Bikkar Singh vs Smt. Charan Kaur and Others

Ram Chand Gupta, J.

C.M. No. 8842-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 2203 of 2011

present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 14.3.2011, Annexure P3, passed by learned Additional Civil Judge, Senior Division, Phillaur, vide which prayer of the Petitioner for permission to examine the handwriting and fingerprint expert in order to prove execution of sale-deed dated 12.2.1998 executed by Ujagar Singh in favour of Bachni, daughter of Ujagar Singh and Smt. Kartar Kaur (deceased) wife of Ujagar Singh has been declined.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of present revision petition are that Ujagar Singh (deceased) was owner of the land in dispute. He was having one daughter, namely, Bachni, i.e., wife of present Petitioner and one son, namely, Gurmej Singh, who has already expired. Respondents No. 1 to 6 are widow, sons and daughters of Gurmej Singh (deceased), who filed suit for declaration to the extent that they are owners in joint possession to the extent of half share in the property left by Ujagar Singh (deceased), whereas other half share was inherited by the Petitioner and other legal heirs of Bachni, since deceased.

On the other hand, plea was taken by legal heirs of Bachni that Ujagar Singh had executed sale deed in favour of his daughter and wife, namely, Bachni and Smt. Kartar Kaur, respectively and that Smt. Kartar Kaur further executed the sale deed in favour of Bachni, during her life time and hence, Bachni alone became the owner of the property in dispute.

On the pleadings of the parties, learned trial Court framed the following issues:

Whether the Plaintiff is entitled to possession as owner of residential house? OPP.

Whether the suit of Plaintiff is not maintainable in the present form? OPD

Whether the Plaintiff is barred by his own act and conduct from filing the present suit? OPD

Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD.

Whether the suit is time barred ? OPD.

Whether Smt. Bachni was a bona fide purchaser? OPD.

Relief

Parties adduced evidence in support of their respective contentions. The case was fixed for rebuttal and arguments when the present application for additional evidence was filed by present Petitioner-Defendant, which was declined by learned trial Court by observing as under:

The Plaintiff has filed the present suit for possession as owner claiming to be successor in interest of the original owner of the land in dispute namely, Ujagar Singh. Defendant appeared and contested the suit taking the plea that Kartar Kaur wife of Ujagar Singh became the owner in possession of the land in dispute by virtue of the sale deed dated 12.2.1988 and said Kartar Kaur was owner to the extent of 1/3rd share by purchase from Ujagar Singh, who sold her share during her life time to Bachni, daughter of Ujagar Singh by virtue of registered sale deed dated 28.2.1996 and thus Bachni became the owner in possession of the land owned and possessed by Kartar Kaur from the land in dispute. It is further averred that after the death of Bachni, the Defendants No. 1, 2, 3, 4 alongwith Daljit Kaur daughter of Bachni are the legal heirs of Bachni, but Bachni during her life time executed a will dated 8.10.1999 in favour of Bikar Singh, Defendant No. 1, her husband.

Plaintiff led her evidence in affirmative. Thereafter, Defendant examined attesting witness of the sale deed. Thereafter, in rebuttal Plaintiff produced expert Arvind Sud, who has been cross-examined at length by the Defendants. Now through the present application, the Defendant is seeking to produce the evidence in rebuttal to rebuttal evidence which is not permissible under law. The onus to prove the sale deed is on the Defendant and he has discharged his onus and if the Plaintiff has produced the Expert witness in rebuttal, then it is not open to Defendant to produce expert to rebut the rebuttal evidence. Moreover, the fact of the sale deed is not to be proved only on the basis of report of Expert. The present case is pending since 2003 and the present application seems to be filed just to delay the proceedings of this case. So, the application stands dismissed having no merits in it.

It has been contended by learned Counsel for the Petitioner-Defendant that the evidence now sought to be adduced by Petitioner-Defendant by way of additional evidence is essential for decision of the case as there is a dispute regarding execution of the sale-deed in favour of Bachni by deceased Ujagar Singh and that handwriting expert has been examined by Respondents-Plaintiffs in rebuttal evidence, who has given an incorrect report and hence, Petitioner-Defendant intends to examine another handwriting expert to prove that the disputed sale-deed bears thumb impression of Ujagar Singh. It is also contended that the said plea should have been allowed by learned trial Court, in the interest of justice, u/s 151 of the Code of Civil Procedure. He has also placed reliance upon Kewal Singh v. Jagjit Singh 2007(4) RCR 631.

Law has been well settled by Hon''ble Apex Court in Salem Advocate Bar Association v. Union of India 2005(3) RCR 530 that even after deletion of Order XVIII Rule 17 of the Code of Civil Procedure, additional evidence can be allowed only if party is able to show that the documents were not in his knowledge and that he could not produce the same at the time evidence was being led, despite due diligence.

However, in the present case, onus to prove the execution of the alleged sale deed by Ujagar Singh in favour of Bachni (deceased) was upon the Petitioner. Petitioner already availed sufficient opportunities to adduce evidence to discharge the said onus and did not choose to examine handwriting and fingerprint expert. In rebuttal evidence handwriting and fingerprint expert was examined by Respondents-Plaintiffs, who was duly cross-examined on behalf of the Petitioner.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.