Jangir Singh vs Wazir Singh and Others

R.L. Anand, J.—This is a defendant''s appeal and has been directed against he judgment and decree dated 13.10.1982 passed by the Court of Additional District Judge, Sangrur, who set aside the judgment and decree dated 6.11.1979 passed by the Court of Sub Judge 1st Class, Sanam, who dismissed the suit of the plaintiff-respondent, for possession.

The pleadings of the parties can be summarised in the following manner:-

According to the plaintiff, the land detailed in para No. 1 of the plaint was owned by Lehna Singh, who was brother of Wazir Singh plaintiff. Said Lehna Singh sold the land to defendant No. 1 Jangir Singh on 3.6.1955 for a sum of Rs. 8000/-. Plaintiff Wazir Singh filed a suit for declaration under the Customary Law challenging that alienation. The suit was decreed by the trial Court on 31.1.1956 the appeal was also dismissed on 21.5.1956 and the plaintiff was allowed to get the possession on payment of Rs. 6300/-. Lehna Singh died on 26.2.1978. The plaintiff alone was his legal heir. The plaintiff alleges that the land in dispute was allotted in lieu of the land mentioned in para No. 1 of the plaint. Defendant No. 1 Jangir Singh mortgaged the land to defendant No. 2 and Nand Singh, father of defendants Nos. 3 to 8, for a sum of Rs. 7,000/- on 25.7.1967 and got it redeemed in his name. Mutation was effected but that mutation has no effect on the rights of the plaintiff. On the basis of the decree dated 21.5.1956 the plaintiff filed the present suit for possession.

Notice of the suit was given to the defendants who denied the allegations of the plaintiff it was denied that plaintiff Wazir Singh was the brother of Lehna Singh deceased. It was further denied that the land in suit was allotted in lieu of the land which was sold to defendant No. 1. It was further pleaded that Lehna Singh did to die intestate and he had executed a will in favour of defendant No. 1 and on the basis of that will defendant No. 1 has become the absolute owner. The decree after the repealing of right under custom is not executable. The defendants also denied the jurisdiction and value of the suit and stated that it was not valued properly for the purpose of court-fee.

From the above pleadings of the parties, the trial Court framed the following issues:-

Whether plaintiff is legal heir of Lehna Singh deceased? OPP.

Whether plaintiff is entitled to decree of possession on the basis of decree of declaration dt 31.1.56 and decree of Distt. Judge dt 21.5.56 on payment of Rs. 6300/- ? OPP.

Whether land in dispute was allotted in lieu of old Khasra numbers? OPP.

Whether Lehna Singh executed any valid will in favour of Jangir Singh, if so, its effect? OPD.

Whether the plaintiff has no locus standi to file the suit? OPD.

Whether suit is not maintainable in present form ? OPD.

Whether suit is properly valued for court fee & jurisdiction? OPD.

Whether suit is to be stayed u/s 10 C.P.C. as alleged in the written statement? OPD.

Relief.

The parties led oral and documentary evidence in support of their case and finally the suit of the plaintiff Wazir Singh was dismissed, mainly on the ground that he failed to connect the suit property with the land regarding which the suit was decreed in favour of the plaintiff and the reasons advanced by the trial Court are given in para Nos. 10 and 11 of the judgment, which are reproduced as under:-

"10. However, second contention appears to me of some force. In the report no doubt it is mentioned that notice to both parties'' lawyers was given but there is no signature of either lawyer for this suit, nor there is any postal receipt to prove that such notice was sent by post, nor local commissioner himself has been examined to prove this fact, nor there is any proceedings noted by the local commissioner to denote the presence of counsel for parties at the time when he examined the Patwar Moharrir and recorded his statement Ex.P5. There is no cross-examination of postwar Moharrir, nor this fact is mentioned "cross-examination nil. Opportunity was given." That denotes the absence of other lawyer. Where opponent lawyer has not been given an opportunity to cross-examine the Patwar Moharrir, his statement per se cannot be admissible and once the statement Ex.P5 is excluded, the excerpt Ex.P6 is not proved. Because, as held in case Banta Singh v. Phuman Singh (1971) 73 P.L.R. 1042, the revenue excerpt is not part of the record of rights and does not carry any presumption of correctness. It has to be formally proved by the examination in the witness box of the person who has prepared it on the basis of entries in various settlement entries and jamabandies.

Now, in the excerpt itself Ex.P6, if closely scrutinised, it is found the Moharrir Patwar has not placed on file sufficient material to connect the land in dispute with its old numbers. In note No. 4 he has referred to Lari No. 36 of Haqdarwar. Now that Naksha Haqdarwar has not been produced on this file so as to clarify what value to each party of land was mentioned and how that value was fixed in the present land. Merely referring to Lari number is not mentioned, because the statement of Moharrir Patwar is not final adjudication of the matter and court has to come to its own conclusion on basis of material on file whether this facts is proved or not. From record produced, no corresponding value of land of old Killa numbers can be found out."

Unsuccessful plaintiff Wazir Singh filed the first appeal in the Court of Additional District Judge, Sangrur, who accepted the appeal and set aside the judgment and decree of the trial Court and granted a decree for possession of the entire suit land, as prayed for and the reasons advanced by the first appellate Court are also given in paras Nos. 10 and 11 of the judgment, which I reproduce as under:-

"10. I have considered this additional evidence produced by the plaintiff-appellant and I think the documents Ex.A.1, Ex.A2 and Ex.A7 prove beyond any manner of doubt that the land in dispute was allotted during consolidation in lieu of the land given in para No. 1 of the plaint. Ex.A.7 is the copy of the jamabandi of the year 1956-57. In this Jamabandi old Khasra numbers of the land as are detailed in para No. 1 of the plaint are given. A perusal of this jamabandi would show that the khata numbers of the old Khasra numbers were 50, 51 and 52. The land of these three khasras was put in hotch-potch during consolidation as is clear from Naksha Haqdarwar, copy of which is Ex.A.2 and in lieu of the land of Ex.A.2 land and in lieu of the land of Ex.A.2 land as given in register-Kararwari Chakbandi copy of which is Ex.A.1 was allotted to Jangir Singh defendant No. 1. So documents Ex.A.1, Ex.A.2 and Ex.A.7, if placed in juxta-position and read together in my opinion sufficiently prove that the land in dispute was allotted in lieu of the land of old khasra numbers detailed in Para No. 1 of the plaint. The learned counsel for the respondents could not argue much against it. He simply stated that the land after it was put in hotch-potch during consolidation was allotted to Jangir Singh defendant by means of a resolution. That resolution has not been produced. In the absence of the resolution it cannot be said that the land in dispute was allotted in lieu of the land of old khasra numbers. But I cannot agree to it. In the face of the above said three documents which dearly prove that the land in dispute was allotted in lieu of the land of old khasra numbers. I think it was not necessary for the plaintiff to produce copy of the resolution. Rather as the documents Ex.A.1, Ex.A.2 and Ex.A.7 prove that the land in dispute was allotted in lieu of the land given in para No. 1 of the plaint, the onus shifted to defendants to prove that the land in dispute was allotted in lieu of some other land and not in lieu of the land given in para No. 1 of the plaint. That being so, if the resolution helped the defendants they could produce the same in rebuttal. The defendants having not produced the resolution in rebuttal, cannot I think be heard to say (Jnat in the absence of that resolution documents Ex.A.1, Ex.A.2 and Ex.A7 should not be relied upon. Rather these documents even in the absence of resolution I think clearly prove that the land in dispute was allotted in lieu of the land of old Khasra numbers mentioned in para No. 1. This view of mine finds support from the statement of Jangir Singh defendant. He in his cross-examination clearly admitted that the land in dispute was allotted in lieu of the land of old Khasra numbers. The defendants, I therefore cannot wriggle out of the statement given by Jangir Singh defendant No. 1. Therefore, this statement I think goes a long way in supporting the plainttiff''s evidence and as such, relying upon the above discussed additional evidence produced by the plaintiff I must hold that the land in dispute was allotted in lieu of the land given in para No. 1 of the plaint. The contrary decision given by the learned trial Court on issue No. 3 is therefore, not correct and, as such, is hereby reversed.

My above discussion shows that the land in dispute was allotted in lieu of the land of old Khasra numbers given in para No. 1 of the plaint. The plaintiff as per the decision given by the learned trial Court on the other issues which decision was not in any way assailed before me by the learned counsel for the defendants, is entitled to get possession of the suit land if the same was proved to have been allotted in lieu of the land given in para No. 1 of the plaint. Therefore, the appeal in my opinion succeeds. I, therefore, accept the same. The judgment and decree passed by the learned trial Court are set aside and I pass a decree for possession of the land in dispute in favour of Wazir Singh, plaintiff-appellant, and against Jangir Singh and other defendants-respondents. However, in the circumstances of the case, the parties are left to bear their own costs."

This time aggrieved by the judgment and decree of the first appellate Court, the defendants have come in the present appeal, which I am disposing of with the assistance of Shri Amarjit Markan, Advocate, appearing on behalf of the appellants, and Shri Gurnam Singh, Advocate, appearing on behalf of the respondents.

8, I have just said that the plaintiff was non-suited on the ground that he failed to connect the old khasra numbers of the land with the khasra numbers mentioned in the plaint. In order to solve this difficulty, the plaintiffs filed application under Order 41 Rule 27, C.P.C., which was allowed by the first appellant Court vide order dated 16.1.1981, and the operative part of that order runs as follows:-

"The plaintiff had done his duty in getting the excerpt prepared from the Pat-war Moharrir and examining him. The document which the plaintiff-appellant now wants to prove arc in the form of explaining the excerpt and I hold the view that the proof of these documents becomes the requirement of this Court for giving a satisfactory judgment. I allow the application for leading additional evidence subject to payment of Rs. 75/- as costs. The defendant-respondent shall have a right of rebuttal. The costs have been paid."

The record of the first appellate Court also shows that in pursuance of this order the plaintiff tendered into evidence copies Exhibits A1 to A7 as additional evidence and closed the case. The case was adjourned for the evidence of the respondent in rebuttal on 13.2.1981, on which date the counsel for the respondent made a statement before the Court of District Judge that he did not want to lead any evidence in rebuttal; meaning thereby, that the defendant-appellant was given opportunity to lead the evidence in rebuttal to the additional evidence which was led before the first appellate Court. Need not to mention that the order dated 16.1.1981 has not been challenged by the defendant, but is now being challenged by Shri Amarjit Markan, Advocate, who submitted that the first appellate Court erred in allowing the application of the plaintiff under Order 41 Rule 27, C.P.C.. According to Mr. Markan, the application under Order 41 Rule 27, C.P.C., could be allowed by the first appellate Court while hearing the arguments in the main appeal itself and then by forming an opinion that the proposed additional evidence should be placed on record by the appellant. The argument raised by the learned counsel for the appellants is devoid of any merit because Order 41, Rule 27, C.P.C., is in two parts and for the sake of convenience I would like to reproduce it as under:-

"27. Production of additional evidence in Appellate Court.-

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) 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, after the exercise of the due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

A perusal of the above provision would show that the first part of this order does not give any right to any party to the appeal to produce the additional evidence, whether oral or documentary until and unless a specific case is made out as per clause (a) and (aa), as per the said rule, but clause (b) gives the right to the appellate Court to allow additional evidence if the appellate Court requires any document to be produced to enable it to pronounce judgment and for any other substantial cause.

Reverting to the facts in hand, the plaintiff produced excerpt on record, but the trial Court held that while preparing the excerpt, the Local Commissioner did not give notice to the opposite party and as such this document cannot be taken into consideration. In other words, the excerpt Exhibit P1 was not taken into consideration with regard to the mode of proof. Otherwise this document was prepared by the Revenue Officer with the help of the revenue record. The basis of the suit of the plaintiff was that the property in the hands of Lehna Singh was ancestral and any alienation made by Lehna Singh could not bind the reversionary rights of the plaintiff. That suit was decreed. Meaning thereby, the obstacle coming in the way of the plaintiff was removed but he could not get the possession of the property during the life-time of Lehna Singh. Consolidation Act cam" into force and consolidation proceedings took place in the village, as a result of which Khasra numbers were changed and it was necessary for the plaintiff to prove that the new Khasra numbers were carved out in lieu of the old one. In order to clarify that doubt, the order dated 16.1.1981 was passed by the Court of District Judge, Sangrur, in whose court this appeal was earlier pending. A perusal of the said order would show that the District Judge allowed the appellant to place on record the documents A1 to A7 because the production of those documents was required by the Court itself for giving a satisfactory judgment and in this view of the matter the citation which has been relied upon by the learned counsel for the appellant, reported as Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 , is not- applicable to the facts of the case in hand. It cannot be said that the District Judge allowed the additional evidence contrary to the principles governing the reception of such evidence, nor it can be said that he was using improper exercise of discretion. The learned counsel for the appellant has also relied upon Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, ; and Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, . I have also the occasion to go through all these authorities and I am of the considered opinion that the order dated 16.1.1981 passed by the District Judge, Sangrur, is rather in conformity with the provisions of Order 41 Rule 27, C.P.C. The first appellate Court was not allowing the lacuna to be filled by the plaintiff, rather the production of those documents was necessary for the proper adjudication of the case, which constitutes a substantial cause for the Court to allow this application. Moreover the defendant was afforded opportunity to lead evidence. He did not lead any evidence. He, rather, accepted the costs of Rs. 75/- without any objection which precludes him from challenging the validity of the order dated 16.1.1981. Thus there is no weight in the first argument raised by the learned counsel for the appellant that the additional evidence could not be allowed earlier to the decision of the main appeal.

The learned counsel for the appellants then submitted that even by the production of documents A1 to A7 the plaintiff was not able to establish the identity of the property in the absence of any resolution passed by the consolidation proceedings. I do not see any merit in this argument. I have gone through the documents A1, A 2 and A7, which clearly show that old Khasra numbers were 50, 51 and 52 and the land of these Khatas was put in the hotch-potch during consolidation proceeding, as is clear from Naksha Haqdar (Exhibit A2) and in lieu of the land shown in Exhibit A2, the land shown in Exhibit A1 was allotted to Jangir Singh defendant No. 1. This was the only land which was allotted to Jangir Singh in the village, as admitted by him when he stated in the cross-examination that the land in dispute was allotted in lieu of the land of old Khasra numbers. This admission on the part of Jangir Singh is binding and the defendants appellants cannot successfully get rid of it. Thus, the second argument raised by Shri Markan is also found to be devoid of any merit.

Learned counsel for the appellants Shri Amarjit Markan then submitted that Lehna Singh executed a valid will in favour of defendant No. 1 and he had the right to execute such will. The argument is devoid of any merit. The land in the hands of Lehna Singh was ancestral and under the custom he could not execute any will in favour of defendant No. 1 in order to defeat the reversionary rights of the plaintiff.

Lastly it was submitted by the learned counsel for the appellants that the first appellate Court was not justified in granting a decree for the land measuring 69 kanals 12 Marias. At the most it could grant decree for the land measuring 69 kanals 7 Marias as the plaintiff had added 5 Marias of land comprised in Khasra No. 8/1/2 of Rectangle No. 107. There is force in the argument which has been raised by the learned counsel for the appellants. As per the revenue record produced by the plaintiff-respondent Khasra No. 8/1/2 measuring 5 Marias was not allotted in lieu of the land earlier held by Jangir Singh. Exhibit A1 also shows that this Khasra number was not allotted. Learned counsel for the respondent also fairly conceded that the plaintiff could get a decree for possession to the extent of 69 Kanals and 7 Marias and not 69 Kanals 12 Marias and that the area measuring 5 Marias of Khasra No. 8/1/2 has been wrongly included in the plaint.

In this view of the matter I partly allow the appeal and modify the judgment and decree of the first appellate Court and grant a decree for possession in favour of the plaintiffs-respondents of the agricultural land measuring 69 Kanals 7 Marias situated in village Doodian, fully described in the decree-sheet prepared by the first appellate Court except the land measuring 5 Marias comprised in Khasra No. 8/1/2. With regard to this parcel of the land the suit of the plaintiff-respondents shall be deemed to have been dismissed. In all other respects, the judgment and decree of the appellate Court is hereby affirmed and the appeal dismissed with no order as to costs.