Edal and Others vs Sukha and Others

S.S. Sodhi, J.—The controversy here is with regard to the registered gift-deed executed by Devi Sahai on August 14, 1967, whereby he transferred the land in suit to Sukha.

According to the Appellants, who are the collaterals of Devi Sahai, they were governed by custom in matters of alienation and succession and the land in suit being ancestral property could not have been alienated by Devi Sahai by way of gift to Sukha. They thus claimed possession of the land in suit, Devi Sahai having died on January 1, 1971.

The plea regarding the land in suit being ancestral was controverted by Sukha who also claimed to be the adopted son of Devi Sahai and consequently entitled to the land in suit as his sole heir, too.

The trial Court dismissing the suit of the collaterals holding that the land in suit was not ancestral and that Sukha was the adopted son of Devi Sahai and also that the gift in his favour was valid.

In appeal, additional evidence was sought to be led with regard to the ancestral nature of land in suit. The application filed under Order 41, Rule 27, of the CPC in this behalf was, however, dismissed. Counsel for the Appellants thereupon conceded that as this application had been dismissed the appeal could not succeed. The appeal too was accordingly, dismissed.

Addmittedly without the excerpt which the Appellants sought to adduce in evidence by the application under Order 41 Rule 27 of the Code of Civil Procedure, no other finding was possible except that recorded by the courts below, namely, that the land in suit was not ancestral. The emphasis thus in appeal was to have this Court hold that the lower appellate court erred in disallowing this additional evidence.

A reference to the record would show that on January 23, 1973, the evidence of the Plaintiff, in affirmative, was closed with the Plaintiffs'' reserving their right to produce the excerpt later. The Defendants then Jed their evidence which was closed on July 26, 1975 and the case was thereafter adjourned to August 19, 1975, for the evidence of the Plaintiff in rebuttal. The Plaintiff made a statement on that date that they did not wish to examine any further evidence and the case was then adjourned for arguments to August 25, 1975 It was on this date that the Plaintiffs filed an application seeking to tender in evidence the excerpt and that too from a summoned file. This application was dismissed on the next day, that is, August 26, 1975, with the observation that the excerpt, as was sought to be produced and proved, was not admissible and further that the admission of this evidence would tentamount to re-opening the entire case.

Turning now to the application for the production of the excerpt, as additional evidence, in appeal under Order 41 Rule 27 of the Code of Civil Procedure, a reading of the judgment of the lower appellate court would show that this application was dismissed on the ground that it had been filed merely for filing up gaps in the evidence and it did not, therefore, fulfil the requirements of the said rule.

No exception can indeed be taken to the trial court disallowing the production of the excerpt or the lower appellate court declining to accept it in evidence under Order 41 Rule 27 of the Code of Civil Procedure. It will be seen that the Plaintiffs had ample time and opportunity to produce the excerpt on record, but they failed to do so without any justifiable cause. On the face of it, this was but a clear attempt on their part to fill up the lacuna in their evidence and that too at such a belated stage. Admission in evidence of the excerpt in these circumstances was thus clearly unwarranted and the lower appellate court rightly disallowed the prayer to this effect.

Faced with this situation, Mr. Arun Jain, counsel for the Appellants sought to challenge the finding with regard to Sukha being adopted son of Devi Sahai. This challenge, must, however, be held to be barred keeping in view the concession made by the counsel for the Appellants before the lower appellate court. It would be pertinent to note in this behalf that no challenge has been made to this concession in the Grounds of Appeal. Counsel for the Appellants, however, sought to wriggle out of this situation by seeking to contend that an admission on a question of law would not bar a party from re-agitating the matter later. Cited in support being two judgments of the High Court of Lahore, namely ; AIR 1941 347 (Lahore) and In the matter of the AIR 1948 161 (Lahore) . A reading of these authorities would, however, show that neither of them has any relevance to the facts here and at any rate, the concession made by the counsel for the Appellants before the lower appellate court could, by no means, be construed to be one on a pure question of law.

The judgment and decree of the lower appellate court thus warrants no interference in appeal. This appeal is accordingly hereby dismissed with costs.