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2004 DIGILAW 588 (PNJ)

Gurdial Singh v. Joga Singh

2004-05-19

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - Joga Singh, plaintiff-respondent filed a suit through his attorney-mother, Smt. Mango against his brother Gurdial Singh for separate possession of 5/12th share of the property in dispute. The case set up by the plaintiff-respondent is that the property in dispute was owned by Mehar Chand and Dogar in equal share, Dogar executed a will in favour of the plaintiff and defendant No. 1. After the death of Dogar, his share was inherited by the plaintiff and defendant No. 1 to the extent of 1/4th share out of the total property. Thereafter, Mehar Chand also died and the plaintiff inherited 1/6th share from the property of Mehar Chand. The further case of the plaintiff is that defendant No. 2, Jeeto, is the widow of their third brother, namely, Sadhu. After the death of Sadhu, Jeeto and Gurdial Singh were living as husband wife and were not allowing the plaintiff to make use of the joint property and, therefore, he filed a suit for separate possession by way of partition. 2. The suit was contested by the appellant-defendant and he controverted the allegations that the joint property has already been partitioned many years back and pleaded that the property mentioned at No. 1 fell to the share of the plaintiff-respondent while the property described at serial (b) became their ownership. They further pleaded that they are owners of 2/3rd share i.e eastern side of the property described at serial No. (c). However, it was admitted that at one time the suit properties were jointly held by their father, Mehar Chand and uncle Dogar. The execution of the Will by Dogar, as per allegation in the plaint, was also admitted but the suit was also opposed on so many technical grounds taken by the defendant-plaintiff. 3. On the pleadings of the parties, the following issues were framed :- "1. What are the shares of the parties in the property in dispute ? OPP 2. Whether the boundaries given by the plaintiff are wrong ? If so what are its correct boundaries ? 3. Whether the suit is bad for partial partition ? If its effect ? OPD 4. Whether this Court has jurisdiction as regards the site plan (c) attached with the plaint ? OPD 5. Whether the plaintiff is estopped from claiming his share as 5/12th as alleged ? OPD 6. If so what are its correct boundaries ? 3. Whether the suit is bad for partial partition ? If its effect ? OPD 4. Whether this Court has jurisdiction as regards the site plan (c) attached with the plaint ? OPD 5. Whether the plaintiff is estopped from claiming his share as 5/12th as alleged ? OPD 6. Whether the suit is not valued for the purposes of court fee and jurisdiction ? OPD 6-A. Whether there was an oral partition of the ownership and title between the parties after the death of Dogar, Mehru and Sadhu ? If so to what effect ? OPD 6-B. Whether a memorandum of partition was executed on 27.5.1974 by Mango as Mukhtar-am of the plaintiff ? OPD 6-C. Whether the defendants have raised construction of the southern side of the property shown as B in the site plan ? If so of what value and to what extent ? OPD 7. Relief." 4. The learned trial Court, after recording the evidence of the parties, decreed the suit in favour of the plaintiff vide judgment and decree dated 15.12.1980 and held that he is entitled to 5/12th share of the properties described in the title of the plaint by partition, aggrieved by which the defendant-appellant filed an appeal before the learned Additional District Judge, Hoshiarpur. The said appeal was dismissed vide judgment and decree dated 10.10.1983. 5. Dissatisfied with the judgment and decree dated 10.10.1983 passed by the learned Additional District Judge, Hoshiarpur, the appellant has filed the present Regular Second Appeal. 6. After hearing learned counsel for the appellant, I am of the considered view that the judgments and decrees passed by the courts below are based upon the evidence and the concurrent finding of fact recorded by the courts below do not warrant any interference. 7. The plaintiff has set up a case that the property has been partitioned in the year 1958 and the memorandum of partition, Ex. DW-7/A was prepared on 27.5.1974 and on behalf of the plaintiff, Mango, mother of the plaintiff, has signed the same. Mango had appeared in the suit as DW amd she deposed that the property in dispute is a joint one. No doubt, Smt. Mango, attorney of the plaintiff-respondent, admitted her thumb impression on Ex. DW7/A but the lower Appellate Court, after perusing the document, Ex. Mango had appeared in the suit as DW amd she deposed that the property in dispute is a joint one. No doubt, Smt. Mango, attorney of the plaintiff-respondent, admitted her thumb impression on Ex. DW7/A but the lower Appellate Court, after perusing the document, Ex. DW7/A has rightly observed 0as under :- "Though Smt. Mango has admitted has thumb impression on Ex. DW7/A but a doubt has casted upon the genuineness of the document. Shri Satwant Singh, Naib Subedar, PW8 deposed from the record brought by him that Pritam Singh an attesting witness of Ex. DW7/A was serving in the Army on 27.5.1974 and he had not come on leave. According to his evidence the signature of Pritam Singh on Ex. DW-7/A could not be obtained on 27.5.1974. Thus, the genuineness of this document is not free from doubt. Be that as it may, one thing is clear that this memorandum of partition was not binding upon Joga Singh." 8. It is clear from the above fact that the appellant has created a document to show that the property has been partitioned. However, a man can tell lie but not the document. The evidence of PW-8 makes it abundantly clear that Pritam Singh, one of the signatory to DW7/A was in the army on the day when it is alleged to have been executed. Therefore, this document is a fictitious one and no reliance can be placed on the same. 9. The appellant had also moved an application under Order 41 Rule 27 CPC to prove that there was a general power of attorney executed by plaintiff, Joga Singh, in favour of his mother, Mango, and on the basis of that power of attorney, she had signed on the memorandum of partition. It has already been held that the memorandum of partition is a fictitious document as the attesting witness to the same was not present on the date when it was executed. Otherwise also, the application was moved by the appellant just to delay the proceedings. The application under Order 41 Rule 27 can only be allowed if the following ingredients are fulfilled :- "27. Production of additional evidence in Appellate Court :- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. The application under Order 41 Rule 27 can only be allowed if the following ingredients are fulfilled :- "27. Production of additional evidence in Appellate Court :- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 10. The document, which the appellant wanted to produce, was already in his knowledge. He has not given any explanation as to why this document was not produced at the earlier point of time. Otherwise also, this document is not necessary for proper adjudication of the case. Therefore, the application moved by the applicant under Order 41 Rule 27 CPC was rightly dismissed. For the reasons mentioned above, there is no merit in the appeal and the same is, therefore, dismissed. Appeal dismissed.