Nika Singh vs Gajja Singh

R.N. Mittal, J.—This is a Regular Second Appeal by the defendant against the judgment and decree of the District Judge, Sangrur, dated November 4, 1968, affirming the judgment of the trial Court, whereby the suit had been decreed.

Briefly, the case of the plaintiff is that the property in dispute belonged to Smt. Chand Kaur and she gifted it to him vide gift deed dated August 16, 1952. After the gift, he had been in its possession. It is alleged that the defendant wanted to make some construction on it, which he could not do. Therefore, it is prayed that the defendant may be restrained from doing so. The suit was contested by the defendant who pleaded that he was the owner of the property in dispute as ho had purchased it from the Custodian Evacuee Property He also denied that any gift was made by Smt Chand Kaur in favour of the plaintiff.

The trial Court held that the property was gifted by Smt. Chand Kaur in favour of the plaintiff and that the defendant had failed to prove that he purchased it from the Custodian Consequently, it decreed the suit of the plaintiff. The defendant went up in appeal before the District Judge, Sangrur, who affirmed the judgment and decree of the trial Court and dismissed the same. He has came up in second appeal to this Court.

During the pendency of the appeal, the appellant filed an application under Order 41, Rule 27 of the CPC praying that a copy of the order of Nizamat Barnala dated 30th Bhadron, 1991 BK be taken on the record. It is further stated that it is proved from the said document that the property had been gifted away by Smt. Chand Kaur, wife of Hukam Chand and Santoo son of Krishan Singh to Habib and Mustan sons of Midhi about 26 yean ago and the latter migrated to Pakistan. The application has been opposed by Mr. Sarin, learned counsel for the respondent.

Order 41, Rule 27 of the CPC provides that the parties to an appeal may be allowed to produce additional evidence, if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the Appellate Court requires any document to be produced to enable it to pronounce judgment or for any other substantial cause. In the present case, the counsel for the appellant has not been able to show as to why this document was not produced in the trial Court or the first Appellate Court. No sufficient reasons have been made out to allow him to produce the document at this stage I have also gone through the document and find that it cannot be held that it relates to the property in dispute. In this situation, in my view, the appellant cannot derive any benefit from it. Consequently, the application is liable to be dismissed.

Only two questions arise in the present case. Firstly, whether the plaintiff got the property in gift from Smt. Chand Kaur and secondly whether the defendant purchased the plot in dispute from the Custodian Evacuee Property. Both the questions have been decided by the Courts below against the appellant after taking into consideration the evidence on the record. The questions involved are those of facts and they cannot be interfered with by the Appellate Court unless it is shown that the findings are vitiated. The counsel for the appellant has not been able to satisfy me that the finding was, in any way, vitiated. Therefore, there is no scope for interference with the judgment and decree of the Courts below.

For the reasons recorded above, the appeal fails and the same is dismissed with no order as to costs. The application also stands dismissed.