Khem Chand and others vs Kamal Kishore and others

B.S. Yadav, J.—This Second Appeal has been filed by Defendant Nos. 1 to 4 and 6. Defendants Nos. 7 and 5 have been arrayed as Respondent Nos. 3 and 4 respectively. This appeal arises out of a suit filed by Respondent Nos. 1 and 2 for possession of the house in dispute situated in Bhiwani. According to the allegations in the plaint, this house was owned by Tej Ram, grand-father of the Plaintiffs. He executed a registered gift deed dated 10th January, 1956 in respect of this house in their favour and also delivered its possession to them. Panna Lal, father of Defendant Nos. 1 to 5 and husband of Defendant No. 6 had filed a suit for permanent injunction against the Plaintiffs and their father Nathu Ram on the ground that he was its owner in possession and they (i. e. present Plaintiffs and Tej Ram) should not interfere with his rights. That suit was dismissed on 23rd November, 1968. That judgment operates as res judicata between the parties. Panna Lal took possession of this house in the absence of the Plaintiffs who were residing in Delhi about three years prior to the filing of the instant suit (which was filed on 22nd October, 1971). Panna Lal, who was in relation their grand-father, was asked many times to vacate the house but he did not listen. Panna Lal died about 21/2 years prior to the filing of the suit. Now Defendant Nos. 1 to 6 were in its illegal possession. It may be mentioned here that Defendant No. 7 Nathu Ram (some other person than the father of the Plaintiffs) was made a party to the suit as during the pendency of the suit some portion of the house had been given to him on rent by the contesting Defendants. The plaint was amended accordingly.

The suit was contested by Defendant Nos. 1 to 4 and 6. They pleaded that the gift deed executed by Tej Ram in favour of the Plaintiffs was null and void as the house was owned by Chiranji Lal father of Parma Lal. Said Tej Ram, who was brother of Panna Lal, had been adopted by Pokhar Mal son of Durga Prashad and, therefore, he lost his rights in the house. Before and after the said gift, Panna Lal had remained in possession of the house and the Plaintiffs did not get its possession under the gift deed. The Defendants have got his house being members of the joint Hindu family with their grand-father Chiranji Lal. The judgment given in the suit filed by Panna Lal was not binding upon them because in the suit the legality or illegality of the gift deed was not decided. Alternatively they pleaded that they have become owners of the house by adverse possession for over 12 years. Some other pleas were also taken as will be clear from the following issues framed by the learned trial Court:-

Whether the Plaintiffs are owners of suit property on account of the gift deed made by Tej Ram in his favour on 10.1.1956 ?

Whether the donor later or revoked and was legally competent to revoke the gift deed in favour of the Plaintiffs if so to what effect ?

Whether the judgment and decree dated 23.1.1968 passed in civil suit No. 794 of 1966 is not binding on the Defendants ?

Whether the Defendants have become the owners of the suit property by way of adverse possession ?

Whether the suit has been properly valued for the purposes of court fee and jurisdiction ?

Whether the property in suit has not been properly described in the plaint, if so to what effect ?

Relief.

Under issue No. 1 learned trial court held that the suit house had been gifted by Tej Ram to the Plaintiffs by means of a registered gift deed, copy Exhibit P.1 and the judgment (copy Exhibit PA) by which the gift had been held to be valid, operated as res judicata between the parties. Under issue No. 2 it was held that though Tej Ram purported to revoke the gift by means of revocation deed, Exhibit D.1 but that revocation was invalid as the donor had delivered possession to the donees and thus the gift had become complete. Under issue No. 3 it was held that the suit proprty was not Hindu coparcenary property and the contesting Defendants drived title from their deceased father, Panna Lal and thus the judgment (copy Exhibit PA) was binding upon the Defendants. Under issues No. 4 it was held that the Defendants were not in possession of the house in dispute prior to 1968 and as the suit had been filed in 1971, the Defendants had perfected their title by adverse possession. Under issue No. 5 it was held that the value of the house was not less than Rs. 1000/- and required a court fee stamp of Rs. 150/- and as the Plaintiffs had affixed court fee stamp of Rs. 50/- only, they were liable to make good the deficiency in court fee. Issue No. 6 was not argued on behalf of the Defendants and, therefore, it was found against them. As a result of the above findings, the Plaintiffs'' suit for possession of the house in dispute was decreed subject to the condition that the Plaintiffs would make up the deficiency in the court on or before 3rd October, 1974, failing which the plaint shall stand rejected.

Feeling aggrieved, the contesting Defendants filed an appeal which was heard by learned District Judge, Bhawani. Before him the point raised was that the suit house was co-parcenary property and, therefore, the sons of Panna Lal acquired title in it on their birth as coparceners and thus the decree passed against Panna Lal in the earlier suit did not operate as res judicata. All these points were repelled by him and it was held that the suit property had not been proved to be co-parcenery property and, therefore, the judgment rendered against Panna Lal was binding upon his sons and widow and they were precluded by the principles of res judicata from impeaching the validity of the gift. The plea of the Defendants that the gift by Tej Ram stood revoked, was also found against them. The finding of the learned trial Court that the sons and widow of Panna Lal had not perfected their title by adverse possession, was confirmed. As a result he dismissed the appeal. It may be mentioned that in that court the Defendants had filed an application under Order 41 Rule 27, CPC for permission to lead additional evidence. The addititional evidence sought to be produced was a sale deed by which Durga Dutt and Kahani Ram had purchase the house and thus the Defendants sought to establish that the house in dispute was co-parcenary property in the hands of Tej Ram and Panna Lal. The learned District Judge held that in view of the judgment passed against Panna Lal, the sale deed sought to be produced, was not required for just decision of the case nor the court required it for enabling it to pronounce the judgment. The application was accordingly dismissed.

The learned Counsel for the Appellants vehemently argued that the learned lower Appellate Court wrongly disallowed the application filed for additional evidence According to him, the document was a registered one and was 100 years old and, therefore, its genuineness could not have been doubted. It was also pointed out that in the application filed for additional evidence it was specifically stated by the Defendants that the sale deed could not be traced at the relevant time and so they could not produce it at the time of evidence. I am of the opinion that the lower Appellate Court rightly disallowed the application. The suit had been filed in October, 1971. The trial court decreed it on 25th September, 1974. The contesting Defendants filed an appeal on 22nd October, 1974. The application for additional evidence was made on 21st October, 1976 i e after about 5 years of the filing of the suit. In the application it is not at all mentioned as to how the Defendants were able to trace that sale deed. Order 41 Rule 27 before its amendment stood as follows:-

(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

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

The lower Appellate Court while dismissing the application has remarked that the sale deed in question was not required for the just decision of the case nor the court required it for enabling it to pronounce the judgment.

Merely because the Defendants discovered the document late is no ground for allowing additional evidence. In Arjun Singh alias Puran Vs. Kartar Singh and others, , it was remarked:-

Under Order 41 R 27, it is the appellate Ct. that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well known case of Kessowji v. G. I. P. Railway, 34 I. A. 115: (31 Bom. 381 (P. C),

''the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacunae or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence and the appln. is made to import it'', and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan, 58 I. A. 254 (A. I. R. (18) 1931 P. C. 143). The true test, therefore, is whether the appellate Ct. is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.

The above ruling was followed by this Court in Amar Singh and Ors. v.

Ashok Kumar (1973) 75 P.L.R 761. It was remarked:-

The law is firmly established that provisions of order 41 Rule 27(l)(b) of the Code of Civil Procedure, are not intended to allow a litigant who has been unsuccessful in the trial Court to patch up the weak parts of his case and fill up omissions, in the Court of appeal. The additional evidence under this provision cannot be admitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. The true test, therefore is whether the appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced or whether the appellate Court itself requires certain evidence to be adduced in order to enable it to pronounce judgment.

The Defendants could not be allowed to fill up the lacune in their evidence at the appellate stage.

The learned Counsel for the Appellants argued that according to the amendment introduced in Rule 27 of Order 41, CPC by Section 87 of the CPC (Amendment) Act, 1976, a party can produce additional evidence even if the evidence is discovered later on. That rule will come into play only if the party seeking to produce additional evidence established that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In the application the Appellants has alleged as follows:-

That the applicants now want to lead additional evidence, which is sale deed pertaining to the disputed house. That this sale deed (original) is in bad condition. Its paper has outlived its age and so applicants could not trace it out at the relevant time and so they could not produce it at the time of evidence. They have also obtained a certified copy of the sale deed for the quick and convenient perusal of your honour which is attached herewith.

The above averment does not show that any attempt was made to trace this document. If the old papers had been seen, the Appellants would have come to know about the sale deed. Moreover, I am of the opinion that the above amendment cannot help the Appellants because it came into force with effect from 1st February, 1977. The lower Appellate Court had dismissed the Appellants'' application for permission to lead additional evidence on 10th November, 1976 i. e. before the amendment came into force. In the present appeal only the order about rejection of that application by the lower Appellate Court has been challenged.

It was next argued by the leaned counsel for the Appellants that the lower appellate court has remarked that there was no clear evidence to pin point the nexus and nucleus of the house in dispute and as such to remove that obscurity that court ought to have allowed the additional evidence. That remark was made by the court in connection with the fact that none of the sons of Panna Lal had appeared in the witness box to claim that this house was joint Hindu family property and that it was ever possessesd by their great grand-father and, therefore, they had interest therein on account of their being co-parceners with Panna Lal. Therefore, it is futile to argue that the sale deed is required for removing some obscurity in the evidence.

Otherwise also by the sale deed the Defendants want to prove that one house has been purchased jointly by Kahri Ram and Durga sons of Bahadur. According to the pedigree table reproduced in the judgment of the lower appellate court, Kanhi Ram had two sons named Chiranji Lal and Gulzari Lal. It appears that Gulzari Lal had died issueless. Chiranji Lal had two sons named Tej Ram and Panna Lal. The Defendants are sons, daughter and widow of Panna Lal who has since died. Tej Ram had been adopted by Pokhar Mal son of said Durge. Tej Ram in turn had adopted one Nathu Ram. The Plaintiffs are Sons of Nathu Ram. In the written statement the Defendants have nowhere pleaded that the house in dispute was the co-parcenary property of the joint Hindu family consisting of Chiranji Lal and Tej Ram adopted son of Durga and their descendants. On the other hand, it was pleaded that Tej Ram had been adopted by Pokhar Mal son of Durge, and therefore, he had no right in the suit house. It was also pleaded that the house in dispute belonged to joint Hindu family consisting of Chiranji Lal and Panna Lal of which the Plaintiffs were members. Tej Ram was not said to be the member of the joint Hindu family consisting of Chiranji Lal and his descendants. Therefore, the additional evidence sought to be proved goes against the plea raised by the Defendants.

Moreover, the proof of the sale deed sought to be produced will not establish that it relates to the house in dispute. The learned Counsel for the Appellants argued that in the reply filed by the Plaintiff to the application for permission to lead additional evidence, it was not stated that the sale deed did not relate to the house in dispute and, therefore, it must be presumed that it relates to this house. Merely because at that stage the Plaintiff did not allege that the sale deed did not relate to the house in dispute, it does not mean that they have admitted that it relates to this house. The copy of the sale deed produced with the application shows that the said house measured 8x7 square yards. Nathu Ram, father of the Plaintiffs, appeared in the witness-box and has stated on oath that the length of the house is 22 yards while its breadth is 4 yards. Hence 1 do not find any infirmity in the order of the lower appellate court by which the Appellants'' application for additional evidence was rejected.

After consideration of the evidence, both the courts below have given a finding of fact to the effect that the Defendants have failed to prove that the house in dispute was a co-parcenary property and that the sons of Panna Lal got a right by birth. This finding of fact is binding upon this Court. In this respect reference can be made to Sadhu Vs. Kishni, , wherein as it was remarked:

The scope of second appeal as envisaged by Section 100 of the Civil P. C. and Section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this Court as well as by the final court, that is, the Supreme Court of India. The learned Counsel for the Appellant has actually made a reference in this regard to Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57 ; Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, ; Bithal Das Khanna v. Hafiz Abdul Hai, 1969 SC 481 and Afsar Sheikh and Another Vs. Soleman Bibi and Others, . These pronouncements, in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the Jess a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact.

Otherwise also there is not sufficient evidence on the file to show that the house in dispute ever belonged to Chiranji Lal. None of the sons of Panna Lal has stepped into the witness box to support their case. Only Defendant No. 6 Smt. Laxmi Devi appeared in the witness-box. She is the widow of Panna Lal. She has stated that she is residing in the house in dispute since her marriage and it was ancestral qua her father-in-law (i. e. Chiranji Lal). It is not clear whether Chiranji Lal was alive at the time of her marriage. She is aged 70 years. P.W.5 Ganpat, who is aged 68 years, has not stated that Chiranji Lal ever resided in the house in dispute or had any connection with it. According to him, Panna Lal used to reside in this house. Hence there is no evidence that the house in dispute was owned by Chiranji La] or his ancestors. Therefore, it cannot be held to be co-parcenary property of Panna Lal and his sons.

I may mention here that the learned Counsel for the Appellants relied upon revocation deed Exhibit D.1 executed by Tej Ram, wherein he has recited that the suit property was joint Hindu family property and Panna Lal had also share in it. That recital is not binding upon the present Plaintiffs and on the basis of that recital it cannot be held that the suit house was ever co-parcenary property in the hands of Panna Lal.

As noticed earlier, Panna Lal had earlier filed a suit against Nathu Ram and the present Plaintiffs for injunction claiming himself to be the owner of the house in dispute. In that suit he had also challenged the gift effected by Tej Ram in favour of the Plaintiffs. That suit was dismissed vide judgment copy Exhibit PA. As the Plaintiffs are deriving title to this house through Panna Lal, they are bound by the judgment as it will operate as res judicata against them.

The learned Counsel for the Appellants next argued that the Defendants have become owners of the suit house by adverse possession. To wriggle out of the judgment, copy Exhibit PA, the learned Counsel for the Appellants argued that in that suit the question of possession of Panna Lal was not considered. This argument has no force. In that case it was held that after effecting gift, Tej Ram had delivered possession of the house in dispute to Kamal Kishore and Satish Kumar i. e. the present Plaintiffs and the donees were receiving rent of the property since then. In that case Panna Lal had produced evidence in the shape of some rent notes to show his possession over the suit house but it was held that it was not adequate evidence to establish that the rent notes related to the property in dispute as Panna Lal owned other house also. Therefore, it is futile to argue that in that suit the question of possession of Panna Lal was not in dispute.

Otherwise also both the learned courts below have held that Defendants have not become owners by adverse possession. That is a finding of fact and is binding on this Court.

For the foregoing reasons I do not find any force in the present appeal and dismiss the same with costs.