respect whereof, probate was granted by the 1st Additional District Judge, Buxar on 07.06.1993. It is further her case that the portion of land which 2 devolved on the petitioner pursuant to the registered Will aforesaid was also subject matter of Title (Partition) Suit No. 140 of 1992 and which ended in a compromise under order dated 20.03.1993 and whereafter the petitioner got exclusive right, title and possession over the suit land. The petitioner upon gathering knowledge of the incorrect survey entry in the Khatiyan of 1989 mentioning the said land as ‘Anabad Bihar Sarkar’ filed an objection before the Superintendent of Survey, Bhojpur giving rise to case No. 1278 of 1990 and upon getting no information regarding its outcome, filed a title suit giving rise to Title Suit No. 25 of 2001 and which was dismissed by a judgment and decree dated 26.04.2008 by the learned Civil Judge, Senior Division-II, Buxar inter alia on grounds of limitation in the light of the circumstances that the survey entry was made as back as in the year 1989 whereas the suit was filed in 2001. The Civil Judge, Senior Division-II, Buxar also held that as the petitioner had knowledge about the incorrect entry in survey khatiyan of 1989 at the stage of the proceedings in Title Suit No. 140 of 1992 in which a compromise had been filed on 17.03.1993 hence the suit subsequently filed for correction of the entry in the survey khatiyan after a lapse of 12 years, was hit by limitation and in that background the suit was dismissed. The petitioner aggrieved by the judgment and decree passed by the trial Court preferred a Title Appeal No. 19 of 2008 which is pending in the Court of the Additional District Judge-cum-Fast Track Court No.1, Buxar. It is at this stage that the petitioner gathered knowledge about the disposal of the case No. 1278 of 1990 vide order passed on 24.02.1998 and whereupon a petition under Order 47 Rule 27(1)(aa) read with Section 151 of the Code was filed on behalf of the petitioner seeking to 3 produce an additional evidence by bringing on record the final order passed in Case No. 1278 of 1990. It was the case of the petitioner that no sooner did she gather knowledge about the incorrect survey entry of 1989 she had instituted a proceeding giving rise to Case No. 1278 of 1990 and which was pending before the Superintendent of Survey. As no final order was being passed, the petitioner chose to file the title suit in question giving rise to Title Suit No. 25 of 2001 and which was dismissed on grounds of limitation on 26.04.2008. It is the contention of the petitioner that the circumstances in which the knowledge was gathered belatedly, was duly explained by the petitioner before the first appellate Court. It was clearly demonstrated that as the Superintendent of Survey was common for four districts namely, Bhojpur, Rohtas, Bhabhua and Buxar, the petitioner could not gather knowledge of the final order passed in the said proceedings nor the same was communicated to her. It was the contention of the petitioner that had the petitioner any knowledge about the final order dated 24.02.1998, the same would have been the subject matter of the Title Suit No. 25 of 2001 which was filed on 31.01.2001 i.e. well within three years of the passing of the order dated 24.02.1998 and the suit could not have been dismissed on the grounds of limitation. It was contended that as the petitioner gathered knowledge of the said document only after dismissal of the suit, the same was sought to be brought on record by way of additional evidence. The prayer of the petitioner having not been accepted hence the writ petition. I have heard learned counsel for the parties and have considered the materials available on record of the proceedings. 4 The prayer of the petitioner for bringing additional evidence on record, had simply been refused by the learned Court below under the impugned order inter alia on grounds of lack of due diligence. The finding of the trial Court is patently erroneous for the reason that suitable explanation had been given by the petitioner for belated discovery of the order dated 24.02.1998 and it is but obvious that had the petitioner any information about the said order dated 24.02.1998, the same itself would have been the subject matter of Title Suit No. 25 of 2001 and which could not have been dismissed on grounds of limitation Considering the circumstances that the Title Suit No. 25 of 2001 had been filed by the petitioner well within the period of three years of the passing of the order dated 24.02.1998, the learned court below ought to have considered the request of the petitioner for bringing on record the said order dated 24.02.1998 by way of additional evidence as the very availability of that order on the record the proceedings is sufficient for consideration of the title suit of the petitioner on its merits. For the reasons aforesaid, the order dated 12.01.2010 passed in Title Appeal No. 19 of 2008 passed by the Additional District Judge-cum- Fast Track Court No.1, Buxar is set aside and the learned Court below is directed to take on record the order dated 24.02.1998 passed in Case No. 1278 of 1990 by way of additional evidence and proceed in accordance with law. The writ petition is allowed. Bibhash (Jyoti Saran, J.)