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2004 DIGILAW 1117 (PAT)

Vijay Kumar Jain v. Shakuntala Devi

2004-11-04

NAGENDRA RAI

body2004
Judgment 1. This revision is directed against the order dated 9.6.2003, passed by the appellate court in exercise of the power under Order XLI Rule 27 of the Code of Civil Procedure (for short the Code) allowing the prayer of the plaintiff-opposite party for appointment of a Survey knowing Pleader Commissioner to measure the disputed land being part of Plot no. MS 14671 as well as neighbouring Plot no. 14669 north of the plot belonging to the District Board, Gaya. 2. The plaintiff-opposite party filed a suit for removal of encroachment and lost before the trial court, against which she filed an appeal and when the appeal was posted for judgment before the appellate court, she filed an application under sections 107 and 75, read with Order XXVI Rule 9 of the Code for appointment of a survey knowing Pleader Commissioner to measure the plot in question to find out the encroachment, which has been allowed by the appellate court by the impugned order. 3. Admittedly, the land belongs to the plaintiff, which was gifted by her mother. On 28.11.1997, she sold by three saledeeds to the defendants, which have been shown in the map annexed with the plaint. 4. The plaintiffs case is that though according to the sale-deed, on the northern boundary, the land of the District Board is shown, the defendants left 7-8 feet of land on the northern side and encroached the land of the plaintiff in the south. The trial court, as stated above, did not accept the case and dismissed the suit. 5. The appellate court heard the argument and at the time of judgment noticed that it was not in a position to pronounce the judgment in the absence of the report of a survey knowing Pleader Commissioner, specially when the trial court had observed that a survey knowing Pleader Commissioner would have been appointed in this case for a proper decision. 6. The case of the defendant-respondent-petitioners, on the other hand, is that there is no encroachment and the land, which has been left in the northern side, is a land used for Nala. 6. The case of the defendant-respondent-petitioners, on the other hand, is that there is no encroachment and the land, which has been left in the northern side, is a land used for Nala. The order has been assailed by the petitioners on the ground that the appellate court has filled up the lacuna in the case of the plaintiff by allowing the prayer for appointment of a survey knowing Pleader Commissioner, whose appointment was not at all necessary to pronounce the judgment. 7. Learned counsel appearing for the plaintiff-appellant-opposite party, on the other hand, submitted that the lower appellate court has exercised the power under Order XLl Rule 27(1)(b) of the Code as it found that the report of the survey knowing Pleader Commissioner was necessary to enable it to pronounce the judgment. 8. This Court in revision will not interfere with the discretion exercised by the appellate court. Under Order XLI Rule 27 of the Code, the power of production of additional evidence in appellate court can be exercised in three circumstances; firstly where the Court from whose decree the appeal has been preferred, has refused to admit evidence, which ought to have been admitted; secondly the party, who intends to produce the additional evidence, satisfies the appellate court that such evidence was not within his knowledge notwithstanding the exercise of due diligence or could not, even after exercise of due diligence, be produced before the trial court; and thirdly the document is required by the appellate court to enable it to pronounce the judgment or for a substantial cause. 9. In the case of Arjan Singh V/s. Kartar Singh, reported in A.I.R. (38) 1951 Supreme Court 193, the Apex Court held that the true test is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. 10. In the case of Syed Abdul Khader V/s. Rami Reddy, reported in A.I.R. 1979 Supreme Court 553, it has been held that if the appellate court finds a document to enable it to pronounce judgment, even when the lacuna or defect in the evidence is on the record, it may admit the same as additional evidence. 11. 10. In the case of Syed Abdul Khader V/s. Rami Reddy, reported in A.I.R. 1979 Supreme Court 553, it has been held that if the appellate court finds a document to enable it to pronounce judgment, even when the lacuna or defect in the evidence is on the record, it may admit the same as additional evidence. 11. In the present case, the appellate court found that even the trial court has not been able to pronounce the judgment on the ground of lack of evidence of the survey knowing Pleader Commissioner. The appellate court also found that to appreciate as well as to find out as to whether there is encroachment or not, the measurements of two plots are necessary and as such the appellate court observed that to pronounce the judgment, it is necessary to have the examination of a survey knowing Pleader Commissioner. Thus, the appellate court has rightly exercised the power under Order XLI Rule 27(1)(b) of the Code. 12. In the result, I find no reason to interfere wit the discretion exercised by the appellate court and this revision application is, accordingly, dismissed.