Mohan Lal vs Dhayan Singh

Rajiv Sharma, J.—This appeal is directed against the judgment & decree passed by learned Additional District Judge (CBI) HP Circuit Court Theog in Civil Appeal No. 2-T/13 of 2014 dated 31.7.2014.

Key facts necessary for the adjudication of the present appeal are that the plaintiff/ appellant (herein after referred to as ''plaintiff'' for convenience sake) have filed a civil suit against the defendants/respondents (herein after referred to as ''defendants'' for convenience sake) for permanent prohibitory injunction restraining the defendants from causing interference in land comprised in Khewat No. 36 min Khatuni No. 117 Khasra No. 778 situate in Mohal Kalinda Tehsil Theog, District Shimla.

According to the plaintiff he is owner in possession of the land comprised in Khewat No. 36 Khatauni No. 117 Khasra No. 778 situate in Mohal Kalinda. Trees of Mohroo species are standing on boundary of Khasra No. 775 and the suit land comprised in Khasra No. 778, which is in the form of apple orchard. Defendants are owners of the adjoining land comprised in Khasra No. 777. On 24.2.2012, defendants trespassed into the suit land. They threatened to cut and remove all trees standing on the suit land by cutting and lopping Mohroo trees.

Suit was contested by the defendants. Defendants admitted to be owners of adjoining Khasra No. 777 which adjoins the suit land. They have denied that they have interfered in the suit land. According to them, suit land comprised of Khasra No. 778 was previously part of Khasra No. 294. Boundaries of Khasra No. 294 abuts Khasra No. 289, 295, 293, 297 and 301. Plaintiff is not owner of suit land. It is averred that plaintiff in collusion with the settlement staff tried to change the existing old boundaries between the above referred numbers. Defendants have filed application for correction of the dimensions of Khasra numbers during settlement. Issues were framed by the learned Civil Judge (Senior Division) on 3.10.2012. He dismissed the suit on 29.11.2013. Plaintiffs filed appeal before Additional District Judge, who also dismissed the same on 31.7.2014. Hence, this appeal.

Mr. H.C. Sharma, Advocate on the basis of substantial questions of law framed argued that the courts below have not appreciated the evidence. According to him, Mohroo trees were standing on Khasra No. 778.

I have heard learned counsel for the parties and also gone through the judgment carefully.

Plaintiff is owner in possession of the land in Khasra No. 778 mentioned as apple orchard as per jamabandi for the year 2007-08, Ext. PA. Defendants admitted his possession over Khasra No. 778. According to the Aks Shajra Kishtwar Ext. D2, both the Khasra numbers abut each other. According to the plaintiff, defendants have illegally cut, removed and lopped trees of Mohroo species on 24.2.2012.

According to PW-1 Mohan Lal, there is an apple orchard over Khasra No. 778 and, on its boundary, Mohroo trees are standing and defendants have illegally lopped the same on 24.2.2012.

PW-2 Het Ram deposed that plaintiff is owner in possession of Khasra No. 778. Apple orchard is existing on Khasra No. 778. There are Ban and Mohroo trees on the suit land adjoining to Khasra No. 775 and Khasra No. 777. Defendants illegally cut and lopped branches of Mohroo trees on 24.2.2012.

PW-3 Maninder Singh has deposed that there is an apple orchard over Khasra No. 778. On the corner, there are Mohroo and Baan trees. Land of the defendants is on upper side of the suit land. On 24.2.2012, defendants illegally lopped trees.

Defendant No. 1 appeared as DW-1. He deposed that no Mohroo trees were existing on the suit land. Trees are existing on Khasra No. 775, which was in his possession for the last 40 years. Defendants have placed on record copy of Misal Hakiyat for the year 1998-99 Ext. D10. According to this entry old Khasra number was shown as 294. Nature of the land is Banjar Kadeem. DW-1 in his cross-examination admitted that in the old Khasra number of the suit land, there were no trees and it was Banjar Kadeem. However, fact of the matter is that apple plants were planted only in the year 2004. Plaintiff has failed to prove that Mohroo trees are existing on the boundary. PW-1 has deposed in his cross-examination that demarcation was carried out, however, copy of the same was not placed on record. Plaintiff has also filed application under Order 41 Rule 27 for placing on record copy of demarcation report by Assistant Collector 1st Grade dated 6.9.2014.

It is settled law by now that additional evidence can not be permitted to be adduced just to fill up lacunae and to patch up weak points in the case.

Their lordships of the Supreme Court in Malayalam Plantations Ltd. Vs. State of Kerala and Another, have held as under:

"17. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case."

Their lordships of the Hon''ble Supreme Court have held in Union of India (UOI) Vs. Ibrahim Uddin and Another, that it is not the business of the appellate Court to supplement evidence adduced by one party or the other in the lower Court. In the absence of satisfactory reasons for the non-production of evidence in the trial Court, additional evidence should not be admitted in appeal as a party being guilty of remissness in trial Court is not entitled to indulgence of being allowed to give further evidence in the suit. Their lordships have also held that Order 41 Rule 27 of the Civil Procedure Code does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such an evidence it can pronounce judgment in a case. Appellate Court should not ordinarily allow new evidence to be adduced to rise new points in appeal. Similarly, where party on whom onus to prove a certain point lies, fails to produce evidence, he is not entitled to further opportunity to produce evidence as the Court in such cases can pronounce judgment against him and does not require any additional evidence to pronounce the judgment. Their lordships have held as under:

"36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself.

The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment.

Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence.

It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal."

Accordingly, there is no substantial question involved in the appeal and same is dismissed. Pending applications, if any, are also disposed of.