Sukhdev Singh vs Bakha Singh and Others

L.N. Mittal, J.—Learned Counsel for the petitioner inter alia contends that mutations Nos. 3918 and 3967 regarding sale of 10 kanals land by Sant Kaur are not relevant and admissible in evidence as the said sales are not in dispute because Sant Kaur had 18 kanals 02 marlas land, out of which, she sold 10 kanals land and the suit land involved in the present litigation is 08 kanals out of 08 kanals 02 marlas land left with Sant Kaur after the said sales. It is also contended that mortgage of 10 kanals land by Sant Kaur in favour of wife of the plaintiff-petitioner is also not in dispute and therefore, documents relating to redemption thereof, sought to be produced by additional evidence, are irrelevant.

Notice of motion to respondents Nos. 5 to 7 only.

Mr. Parminder Singh, Advocate accepts notice on behalf of respondents Nos. 5 to 7.

I have heard learned Counsel for the parties and the revision petition is being disposed of today itself on their request.

Plaintiff Sukhdev Singh has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 13.09.2010 (Annexure P-4) passed by learned Additional District Judge, Karnal, thereby partly allowing two applications for additional evidence moved in first appeal which has been preferred by respondents Nos. 5 to 7 herein.

Suit filed by the petitioner stands decreed by the trial court vide judgment and decree dated 16.04.2010. Respondents Nos. 5 to 7 herein, who were defendants Nos. 3 to 5 in the trial court, have preferred first appeal against the said judgment and decree. During pendency of first appeal, the said appellants moved two applications for additional evidence, which have been allowed by the lower appellate court by impugned order except that examination of documents'' expert as witness has been denied.

Petitioner-plaintiff sought specific performance of the agreement to sell dated 10.11.2000 allegedly executed in his favour by defendant No. 2 Sant Kaur through her son defendant No. 1 Bakha Singh as her attorney regarding 08 kanals land in suit. Defendants Nos. 3 to 5 (appellants in the lower appellate court and respondents Nos. 5 to 7 herein) have pleaded that defendants Nos. 1 and 2 have executed agreement dated 03.07.2000 in their favour regarding the suit land and sale deed dated 20.04.2001 has already been executed in their favour and they are bona fide purchasers of the suit land.

Defendants Nos. 3 to 5/appellants in the lower appellate court sought to produce mutations Nos. 3918 and 3967 by way of additional evidence regarding sale of 10 kanals land by defendant No. 2 Sant Kaur. The said additional evidence has been allowed by the lower appellate court. However, the said additional evidence is not relevant for the controversy to be adjudicated in the case. Sant Kaur was owner of 18 kanals 02 marlas land, out of which she sold 10 kanals land and was left with 08 kanals 02 marlas land, out of which plaintiff-petitioner claimed 08 kanals only. Sale of aforesaid 10 kanals land by Sant Kaur, to which mutations Nos. 3918 and 3967 relate, is not in dispute and stands admitted by both the parties. Consequently, the said mutations have no bearing on the controversy to be adjudicated in the lis and therefore, the said proposed additional evidence is completely irrelevant and inadmissible in evidence. Even learned Counsel for respondents Nos. 5 to 7 could not advance any meaningful argument to depict that the said mutations are relevant for the adjudication of the lis in any manner. In second application moved by defendants Nos. 3 to 5 in the lower appellate court, handwriting and finger print expert was sought to be examined, which request had been declined. By the same application, they also wanted to produce copy of redemption order passed by Collector, copy of sanction order of mutation regarding redemption of mortgage, application moved by plaintiff-petitioner for withdrawal of mortgage money and order regarding issuance of refund voucher of the said money, mutation of mortgage and Power of Attorney and also cancellation mutation of the mortgage. However, these documents are also not relevant for adjudication of the controversy involved in the pending first appeal. Admittedly, Sant Kaur had mortgaged 10 kanals land with wife of the plaintiff-petitioner. Defendants Nos. 3 to 5, during pendency of the suit, claimed to have redeemed the said mortgage and the documents sought to be produced relate to the said redemption and other consequent actions. However, the said mortgage is also not in dispute and stands admitted by both the courts below. Consequently, redemption thereof has no relevance for adjudication of the first appeal. At the risk of repetition, it has to be highlighted that subject matter of the suit is 08 kanals land. Learned Counsel for respondents Nos. 5 to 7 (defendants Nos. 3 to 5) contended that Sant Kaur was left with 08 kanals 02 marlas land, but she mortgaged 10 kanals land. However, even if it be so, the said point is not relevant for the adjudication of pending first appeal, in which dispute is relating to 08 kanals land, of which Sant Kaur was admittedly the owner. Moreover, even if Sant Kaur had mortgaged land in excess of her share, the said mortgage has been redeemed by respondents Nos. 5 to 7/defendants Nos. 3 to 5 themselves. Consequently, the said question pales into insignificance and is left with no relevance at all. Even otherwise, it was not relevant for the adjudication of the pending first appeal.

For the reasons aforesaid, I find that the impugned order is unsustainable because the additional evidence allowed by the lower appellate court is not relevant for disposal of the pending first appeal. The impugned order, therefore, suffers from jurisdictional error and is liable to be set aside in exercise of revisional jurisdiction under Article 227 of the Constitution of India.

For the reasons aforesaid, the instant revision petition is allowed and impugned order Annexure P-4 passed by the lower appellate court is set aside and both applications moved by respondents Nos. 5 to 7 herein (appellants in the lower appellate court) for additional evidence stand dismissed.

However, nothing in this order shall have any bearing on the merits of pending first appeal.