Ganpat Singh vs Amar Singh

Nigam, J.C.

Ganpat Singh filed Civil Suit No. 84 of 1943 claiming defendant''s dispossession from certain suit lands situated in Bhawani Khera Which he alleged to be part of the Istimrari estate, Kharwa. The suit was contested. The evidence was closed on 24-1-1949 and arguments were heard in part on 9-2-1949. Then on 12-2-1949 an application was presented by the plaintiff under S. 151, Civil P. C, requesting that the judgment in first appeal No. 91 of 1945, dated 12-2-1947 be taken on to the record. This application was dismissed summarily on the ground that it was a belated application and that the judgment was not binding on the defendant. The learned Subordinate Judge dismissed the suit and the plaintiff appealed.

In the memorandum of appeal, it was urged that the first court was not justified in dismissing this application of 12-2-1949. The learned District Judge did not consider this question in his judgment dismissing the appeal. Now the plaintiff has come up in second appeal. The learned counsel for the appellant has urged that the trial court and the learned District Judge were wrong in not admitting this document in evidence. It is urged that this document is relevant under S. 13, Evidence Act. On this point, I have heard the learned counsel for the parties.

In the present case the plaintiff urged that Bhawani Khera was part of village Kharwa which was part of the Istimrari estate of that name. The plaintiff''s suit was based on this assertion of title. The defendant in his written statement asserted that Bhawani Khera had been assigned to Shyam Singh as his share of inheritance on partition between him and his brother (sometime about 1846) and was held in possession by his descendants and has ceased to form part of the Kharwa Estate. The question at issue between the parties was whether Bhawani Khera was part of Kharwa Estate or whether it had been allotted to the branch of Shyam Singh whose descendant Amar-singh admittedly is. In the judgment of Civil Appeal No. 91 of 1945 of the court of the Additional District Judge Ajmer, one of the questions for consideration was whether the trial court had erred in holding that Bhawani pura (same as Bhawani Khera) was given to Thakur Shyam Singh as his exclusive share as a result of partition.

The learned counsel for the respondent has urged that in the present case the question is whether Bhawani Khera is part of the Kharwa Estate. I am of opinion that the two questional cannot be considered to be different. If Bhawani Khera is not property belonging to Shyam Singh, and his descendants as a result of partition, it will have to be considered to be part of Kharwa Estate and it will not be part of Kharwa Estate only if it was allotted to Shyam Singh on the partition relied upon by the defendant. I do not wish to suggest even remotely that the judgment in Civil Appeal No. 91 of 1945 is entitled to weight. That is a question on which I do not express any opinion as it will have to be considered by the trial court. Here, I only record the opinion that this judgment was certainly a relevant fact and should have been taken on to the record.

The learned counsel for the respondent has also urged that the document was not produced till a very late stage. That is true. The judgment was delivered in February 1947. As pointed out, the plaintiff''s evidence in rebuttal was closed only on 12-1-1949. The plaintiff did not open his evidence till July 1947. There is no reason why the plaintiff should not have produced this document even in July, 1947. No reasons for non-production have been mentioned in the application, dated 12-2-1949. The learned counsel for the appellant has relied on - ''Gopika Raman v. Atal Singh'', AIR 1929 p.c. 99 (A). The passage relied upon reads:

Even where the rule of exclusion applies and the documents cannot be filed without the leave of the Court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity which may assist the Court to decide rightly the issues before it.

In these circumstances, I am of opinion that the document (the judgment in question) should have been taken on to the record on payment of heavy costs and granting permission to the opposite party to adduce evidence, documentary or oral in rebuttal of this document.

Accordingly, I pass a conditional order. On the appellant''s paying into this Court within 15 days of today, a sum of Rs. 200/- plus the costs allowed to the respondent in the two courts below and also the cost incurred by the respondent in this Court, i.e., a total of Rs. 297/-(Rupees two hundred and ninety seven only) payable to the learned counsel for the opposite party, this document will be admitted in evidence, the judgment and decree of the learned trial Judge and the learned District Judge will stand set aside and the case will be remanded back to the first court for giving an opportunity to the defendant to adduce evidence, oral and documentary in rebuttal of this document and then to decide the case in accordance with law. I make it clear that the plaintiff will not be permitted to adduce any evidence except to prove this document and to prove the identity of the persons who were parties to that particular case. The defendant also will be permitted to adduce evidence oral and documentary only in rebuttal of this document.

In case of default in payment of the amount of Rs. 297/- (Rupees two hundred and ninety-seven only) as directed, the contention of the learned counsel that the document should haw been admitted will stand rejected and the appeal shall come up for hearing on other points on October 29 1953, and the appellant will be held liable to Rs. 30/- as adjournment costs.