2025:JHHC:19375 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 118 of 2023 Suman Devi, aged about 49 years, wife of Vijay Shankar Prasad, resident of Gandhi Road, Dhanbad, P.O. Dhanbad, P.S. Dhansar, District - Dhanbad … … Plaintiff/Appellant Versus Dharamraj Yadav, son of late Lakshman Yadav, Gandhi Road, Dhanbad, P.O. Dhanbad, P.S. Dhansar, District – Dhanbad … … Defendant/Respondent --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Parambir Singh Bajaj, Advocate For the Respondent : None --- 21/16.07.2025 The learned counsel for the appellant is present. 2. In spite of repeated opportunities, nobody has entered appearance on behalf of the respondent. 3. This first appeal has been filed against the judgement dated 25.04.2023 (decree signed on 01.05.2023) passed by learned Civil Judge (Senior Division) V, Dhanbad in Original Suit No.192 of 2020 whereby the suit seeking partition of Schedule A property of the plaint has been dismissed. 4. The Schedule A of the plaint is quoted as under: “At that piece and parcel of Raiyati land situated within the District Dhanbad, Sub-registry office at Dhanbad, P.S. Dhansar, Mouza Dhanbad (Mouza No.51), appertains to Khata Nos.61 & 80, Plot Nos.1030, 1034, 1035, 1036 & 1037 measuring area 15.42 decimal or to say 9 kathas 5 – ½ Chhatak consisting of four rooms, godown (store room) etc. butted and bounded by; North : House of P.N. Gutgutia, South : Part of Plot Nos.1030, 1034, 1036 & 1037 East : Telephone Exchange Road, West : Railway Land.” 5. The suit proceeded ex parte on account of non-appearance of the sole defendant. As per the plaint, the suit was filed for partition by metes and bound of the Schedule A property which was purchased by 2025:JHHC:19375 2 the plaintiff and the defendant vide registered Sale Deed No.6594 dated 09.05.2011 followed by Deed of Rectification No.9418 dated 01.07.2011. It is the case of the plaintiff that both the plaintiff and defendant entered in peaceful joint possession thereof. The total purchased area was 15.42 decimals which was equivalent to 9 kathas 5-½ chattak, the share of the plaintiff was 7 kathas and that of defendant was 2 katha 5.5 chattak and the respective share of the parties was reflected from the sale deed itself. 6. It was further case of the plaintiff that the parties got their name mutated in Mutation Case No.360 (iii) / 2016-2017 in their joint name and they were jointly paying the land revenue to the State under Jamabandi No.5259 and obtained receipts thereof. It was his further case that both the parties jointly got some repair/reconstruction work over the Schedule A property and constructed a godown and let out the same to different tenants, who have been paying monthly rent. 7. While giving the background of the suit property, it was the case of the plaintiff that previously Rameshwar Rao Gwala @ Rameshwar Yadav and others got the Schedule A property by virtue of compromise decree passed in Title Suit No.6 of 1966 and was in peaceful possession thereof; the legal heirs and successors of Rameshwar Roy Gwala @ Rameshwar Yadav and others sold and transferred the aforesaid land to the plaintiff and the defendant vide the aforesaid registered sale deed dated 09.05.2011 followed by rectification deed dated 01.07.2011. The sale deed was executed by the constituted attorney of Rameshwar Roy Gwala @ Rameshwar Yadav namely Sri Vijay Shankar Prasad vide general power of attorney no.IV-256 and the plaintiff and the defendant were put in peaceful possession of the same. It was also stated in the plaint that one Birendra Kumar Bhatia had filed one Title Suit No.139 of 2012 against the plaintiff and others claiming a portion of the Schedule A property and the said suit was dismissed vide judgement and decree dated 17.06.2015 against which the appeal was also dismissed being Title Appeal No.83 of 2015 vide judgement and decree dated 27.06.2016. 2025:JHHC:19375 3 8. It was further case of the plaintiff that the plaintiff and the defendant found it inconvenient to remain in joint possession and therefore the plaintiff requested the defendant several times to get the land demarcated by appointment of a survey amin and partition the same in terms of the registered sale deed dated 09.05.2011 but the defendant on one pretext or the other deferred the matter and ultimately the suit was filed. 9. The cause of action as per the plaint arose in the month of January, 2020 when the defendant refused to partition the Schedule A property by metes and bound. The reliefs as prayed for in the suit are as under: “1. A decree for a Preliminary Decree may be passed in favour of the Plaintiff on the basis of Registered Sale Deed No. 6594 dated 09.05.2011 followed with the Deed of Rectification No. 9418 dated 01.07.2011 declaring her share measuring area 7 Katha over the Schedule 'A' property as described herein below. 2. For a decree for appointment of a Survey Knowing Pleader Commissioner for scientific measurement of the Schedule 'A' property curving out the Plaintiff's share i.e. measuring area 07 Katha over the same in the light of the Preliminary Decree, and accordingly a separate allotment chart may be prepared in the name of the Plaintiff. 3. For a decree for all costs of the suit. 4. For a decree for any other relief or reliefs to which the plaintiff is entitled under the law and equity.” 10. As per the records available and also recorded in the impugned judgement, the court issues summons to the defendant but the defendant did not appear despite service of summon which was received by his own brother and thereafter the notice was also served through substituted service by newspaper publication and ultimately vide order dated 04.11.2022, the case proceeded ex parte against the defendant. The learned trial court framed the following issues for consideration: 2025:JHHC:19375 4 “1. Whether the suit is maintainable in its present form? 2. Whether the plaintiff has got valid cause of action for the present suit? 3. Whether the plaintiff is entitled for a decree of declaration of 7 Katha share in the suit property as prayed which is purchased by the plaintiff through Sale Deed Exhibit 1 followed by Rectification Deed Exhibit-1/A through power of attorney holder?” 11. The plaintiff adduced both oral and documentary evidences in support of her case. PW.1 Vijay Shankar Prasad is the husband of the plaintiff and also power of attorney holder with respect to the aforesaid two deeds i.e. sale deed and the rectification deed. P.W. 3 is the plaintiff herself and P.W. 2 is one Kamlesh Shah an independent witness. The following documents were exhibited from the side of the plaintiff: “Exhibit - 1 was the original sale deed no.6594 dated 09.05.2011, whose details have been mentioned in the impugned judgment with regard to the vendor and the purchaser. The said sale deed was executed through the constituted attorney Vijay Shankar Prasad (P.W. 1) Exhibit 1/A is the rectification deed no.9418 dated 01.07.2011 Exhibit 1 and 1/A are the original deeds which were produced before the learned court. Exhibit 2 is the certified copy of the order sheet of mutation case no.360 (iii)/2016-17 of order dated 16.05.2016 and 30.05.2016 and Exhibit 2/A is the certified copy of the correction slip on the basis of the aforesaid mutation case. Exhibit – 3 is the original malgujari receipt dated 03.06.2016 and Exhibit – 4 is the certified copy of the judgement passed in Title Suit No.139 of 2012 dated 17.06.2015. Exhibit – 4/A is the certified copy of the judgement passed in Title Appeal No.83 of 2015 dated 27.06.2016.” 2025:JHHC:19375 5 12. P.W. 1 in his evidence has supported the case and has stated that he knew both the parties and has referred to the disputed land which has been mentioned in Schedule A to the plaint. By referring to Mouza No.51, Khata nos.61 & 80 plot nos. 1030, 1034, 1035, 1036 & 1037, total area 15.42 decimals wherein he stated that 4 rooms and 1 store room have been constructed. He has stated that the plaintiff and the defendant have joint possession over the property. This witness being the power of attorney has referred to two registered power of attorney bearing no.IV-256 dated 08.04.2011 and IV – 261 dated 11.04.2011 whereby this witness was appointed as power of attorney and he has stated that by virtue of the power of attorney, he executed the sale deed no.6594 dated 09.05.2011 and sold 7 kathas in favour of the plaintiff and 2 katha 5.5 chattak in favour of the defendant. He has further stated that on account of such an error in the sale deed dated 11.04.2011 another registered deed of rectification no.9418 dated 01.07.2011 was executed. He has further stated that both the parties ultimately got their name mutated. He has further referred to Title Suit No.139 of 2012 which was filed by Birendra Kumar Bhatia in connection with the portion of the suit property and stated that in the said title suit, both the plaintiff and the defendant had filed their written statement and ultimately the title suit was dismissed vide judgement dated 17.06.2015 and the appeal against the same being Title Appeal No.83 of 2015 was also dismissed vide judgement dated 27.06.2016. He has stated that till date the property continues to be in joint name and possession of the plaintiff and the defendant and there has been no partition and consequently the partition suit was filed. A few questions by the court were put to this witness and during the court questions, he stated that he could not bring the executors of power of attorney for evidence in the court. He has also stated that the plaintiff was his wife and the property was in the name of the plaintiff and the defendant. He has further stated that after giving power of attorney and after execution of sale deed in favour of the plaintiff and the defendant, the executors of power of attorney have finally settled 2025:JHHC:19375 6 at Chapra in a village. He has further stated that one Birendra Kumar Bhatia has been claiming the property. 13. So far as the P.W. 2 is concerned, he has also supported the case of the plaintiff and stated that there has been no partition between the parties. During the court questions, he has stated that the defendant wanted to purchase the portion of the property of the plaintiff for which the plaintiff was not ready and ultimately the case was filed. He has further stated that the property originally belonged to one Sabhapati Yadav and others who sold it in 2008-09 and ultimately left for Chapra. He has further stated that some repair work was done by the plaintiff and the defendant jointly and they have let out the properties on rent and both of them were collecting the rent. 14. So far as P.W. 3 is concerned, she is the plaintiff herself. She has also supported her case and has more or less narrated the same facts as has been narrated by P.W.1. She has exhibited the Sale Deed No.6594 dated 09.05.2011 and also the Rectification Deed No.9418 dated 01.03.2011. She has also exhibited the documents relating to mutation as Exhibits 2 and 2/A and also the rent receipt as Exhibit - 3. The court had put questions to this witness also. She had the occasion to meet Sabha Pati Yadav and other who had sold the property to her at her home and they had come with 12 to 14 persons who were of advanced age and had also stated that they will not be able to come again and again. She has also stated that her husband had gone to Chapra for the purposes of taking power of attorney and thereafter the sale deed was registered at Dhanbad where they did not come. She has also stated that the defendant wanted to purchase her portion of the property which she did not want to sale and she stated that consequently the partition suit was filed. 15. The records reveal that compromise decree which was referred to in the plaint was not exhibited before the court. Further, the two power of attorneys which were referred to in the sale deed and the rectification deed were also not exhibited before the court. However, in the plaint, only one power of attorney was mentioned that was bearing no.IV - 256 dated 08.04.2011 and there was no mention of the 2025:JHHC:19375 7 other power of attorney bearing no. IV 261 dated 11.04.2011. In the evidence of P.W.1 and 3 both the power of attorneys were referred to but not exhibited. 16. The learned trial court recorded that during the course of final argument, the plaintiff was directed to produce two powers of attorney mentioned in the sale deed and the plaintiff had produced both the powers of attorney. The learned trial court referred to the recital of the sale deed and discussed it in detail and noted that in the sale deed khata nos.61 and 86 was mentioned although with respect to khata no.86, it was edited by pen and originally it was mentioned as khata no.80. The learned trial court also observed that in the sale deed, there was a reference of two sale deeds which were Sale Deed No.6352 dated 21.11.1939 and Sale Deed No.6286 dated 15.11.1939 registered at Dhanbad Sub-Registry office, Dhanbad whereby it was mentioned that Girdhari Lal Agarwal had purchased some portion of the land by virtue of the two sale deeds of 1939. 17. The learned trial court observed that the recital in the sale deed was incomplete and it was not mentioned as to which portion of the land was purchased by Girdhari Lal Agarwal. The learned trial court ultimately referred to the other recitals in the sale deed and took serious note of the over writings made in the original sale deed whereby Khata No.80 was converted into Khata No.86 and also observed that there was over writing in mutation case number and khata number at relevant places. It appears that the learned trial court was not satisfied with respect to the title of the plaintiff and the defendant in connection with the suit property although Exhibit - 1 and 1/A being the sale deed and rectification deed were exhibited. In order to clear the cloud, the learned court asked the plaintiff to produce the two powers of attorney which the plaintiff duly produced and the order sheet of the case reveals that it was marked as exhibit on 25.04.2023 as Exhibits I and II. It further appears from the record that the learned court took further steps to clear the cloud and called for the records of Title Suit No.139 of 2012 which was mentioned in the plaint. The learned trial court upon receipt of the record has gone 2025:JHHC:19375 8 through the various documents which were forming part of the case record of Title Suit No.139 of 2012 and marked the following documents as exhibits which were done by the learned trial court vide order dated 25.04.2023: TS No.139/2012 OS No.192/2020 (present suit Document N.A. Exhibit I General Power of Attorney No.IV 256 dated 08.04.2011 N.A. Exhibit II General Power of Attorney No.IV 256 dated 11.04.2011 Exhibit 1/D Produced by plaintiff in suit as well as in appeal Exhibit III Sale Deed No.6352 dated 21.11.1939 Exhibit 1/E Exhibit III/I Sale Deed No.6286 dated 15.11.1939 Exhibit 1/A to 1/C Exhibit IV, IV/2, IV/3 Sale Deed Nos.5058, 5059, and 5060 dated 26.06.1979. Exhibit E/1 Produced by defendants 1 & 2 in suit but not in appeal Exhibit V Final Order of the ld. LRDC dated 27.06.2011 in Mutation Appeal No.26/2010-11 18. All these exercises were done by the learned trial court by exercising power under Section 165 of the Evidence Act. 19. After perusal of the evidences which were produced on behalf of the plaintiff, the learned trial court considered the records of Title Suit No.139 of 2012 which was suo moto called by the learned trial court under Section 165 of the Evidence Act and the learned trial court found mismatch and ultimately dismissed the suit. While dismissing the suit, adverse inference has been drawn against the plaintiff though the proceeding was ex parte. The learned trial court held that the plaintiff was not able to prove the facts stated in Sale Deed Exhibit 1, which was the basis for the claim of partition and/or the title of the vendor, and further observed that a vendor cannot transfer a better title than what he himself possesses. 20. The learned trial court also held that it was disproved that the plaintiff and the defendant have acquired any valid title over the suit 2025:JHHC:19375 9 property by way of sale deed Exhibit 1 which was subject matter of partition. The suit was dismissed. Arguments of the Appellant 21. The learned counsel appearing on behalf of the appellant has submitted that the suit was essentially for partition and the plaintiff had not gone for declaration of title. He has also submitted that in case the court has any doubt or the court is in search of clarity in connection with case of the one of the other parties, the court can certainly exercise power under Section 165 of the Evidence Act, but in the instant case, there has been serious procedural flaw. He has submitted that under the provisions of Section 145 of the Evidence Act if a party is to be controverted with any previous statement and such previous statement is to be used against the party, the same is required to be put to the party concerned. Similarly, if a document which is the part of any other proceeding is to be utilized but not exhibited by one or the other party in the suit and if any adverse inference has to be drawn on the basis of such document, the parties also require to be confronted with such document so that the party may have an opportunity to clarify with regard to one or the other document. 22. The learned counsel has referred to the order sheet of the learned court and has in particular referred to the order dated 25.04.2023 when the court has recorded that the plaintiff was represented through its counsel and the records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 were placed which were earlier called for by the court suo moto. The learned trial court has recorded in order dated 25.04.2023 that the court perused both the records and referred to Exhibit 1/D and 1/E which were certified copy of the sale deed no.6352 dated 21.11.1939 and certified copy of the sale deed no.6286 dated 15.11.1939 which were marked by the court on the same date as Exhibit III and III/I. Similarly, the certified copy of the sale deed nos.5058, 5059, 5060 all dated 26.06.1979 from the records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 which were marked as Exhibit 1/A to 1/C in the said proceedings were 2025:JHHC:19375 10 marked by the court as Exhibits IV/1, IV/2 and IV/3 respectively on the same date i.e. 25.04.2023. Further the court referred to Exhibit E/1 of the aforesaid suit, which was the order passed in Mutation Appeal No.26 of 2010-11 passed by LRDC on 27.06.2011, and the court marked the said document from the other suit as Exhibit V on the same day i.e. 25.04.2023. The learned court further noticed that the certified copy of the two powers of attorney which were produced by the plaintiff upon asking of the court which were dated 08.04.2011 and 11.04.2011 had not been marked and the court on the same day i.e. on 25.04.2023 has marked these two documents as Exhibit I and II by exercising power under Section 165 of the Evidence Act. Later on, on the same day the learned court pronounced the judgement running in 23 pages. 23. The learned counsel has submitted that the records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 were called for on 24.04.2023 and placed before the court on the next day i.e. 25.04.2023 and on the same day all the aforesaid documents from the records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 were marked as exhibits and were used against the plaintiff to pronounce the judgement on the same day. The learned counsel submits that the learned court ought to have confronted the plaintiff with the aforesaid documents so that the plaintiff could have responded to the said documents. He submits that in absence of such confrontation of the plaintiff with the documents which were suo moto exhibited by the learned court from the records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 and used against the plaintiff to dismiss the suit, there has been gross violation of principles of natural justice and such a course could not have been adopted. 24. He submits that numerous adverse inferences have been recorded by the learned court on the basis of the documents which were marked exhibits on 25.04.2023 and practically the registered sale deed in favour of the plaintiff and the defendant pertaining to the property which was subject matter of partition has been cancelled although the plaintiff had not prayed for declaration of title. It was 2025:JHHC:19375 11 simply a suit for partition and the proceeding was ex parte and at no point of time, the defendant or any person had objected to the right, title, interest and possession of the plaintiff and the defendant with respect to the suit property. He has submitted that under such circumstances when the title was not in dispute there was no occasion for the court to come to a finding that by virtue of the sale deed (Exhibit 1) in favour of the plaintiff and the defendant, they did not acquire valid title over the suit property which was subject matter of suit seeking partition. 25. The learned counsel has referred to the judgement passed by Hon’ble Supreme Court reported in (2010) 10 SCC 677 (Ritesh Tewari and anr. Vs. State of Uttar Pradesh and Ors.) paragraph 37 which is quoted as under: “37. Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. “Every trial is voyage of discovery in which truth is the quest”. Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself. (Vide Jamatraj Kewalji Govani v. State of Maharashtra [AIR 1968 SC 178: 1968 Cri LJ 231] and Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158: 2004 SCC (Cri) 999].” 2025:JHHC:19375 12 26. He has also referred to the judgement passed in the case of Sat Paul Vs. Delhi Administration reported in (1976) 1 SCC 727 paragraph 39 and 42 to submit that a distinction has been drawn with respect to law applicable to India and England. He has submitted that under Indian law, a witness produced by either the plaintiff or the defendant can be questioned by the respective party, regardless of whether the witness is declared hostile, unfavourable, or adverse. However, such a provision does not prevail under English law. Under the English Law, he can be cross-examined by the person who has produced the witness only when he is declared hostile or unfavorable. The learned counsel submits that the entire exercise of putting question to the witness is to elicit any admissions, or contradictions in his evidence and arrive at the truth. 27. The learned counsel has also relied upon the judgement by the Hon’ble Supreme Court reported in 2024 Supreme (SC) 281 (Shailesh Kumar Vs. State of U.P) paragraph 29 & some portion of paragraph 30 to submit that Section 165 of the Evidence Act speaks of the power of the court to put questions and order production of documents in course of trial and this general and omnibus power has been given to the court to search the truth and such a power can be used to be exercised against any witness both in a civil and a criminal proceeding. The learned counsel submits that once the court thought it proper by exercising power under Section 165 of the Evidence Act to call for another case record and after going through the documents from the other case records the court marked certain documents as exhibits, proper opportunity was required to be given to the plaintiff. He submits that the manner in which the trial court has proceeded in this case by receiving the document on the date and marking the documents on the same date and passing the judgement also on the same day, was not proper. The court could not have acted in the manner without confronting the plaintiff with such documents if they were to be used against the plaintiff. 2025:JHHC:19375 13 28. The learned counsel however has also placed on record a judgement passed by Hon’ble Kolkata High Court reported in 1922 SCC OnLine Cal 165 (Annapurna Debya Vs. Amiya Nath Banerjee and Ors.) wherein in paragraph 8, the court has observed that a fine distinction was sometimes made between a doubtful and a disputed title and the question raised was whether mere fact that the defendant disputed the title of the complainant was sufficient to oust the jurisdiction of the court. In that respect, the court observed that sometimes a distinction has to be drawn between a disputed and a suspicious title and mere denial does not necessitate a reference to the tribunal. A court of equity however has jurisdiction to determine whether the title is free from suspicion to proceed whenever in its judgement the title is clear. It has also been held in paragraph 9 that apart from this, whenever a court of equity determines that there is serious dispute with regard to legal title, it will not proceed until those doubts have been judiciously determined and removed and for that purpose the suit may also be stayed, so that the plaintiff may bring a suit for declaration of his title. 29. The learned counsel has submitted that on account of the aforesaid procedural defect in exercise of power under Section 165 of the Evidence Act, the impugned judgement is fit to be set aside and the matter may be remanded to the court concerned so that the plaintiff may be confronted with the documents which has been exhibited by exercise of power under Section 165 of the Evidence Act and the plaintiff may respond to the same and thereafter appropriate judgement may be passed by the trial court as per law. Findings of this Court 30. Considering the contours of arguments advanced on behalf of the appellant and upon perusal of the records and the observations made from the records as recorded above with the assistance of the learned counsel for the appellant, this Court is of the view that following are the points for determination by this Court: (i) Whether the learned court fell in error while it scrutinized the materials adduced in another title suit being T.S. 139 2025:JHHC:19375 14 of 2012 and in Title Appeal No.83 of 2015, marking them as exhibits and utilising them against the plaintiff without affording an opportunity to the appellant? (ii) Whether it was incumbent upon the learned court upon exercise of powers under section 165 of the Indian Evidence Act to put necessary questions to the plaintiff to prove the documents from other records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 and hence section 165 of the Indian Evidence Act was incorrectly applied? 31. The aforesaid two points of determination have been framed by this Court primarily on account of the procedural defect which has been pointed out by the learned counsel for the appellant in regard to exercise of power under Section 165 of the Evidence Act by the learned trial court. Section 165 of the Indian Evidence Act is quoted as under: “165. Judge’s power to put questions or order production. –– The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 32. This Court finds that the learned trial court found no clarity in coming to a prima facie finding in connection with the title of the plaintiff and the defendant although the sale deed Exhibit 1 and the 2025:JHHC:19375 15 rectification deed Exhibit 1/A was exhibited before the court and although the proceeding was ex parte. 33. This Court is of the considered view that even if the proceeding is ex parte and even if the suit was not filed for declaration of title and was only for partition, the court is required to be satisfied with the case of the plaintiff and for that purpose some prima facie enquiry in connection with the title of the plaintiff can certainly be undergone. This aspect of the matter finds support from the judgement passed by Hon’ble Kolkata High Court as referred to by none less than the learned counsel for the appellant himself. 34. Further the learned court in order to come to the satisfaction regarding the title of the plaintiff has suo moto called for the records of the Title Suit No.139 of 2012 and also the Title Appeal No.83 of 2015 by exercising power under Section 165 of the Evidence Act. This is over and above the fact that the P.W. 2 in his evidence has stated that Sabha Pati Yadav and others had sold the property in 2008- 09, in response to the questions put to them by the court. 35. This Court is of the view that there was no illegality in calling for the records from the other court relating to Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 as the fact about Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 was already disclosed in the plaint. 36. However, the records reveal that learned trial court vide order dated 24.04.2023 had called for the records of Title Suit No.139 of 2012 which was produced before the trial court on the next day i.e. on 25.04.2023 and only the counsel for the plaintiff was present on 25.04.2023 and many of the documents from Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 were marked as exhibits in the present suit running from Exhibits III, III/1, IV/1, IV/2, and IV/3 and further the two powers of attorney which were already produced by the plaintiff were marked for the first time as Exhibit I and II on 25.04.2023 and later on the same day the judgement was pronounced. 37. This Court is of the considered view that even if the plaintiff was a party in Title Suit No.139 of 2012 and Title Appeal No.83 of 2025:JHHC:19375 16 2015, the learned court after having called for the records of the said title suit/title appeal and before relying upon one or the other document which was marked as exhibit in the said title suit/title appeal placed on record by one or the other party could have marked the same as exhibit in the present case as well. However, at the time of marking such documents as exhibit, it was the duty of the court to confront the plaintiff with those documents so as to give an opportunity to the plaintiff to object/explain the same. The exercise of power would be in the same manner as the witness is required to be confronted by his previous statement made in writing or otherwise at the time of trial in terms of Section 145 of the Evidence Act failing which such a piece of evidence cannot be used against the witness. 38. In view of the judgement passed by Hon’ble Supreme Court in the case of Ritesh Tewari (supra), it has been held that Section 165 of the Evidence Act empowers the court to ask questions relevant, irrelevant, related, unrelated to the case to a party to ascertain the true facts and the court in any case cannot admit illegal or inadmissible evidence for basing its decision and such a power is an extra ordinary power conferred upon the court to elicit the truth and to act in the interest of justice. This power has to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision to uphold the truth and the purpose is to secure justice by full discovery of truth and accurate knowledge of the facts and for this the court can certainly put question to the parties. 39. This Court is of the considered view that the documents which have been procured by the court from another record of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015 were certainly required to be put to the plaintiff, so that the court could discover full truth and accurate knowledge of fact. Such documents from Title Suit No.139 of 2012 could not have been unilateral used against the plaintiff without taking the plaintiff in loop. Such exercise is ingrained in Sections 165 and 145 of the Evidence Act in absence of which, the exercise itself may result in complete failure of justice. Any material being used against the plaintiff by exercise of power under Section 2025:JHHC:19375 17 165 of the Evidence Act has to be put to the plaintiff before coming to a finding based on such material. 40. In the judgement passed by Hon’ble Supreme Court in the case of Shailesh Kumar (supra), it has been held with respect to Section 165 of the Evidence Act that this general and omnibus power has been given to the court when in search of the truth. Such power is to be exercised against any witness before it, in both civil and criminal cases. The object is to discover adequate proof of the relevant facts, and for that purpose, the judge is authorised to ask any question of his choice. This Court is of the view that this principle would apply to any previous oral evidence and also documentary evidence which is to be used against the plaintiff. 41. From perusal of the impugned judgement, this Court finds that the learned judge at paragraph 13 (g) has recorded that the court found it necessary to peruse the documents from the records of Title Suit No.139 of 2012 and the court recorded that the court was sure that the plaintiff of the case will not take it with surprise because the plaintiff was defendant no.2 in Title Suit No.139 of 2012 and if the defendant was also present, he would also not be surprised as he was defendant no.1 in the suit. The court also recorded that the husband of the plaintiff/GPA holder will also not take it with surprise, as he is the one who was looking after the case of the plaintiff in both the proceedings i.e. the present suit as well in Title Suit No.139 of 2012. 42. This Court finds that the learned court was conscious of the fact that under ordinarily circumstances, the documents are supposed to be put to the plaintiff, but the court did not think it proper to put the document to the plaintiff for her response by recording that the plaintiff and the defendant were already party in Title Suit No.139 of 2012 and the power of attorney was conducting both the cases. This Court is of the considered view that such an approach of the learned court is ex facie fallacious inasmuch as the documents produced in the court in Title Suit No.139 of 2012 cannot be said to be reflecting the gospel truth and it is the judgement and the findings of the judgement in Title Suit No.139 of 2012 on the issues involved in the said Title 2025:JHHC:19375 18 Suit No.139 of 2012 which would bind the parties. The evidence produced in Title Suit No.139 of 2012, if is to be used in the present suit, were required to be put to the plaintiff/their witness during evidence for their response before they could be used to dismiss the present suit. 43. This Court is of the view that in spite of the fact that the plaintiff and the defendant were party in Title Suit No.139 of 2012 and the power of attorney was also conducting the Title Suit No.139 of 2012, still it was necessary for the court to put the documents to the plaintiff/her witnesses for their response failing which the complete exercise of discovery of truth by invoking power under Section 165 of the Evidence Act remained incomplete which has caused great prejudice not only to the plaintiff but also to the defendant in as much as the very sale deed on which the claim for partition was based has been invalidated by the court and the learned court has come to a finding that the title of both the parties was disproved. 44. While answering the points for determination it is held that the learned trial court certainly has the power under Section 165 of the Evidence Act to call for the records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015. However, the learned trial court fell in error while it scrutinized the materials adduced in another title suit being T.S. 139 of 2012 and in Title Appeal No.83 of 2015, marking them as exhibits and utilising them against the plaintiff without affording an opportunity to the appellant. It is also held that it was incumbent upon the learned court upon exercise of powers under Section 165 of the Indian Evidence Act to put necessary questions to the plaintiff to prove the documents from other records of Title Suit No.139 of 2012 and Title Appeal No.83 of 2015. Having not done so, there has been grave error in exercising power under Section 165 of the Indian Evidence Act. 45. In view of the aforesaid findings, both the points for determination are decided in favour of the appellant, and consequently, the impugned judgement cannot be sustained in the eyes of law which is hereby set aside. 2025:JHHC:19375 19 46. The matter is remitted back to the learned trial court for proceeding further from the stage of confronting the plaintiffs (P.W. 1 and P.W.3) with the documents which has been marked as exhibits vide order dated 25.04.2023 and then pass a fresh judgement. The evidences which have already been placed on record shall also be considered at the time of passing the fresh judgement. The appellant to appear before the learned trial court or the successor court on 09.10.2025 at 11.00 a.m. 47. This first appeal is disposed of in the aforesaid terms. 48. Let a copy of the judgement be forwarded to the respondent through speed post. 49. Let a copy of this judgement be forwarded to the learned court through FAX/e-mail. (Anubha Rawat Choudhary, J.) 16th July 2025 Saurav/