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2003 DIGILAW 918 (PNJ)

Gurdial Singh v. Rashpal Kaur

2003-07-09

VINEY MITTAL

body2003
JUDGMENT Viney Mittal, J. - In view of the law laid down in the case of Shiv Shakti Coop. Housing Society Nagpur v. M/s. Swaraj Development and others, JT 2003(4) SC 255 the revision petition filed by the petitioner under Section 115 CPC is not maintainable. 2. Faced with this difficulty, the learned counsel submits that the present revision petition be treated as petition under Article 227 of the Constitution of India. The prayer made by the learned counsel is allowed. 3. The plaintiff is the petitioner. He has impugned the order dated July 18, 1996 passed by the learned Additional District Judge, Kapurthala whereby an application filed by the petitioner under Order 41 rule 27 CPC has been dismissed. 4. The plaintiff-petitioner has filed a suit for joint possession. He is claiming ownership on the basis of a Will dated February 14, 1974 alleged to have been executed by Kartar Singh. Additionally, it was pleaded that the property in dispute was ancestral and, therefore, he was entitled to succeed to the same on the basis of the natural succession. 5. The learned trial Court vide judgment and decree dated August 19, 1992 dismissed the suit filed by the plaintiff. It was held that the Will set up by the plaintiff was not proved. Additionally, it was held that the plaintiff had failed to prove that the property in dispute was ancestral since he had not produced the necessary revenue record. 6. During the course of appeal before the learned first appellate Court, the plaintiff filed an application under Order 41 rule 27 CPC. By way of additional evidence, the plaintiff sought to produce a copy of mutation of inheritance of Jawand Singh, common ancestor of the parties and the pedigree table. 7. The aforesaid application was contested by the defendant-respondents. After hearing the learned counsel for the parties, the learned Additional District Judge vide his impugned order rejected the prayer made by the present petitioner. Now the present petitioner has chosen to file a revision petition challenging the aforesaid impugned order before this Court. 8. No one has chosen to appear on behalf of the respondents, despite service. 9. I have heard Shri Kanwaljit Singh, the learned counsel for the petitioner. 10. Now the present petitioner has chosen to file a revision petition challenging the aforesaid impugned order before this Court. 8. No one has chosen to appear on behalf of the respondents, despite service. 9. I have heard Shri Kanwaljit Singh, the learned counsel for the petitioner. 10. Shri Kanwaljit Singh, the learned counsel for the petitioner has submitted that in fact the plaintiff-petitioner merely wanted to produce the old revenue record which was not traceable while PW.6, the revenue clerk, had appeared earlier. However, the aforesaid revenue record has been traced now and, therefore, the same should have been permitted to be produced by the learned first appellate Court. Shri Singh has further submitted that in fact the said revenue record was authentic inasmuch as there is no question of tampering with the same. 11. After hearing given my thoughtful consideration to the entire matter, I find that the present revision petition deserves to succeed. 12. Since the additional evidence sought to be produced by the plaintiff was merely the mutation and the pedigree table, which was merely old revenue record therefore, no prejudice would have been caused to the defendant- respondents if the same would have been permitted to be adduced as additional evidence by the learned first appellate Court. In fact, the learned first appellate Court has merely gone into the question of the relevance of the aforesaid evidence. The question of the relevance of the aforesaid evidence was not a question which should have been taken into consideration, at this stage. 13. From the issues framed by the learned trial Court, it is apparent that a specific issue with regard to the nature of the land being ancestral or otherwise was a question to be determined by the learned first appellate Court. 14. Accordingly, the present petition is allowed and the order dated July 18, 1996 passed by the learned Additional District Judge is set aside. The application filed by the plaintiff petitioner for leading additional evidence is allowed. The plaintiff-petitioner would be merely permitted to tender into the evidence the aforesaid documents. No oral evidence would be permitted to the plaintiff-petitioner in support of the aforesaid evidence. Thereafter, the defendant-respondents would be at liberty to rebut the aforesaid evidence. The revision petition is allowed, with the above observations, subject to payment of Rs. 5,000/- as costs. The plaintiff-petitioner would be merely permitted to tender into the evidence the aforesaid documents. No oral evidence would be permitted to the plaintiff-petitioner in support of the aforesaid evidence. Thereafter, the defendant-respondents would be at liberty to rebut the aforesaid evidence. The revision petition is allowed, with the above observations, subject to payment of Rs. 5,000/- as costs. The payment of costs would be a condition precedent to permit the petitioner to lead the additional evidence. Revision allowed.