IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2180 of 2008 JANARDAN PRASAD Versus NARESH PRASAD & ANR ----------- 2. 12.1.2009 Heard counsel for the petitioner. In the opinion of this Court the court below has not committed any error in holding that an issue rightly or wrongly was adjudicated earlier by an order dated 26.9.2003 holding that it was not in the interest of justice to take so called Yadastha Batwara into evidence. This order dated 26.9.2003 was passed on certain premises which may be factually correct or incorrect but then it is a fact that the said order was allowed to become final and the petitioner in stead of approaching the superior courts against the said order had filed an application on 19.2.2004 whereby and whereunder a prayer was made to recall the aforesaid order dated 26.9.2003 and hear the matter again with regard to marking the memorandum of partition (Yadastha Batwara) as an exhibit on behalf of the defendant petitioner. The court below has come out with 2 its reasons in the impugned order which do not appear to be incorrect and as a matter of fact Mr. Bhupendra Narain Sinha, learned counsel for the petitioner, also would agree that whatever error can be found was only in the order dated 26.9.2003, inasmuch as in the earlier application filed on 10.9.2003 when a prayer was made on behalf of the petitioner to call for the original sale deeds as also the Yadastha Batwara from two different persons, namely, Kari Devi and Banwari Sao respectively the consequential order passed by the court directing them to produce both the documents would not have been said to be an erroneous order as has been recorded in the order dated 26.9.2003. This Court, therefore, would find that as a matter of fact three orders are under consideration, namely, the order which was passed on the petition dated 10.9.2003 and thereafter the order dated 26.9.209093 and finally the impugned order dated 19.9.2008. It is not clear to this Court as to whether the ingredients of section 65 of the Evidence Act were really fulfilled by the petitioner for the purposes of getting 3 the documents in question proved by way of secondary evidence. It is also not clear as to whether there was any evidence to show that the Yadastha Batwara was recovered from the possession of Banwari Sao so that such an order could have been passed directing him to produce the original. These all are essentially questions of fact and could be gone into but if the court below finds that there was no such order intended to be passed on the application filed by the petitioner on 10.9.2003 allowing the prayer for calling the original Yadastha Batwara from Banwari sao, it must straightway reject the prayer of the petitioner. It will again reject the prayer of the petitioner if it finds that as a matter of fact prior to filing of the application dated 10.9.2003 there was nothing on record by way of evidence to show that the Yadastha Batwara was recovered from the possession of Banwari Sao so as to direct him to produce the said document. However, if the court below finds that the aforesaid prayer was not obstructed by any of the aforementioned two aspects, it would 4 reconsider the prayer afresh made in Annexure 1, the application dated 10.9.2003. With the aforementioned observation, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/