Buta Singh and another vs Jota Singh and another

This regular second appeal is directed against the judgment and decree of the first appellate Court which, on appeal, affirmed those of the trial Court.

The facts, briefly, are that respondent No. 1 (hereinafter referred to as the plaintiff) filed a suit for possession of the suit land on the ground that the land measuring 14 Kanals 9 Marias was owned by Sadhu Singh and Gian Singh. They had mortgaged the same with Jota Singh plaintiff for Rs. 15,000/-through registered mortgaged deed D/- July 30, 1954. The plaintiff was given possession of the suit land on the same day. Teja Singh, father of the appellants (hereinafter referred to as the defendants), since deceased, cultivated the suit land for about 3/4 years as tenant under Jota Singh plaintiff. He gave up its possession about 5 years prior to the institution of the suit and the plaintiff entered into possession as mortgagee. About three months prior to the filing of the suit, the defendants entered into forcible possession of the suit land.

The defendants resisted the suit on the ground that Sadhu Singh and Gian Singh were big landowners. The suit land was declared surplus and was allotted to the defendants by the revenue authorities and they were put in its possession.

From the pleadings of the parties, the following issues were framed :

1) Whether the plaintiff has locus standi to file the present suit? OPP

2). Whether the plaintiff is mortgagee of the suit land? OPP

3) Whether there was a relationship of landlord and tenant between the plaintiff and the defendants? OPP

4) Whether the defendants have forcibly occupied the possession of the suit land? OPP

5) Whether the suit land was allotted to the defendants as alleged in the written statement? If so, when, and to what effect? OPD

6) Whether the Civil Courts have got jurisdiction to entertain and try the present suit? OPP

7) Relief.

Issues Nos. 1 and 2 were discussed together and were found in favour of the plaintiff. Issues Nos. 3 and 4 were also found in favour of the plaintiff. Issue No. 5 was answered against the defendants. Under Issue No. 6, it was found that the Civil Court had the jurisdiction to try the suit. A decree for possession of 6 Kanals 18 Marlas of land comprised in KhasraNos. 40/6/1 and 40/7/1 was passed in favour of the plaintiff.

The first appellate Court, on appraisal of the evidence, negatived the contention of the defendants that Sadhu Singh and Gian Singh were big landowners and that the suit land was allotted to the defendants by the revenue authorities.

There is no material on record to suggest that the suit land formed part of the surplus land of Sadhu Singh and Gian Singh and that it was allotted to the defendants. The defendants produced a copy of the report Roznamcha Patwari dated February 7, 1963 to support their claim that they were put in possession of the suit land by the revenue authorities. They also examined D.W.4 Jaswant Singh Patwari to establish that the suit land was surplus in the hands of Sadhu Singh and Gian Singh. Copy of the report Roznamcha Patwari was not proved according to law and it was not admitted into evidence. The oral evidence of the Patwari Agrarian D.W.4 Jaswant Singh cannot be preferred over the documentary evidence, which could have been produced if in fact the suit land had been declared surplus in the hands of Sadhu Singh and Gian Singh. Neither the order of the agrarian authorities declaring the suit land as surplus in the hands of Sadhu Singh and Gian Singh nor the order allotting the suit land to the defendants was produced. On the existing evidence on record, it cannot be held that the suit land formed part of the surplus land of Sadhu Singh and Gian Singh and that it was allotted to the '' defendants. The appellate Judge, on evidence, found that the defendants had failed to prove that the suit land was surplus and that it was allotted to them. The finding of the appellate Court essentially being evidence of fact is not open to exception.

Before I part with this judgment, it is necessary to deal with the application moved by the appellants under O.41, R. 27, Civil P.C., for producing on record the certified copy of the allotment chit allotting 1 standard acre and 12 units of land to one Teja Singh. The only ground mentioned in the application is that the allotment order could not be traced out from the papers left behind by Teja Singh deceased and the defendants had traced out the same from the record of the revenue authority issuing the said chit. A suit giving rise to this appeal was filed on July 27, 1979. It was decided on August 11, 1980. The appeal against the judgment and decree of the trial Court was preferred on September 24, 1980 and it was decided by the lower appellate Court on March 27, 1982. No explanation has been given as to why the defendants could not produce this document before the trial Court or the lower appellate Court. Under O.41, R.27, Civil P.C., the appellate Court can allow the production of additional evidence only if the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him at the time when the decree appealed against was passed against him. The defendants have failed to make out a case, much less prima facie case, for production of additional evidence at this belated stage. Moreover, the evidence sought to be produced will not advance the case of the defendants. The order declaring the suit land as surplus in the hands of Sadhu Singh and Gian Singh has not been produced. No evidence has been produced to prove that the alleged surplus land was allotted to Teja Singh, father of the defendants, in accordance with the Rules. There is no proof that the conditions precedent for the allotment of land were satisfied by Teja Singh deceased. It was highlighted by their Lordships of the Supreme Court in Financial Commissioner, Haryana State and Others Vs. Kela Devi and Another, , how surplus land can be allotted to the eligible persons. In the application it is not even remotely suggested that any of the conditions embodied in the judgment of the apex Court was fulfilled. The prayer for reception of additional evidence on both these grounds cannot be sustained. The same is declined.

Resultantly, the appeal and the application are dismissed with no order as to costs.

Appeal dismissed.