IMPORTANT POINT
Evidence given by witness in judicial proceeding or before other person authorized by law to take it, relevant for purpose of proving in subsequent judicial proceeding or in later stage of said judicial proceeding.

A.K. Goswami, J.—By this application under Article 227 of the Constitution of India, the petitioner calls into question the order dated 29.9.2011, passed by the learned Munsiff No. 1, Nagaon in Title Suit No. 86/1998 as well as the order dated 24.8.2001, passed by the Munisff No. 1, Nagaon in Misc (J) Case No. 46/1998, registered on a petition under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. for injunction.

2. Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioner. Also heard Mr. A. Sarma, learned Counsel for the opposite party.

3. Before proceeding further, at the outset, it will be appropriate to briefly notice the purport of the orders impugned. By the order dated 29.9.2011, the learned Trial Court allowed an application filed by the defendant No. 1, under section 33 of the Indian Evidence Act read with section 151, C.P.C., for accepting the evidence tendered by Late Rajibun Nessa, who was the mother of both the plaintiff and the defendant No. 1, by holding that such evidence would be taken into consideration at the time of appreciation of evidence.

4. Order dated 24.8.200 I is an order by which the learned Trial Court directed that report of the Commissioner appointed for examination of a witness be kept with the case record. The Commissioner was appointed for examination of Rajibun Nessa on a petition filed by the defendant No. 1 under Order XXVI, Rule 1, C.P.C. in Misc (J) Case No. 46/1998.

5. The petitioner, as plaintiff, had filed a suit for declaration of right, title, interest and confirmation of Schedule ‘A’ land, measuring 1 Katha 7½ Lechas and for permanent injunction restraining the defendant’ her agents, etc. from entering into the suit land and from dispossessing him. The respondent herein was arrayed as defendant No.1. Rajibun Nessa was arrayed as proforma defendant No.2. The pleaded case of the plaintiff was that Rajibun Nessa, who had right, title and interest over 3 Kathas 11 Lechas land covered by Dag No. 690/691 of Periodic Patta No. 503 of Nagaon Town Kissam, out of rove and affection, orally gifted 1 Katha 7½ Lechas of land on 21.11.1970 out of the said 3 Kathas 11 Lechas, keeping a 5 ft. wide path on the eastern side and delivered possession to him in presence of his family members. The plaintiff had accepted the gift and had taken delivery of possession and constructed a two-storied RCC building in the back portion of the land and had been residing in the said RCC building for long 26 years and had rented out a portion of the house to tenants. On 23.8.1998. defendant No. 1 tried to force into the vacant portion of the suit land alongwith some labourers but her attempt was foiled. She, however, proclaimed that she would take possession of the land by any means. With the aforesaid broad pleading, the suit was filed and the same was registered as Title Suit No. 86/1998 in the Court of the Civil Judge, Junior Division, Nagaon.

6. The defendant No. 1 had filed written statement. In the said written statement, she denied making of the oral gift by the mother and delivery of possession to the plaintiff. It was pleaded that the two-storied RCC building was constructed by their mother. She stated that the suit patta contained three dags, namely, 690, 691 and 1589 containing an area of 2 Kathas 15 Lechas, 6 Lechas and 10 Lechas, respectively. Land in Dag No. 1589 was disposed of earlier. The pro-forma defendant No.2 gifted 1 Katha, covered by Dag No. 690/691 to her on 18.11.1988 vide registered deed of Hiba-bil-Ewaj No. 1946 and delivered possession of the said land to her and that she was in possession of the said land by erecting boundary fencing; and also by constructing one ek-chali house with CI-sheet roof. The gifted land is in the southern part of the suit land. The said land was mutated in her name. It is also pleaded that the two-storied RCC building constructed by her mother was in contiguous north of the land gifted to the defendant No. 1 and the plaintiff was allowed to li