Dani and Another vs Suraj Bhan and Others

Vinod K. Sharma, J.—This regular second appeal by the defendant/appellants is directed against the judgment and decree dated 21.07.2004, passed by the learned lower appellate court, vide which suit for possession filed by the plaintiff/respondent stands decreed.

The plaintiff/respondent filed a suit against the appellant/defendant, on the pleadings, that Mahi Ram father of the plaintiff and proforma defendants was the owner in possession of the plot, comprised in Khasra No. 648/97, which was allotted to him vide allotment registry No. 437 dated 10.2.1977. Mahi Ram was delivered possession of a different plot where he got his house constructed which, in fact, belonged to Richhpal Singh, resident of Dhani Phogat. Richhpal Singh filed a suit for ejectment against the plaintiff and proforma defendants in which he succeeded. On coming to know that the plaintiff and proforma defendants were, in fact, owners of plot in Khasra No. 648/97, measuring 3 marlas, which was in possession of the defendant-appellant, a suit for ejectment was filed.

Suit was contested by raising a preliminary objection of suit being time barred. Plea of estoppel was also raised. It was also pleaded that the suit was not properly valued for the purpose of court fee and jurisdiction.

On merits, averments made in the plaint were denied. It was the case of the defendants, that they were in possession of the plot in their own right. Stand taken by the plaintiff/respondent in the previous suit was also pressed into service, in support of plea of estoppel.

Learned trial court dismissed the suit, by holding that the plaintiff had failed to prove, that the plot in dispute was allotted vide allotment registration No. 437 dated 10.2.1977, for the reason that photo copy was produced in support, which was not admissible in evidence. The plaintiff/respondent was, therefore, not entitled to possession. The suit was held to be within limitation, as it was a suit for possession on the basis of ownership.

Issues No. 6 and 7 were not pressed by the defendants i.e. whether proper court fee was paid, and whether the plaintiff was estopped from filing the present suit by his act and conduct.

In appeal, plaintiff moved an application under Order 41 Rule 27 of the CPC (for short the Code) to lead additional evidence by producing the original allotment letter.

Learned lower appellate court allowed the application, for additional evidence, in view of the fact that the allotment letter was more than 30 years old, and therefore, per se admissible.

The additional evidence was also necessary for the court to pronounce judgment, to adjudicate the real dispute between the parties. In view of the additional evidence i.e. allotment letter in favour of the plaintiff/appellant, appellate court reversed the findings of the learned trial court, and held that the plaintiff and proforma respondents were proved to be owners of the disputed land, measuring 3 marlas and entitled to its possession. Finding recorded on the question of limitation i.e. issue No. 3, by the learned trial court reads as under:

The onus to prove this issue was on the defendants. In view of my findings on issue No. 1 and 2, it cannot be said that suit of the plaintiff is time barred. Though, it is an another matter that plaintiff could not prove the title of the suit property but it is amply established on the record that the plaintiff came to know that they were not the owner of khasra number 648/127 only when they were ordered to be ejected from that plot by the order of the Court. The testimony of PW 2 Partap lends some support to the case of the plaintiff to justify their claim that in the year 1997 they came to know that they were not the owners of khasra No. 648/127, which led them to move before the SDM by moving an application Ex.P.1 for demarcation by providing police help, therefore, the present suit having been filed in the year 1997 cannot be held to be barred by limitation. Hence, this issue is decided against the defendants.

Mr. N.S. Shekhawat, learned Counsel for the appellants contends that this appeal raises the following substantial questions of law for consideration by this Court:

Whether the judgment and decree passed by the learned lower appellate court, is based on misreading of evidence and therefore, perverse?

Whether application under Order 41 Rule 27 could be allowed, merely because documents sought to be produced by way of additional evidence was more than 30 years old?

Whether the learned courts blow were justified in rejecting the cross objection without giving any reasons?

In support of the substantial questions of law, Mr. N.S. Shekhawat, learned Counsel for the appellant referred to Ex.DW 3/A i.e. the written statement filed by the plaintiff, in the previous suit filed against him for his eviction, wherein a stand taken by the plaintiff/respondent, was that he was allotted plot No. 648/25. The contention of the learned Counsel for the appellant was that this piece of evidence has been ignored, by the learned lower appellate court while holding the plaintiff/respondent, to be the owner of the plot in dispute. This contention of the learned Counsel for the appellants cannot be accepted as the plaintiff/proforma respondents were held not to be the owners of plot No. 648/25, as allotment letter in his favour was of plot No. 648/25. Once it was held by the learned court that he plaintiff/respondent was not allotted plot No. 648/25, merely because stand was taken to protect possession bona fide would not lead to a conclusion, that the plaintiff, thereafter, could not claim ownership over plot No. 648/97, on the basis of the document of title. The first substantial question of law, therefore, is answered against the appellant. It is held that judgment and decree passed by the learned lower appellate court is not outcome of misreading of evidence.

Learned Counsel for the appellants on the second substantial question of law contended, that the learned lower appellate court wrongly allowed the application, under Order 41 Rule 27 of the Code, merely on the ground that the document was 30 years old, therefore, per se admissible in evidence.

This contention of the learned Counsel for the appellants again cannot be accepted. The learned lower appellate court held that the document produced by way of additional evidence, was per se admissible and no evidence would be required to prove it. The main reason for allowing the application was, that the additional evidence was necessary for the court, to pronounce judgment on the question in the suit. It is well settled law, that the court can always allow additional evidence when the evidence is necessary for pronouncement of judgment, and for other just and good reasons. The contention of the learned Counsel for the appellant, therefore, on the second question of law also deserves to be rejected.

It was next contended by the learned Counsel for the appellants that the learned lower appellate court has failed to record reasons for rejecting the cross objections. The appellants had filed cross objections against the findings recorded by the learned trial court on issue Nos. 3, 6 and 7.

Reading of the findings of the learned learned lower appellate court on issue No. 3, would show that there is no scope to interfere with the said findings, as the findings are based on well settled law.

No fault, therefore, can be found with the judgment and decree of the learned trial court in rejecting cross objection raised against finding on issue No. 3.

As regards issues Nos. 6 and 7, needless to mention that these issues were not pressed before the learned trial court, by the appellants, and therefore, it was not open to contest these issues before the learned lower appellate court. The learned court, therefore, rightly rejected the cross objections filed by the appellant.

Third substantial question of law, therefore, does not arise, in this appeal and in any case deserves to be answered against the appellants.

For the reasons stated, I find no merit in this appeal which is ordered to be dismissed in limine, but with no order as to costs.