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2009 DIGILAW 1692 (PNJ)

Ajay v. Surender Singh

2009-09-24

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal, is directed, against the judgment and decree, dated 10.05.05, rendered by the Court of Civil Judge (Junior Division), Jhajjar, vide which, it decreed the suit for declaration and permanent injunction of the plaintiffs (now respondents), and the judgment and decree, dated 31.03.08, rendered by the Court of Additional District Judge, Jhajjar, vide which, it dismissed the appeal. 2. The facts, in brief, are that the plaintiffs/respondents, claimed that they were in possession, over the land, in dispute, as non-occupancy tenants, under Smt. Sarjo Bila Lagaan Bawajah Derina. It was stated that the defendants forged a lease deed, purported to have been executed, by Smt. Ram Kaur, in respect of the land, in dispute. It was further stated that the lease deed, was illegal, void and inoperative, against the rights of the plaintiffs/respondents. It was further stated that the defendants had got no right, in the property, in dispute, on the basis of the said forged lease deed. They threatened to interfere into the possession of the plaintiffs, over the property, in dispute. They were many a time, asked not to do so. On their final refusal, to desist from their illegal designs, left with no other alternative, a suit for declaration and permanent injunction, was filed. 3. The defendants, put in appearance, and, filed written statement, wherein, they took up various objections, and contested the suit. It was denied that the plaintiffs/respondents, were non occupancy tenants, in the land, in dispute, under Smt. Sarjo. It was stated that Smt. Ram Kaur and others, were Dhoulidars, of the land, in dispute. They executed a lease deed, in favour of the defendants; in respect of the land, in dispute. It was further stated that the entries, in the name of plaintiffs/respondents, in the revenue record, were made in favour of the plaintiffs, in collusion with the revenue officials. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck :- (i) Whether the plaintiffs are tenants Gair Marusi in possession over the suit land as detailed in para No. 1 of the plaint ? OPP. (ii) Whether the defendants are illegally interfering into the peaceful possession of the plaintiffs over the suit land ? OPP. (iii) Whether the decree dated 18.2.1998 regarding the lease rights in favour of Rajender etc. OPP. (ii) Whether the defendants are illegally interfering into the peaceful possession of the plaintiffs over the suit land ? OPP. (iii) Whether the decree dated 18.2.1998 regarding the lease rights in favour of Rajender etc. is liable to be set aside being wrong, illegal, null and void and not binding on the possessory rights of the plaintiffs ? OPP. (iv) Whether the plaintiffs have no locus standi to file the present suit ? OPD. (v) Whether the suit of the plaintiffs is not maintainable in the present form ? OPD. (vi) Whether the plaintiffs are stopped estopped from filing the present suit by their act and condujct? OPD. (vii) Whether the suit of teh plaintiffs is bad for non-joinder of necessary parties and misjoinder of perties? OPD. (viii) Whether the plaintiffs have no cause of action to file the present suit ? OPD. (ix) Whether the defendants are entitled to special costs under Section 35-A C.P.C. ? OPD. (x) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit for declaration and permanent injunction of the plaintiffs/respondents. 6. Feeling aggrieved, an appeal was preferred, by Ajay, one of the defendants/appellant, which was dismissed by the Court of Additional District Judge, Jhajjar, vide judgment and decree dated 31.03.08. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant. 8. I have heard the Counsel for the parties, and have gone through evidence and record of the case, carefully. 9. The Counsel for the appellant submitted that the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, to the effect, that the defendants were not the lessees, in the land, in the dispute, and that the lease deed executed, in their favour, by Smt. Ram kaur, was a forged and fabricated document. He further submitted that an application under Order 41 Rule 27, for additional evidence, was filed, by the appellant, before the first Appellate Court, but the same was not decided, as a result whereof, a prejudice was caused to him. He further submitted that the judgments prejudice was caused to him. He further submitted that the judgments and decrees of the Courts below, being illegal, are liable to be set aside. 10. He further submitted that the judgments prejudice was caused to him. He further submitted that the judgments and decrees of the Courts below, being illegal, are liable to be set aside. 10. No doubt, an application, for additional evidence, under Order 41 Rule 27, was filed by the appellant, before the first Appellate Court, to produce an order dated 26.05.06, passed by the Assistant Collector, 2nd Grade, Beri, during the pendency of the lis. However, this application, was not decided, by the first Appellate Court. However, this Court, is competent, to decide the said application. It is to be determined, as to whether, the additional evidence, sought to be produced, vide the application, referred to above, was essential, for the decision of the case, or to enable the Court to pronounce the judgment, in a proper manner. The correction of Khasra Girdawari, was allegedly made by the Assistant Collector, 2nd Grade, Beri, during the pendency of the lis. Such correction, could not be taken into consideration, in view of the cogent and convincing documentary evidence, which had already been produced by the parties. The other evidence produced, by the parties, during the course of the trial of the case, was sufficient to decide the case. It was also sufficient to enable the Court to pronounce the judgment, in a proper manner. In Magan Lal Bhikam Chand Mehar v. Mul Chand Jawarmal Nuhar (dead) by LRs. and others in Civil Appeal No. 1325 of 1966, decided on 11.09.69, by the Apex Court, it was held that under Order XLI Rule 27 of the Code of Civil Procedure, a Court of appeal, may allow a document, to be produced, or witness be examined, to enable it, to pronounce the judgment, or for any other substantial cause. Additional evidence is allowed, to be produced, for the requirement of the Court, and not to enable a party, to make good a deficiency, in its case. By the rule, it is expressly enacted, that the parties to an appeal, shall not be entitled, to produce additional evidence, whether oral or documentary, in the Appellate Court. Additional evidence is allowed, to be produced, for the requirement of the Court, and not to enable a party, to make good a deficiency, in its case. By the rule, it is expressly enacted, that the parties to an appeal, shall not be entitled, to produce additional evidence, whether oral or documentary, in the Appellate Court. In Roshan Lal v. Ganpat and others 2000(1) RCR(Civil) 227 : 2000(2) Punjab Law Reporter, 39, it was held that under Order XLI Rule 27 of the Code of Civil Procedure, no party to the appeal, can be allowed, to lead an additional evidence, until and unless, it brings its case squarely, within the requisites of Order XLI Rule 27 of the Code of Civil Procedure, or the Appellate Court, comes to the conclusion, that for the just decision of the case, the same was required. On the mere wish of the litigant, the application, could not be allowed. The principle of law, laid down, in the aforesaid cases, is clear and unambiguous. No party, can be allowed, to lead additional evidence, in the appeal, just with a view to fill up the lacunae, left in its case. In this case, as stated above, the order was sought to be produced, by way of additional evidence, before the Ist Appellate Court, was passed during the pendency or the lis. 1 hat was not at all necessary for the just decision of the case. It was also not necessary to enable the Court to pronounce the judgment in a proper manner. The application under Order XLI Rule 27 of the Code of Civil Procedure, thus, being without merit, the same is dismissed. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. The application under Order XLI Rule 27 of the Code of Civil Procedure, thus, being without merit, the same is dismissed. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair v. Bhaskar Pillai (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh 2005(12) SCC 270, H.P. Pyarejan v. Dasappa, 2006(1) RCR(Civil) 646 :JT 2006(2), S.C. 228, and Gurdev Kaur and others v. Kaki and others 2006(2) RCR(Civil) 561: (JT 2006 (5) S.C. 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention is very clear that the legislature never wanted second appeal to become a "third trial on facts" or "one more dice in the gamble." It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The question that fell for determination, before the Courts below, was that, as to whether the plaintiffs, were in possession of the land, in dispute, and whether the lease deed, in favour of the defendants, was legal and valid. From the Jamabandies for the years 1990-91 Ex. P.l, 1995-96 Ex. P-4, and, Khasra Girdwaris from 10/96 to 10/97 Ex. P-2, and 10.06.98 to 23.04.01 Ex. P-5, clearly revealed that Gram Panchayat, was recorded, as the owner of the suit land. In the column of cultivation, the plaintiff/respondents, were recorded, in cultivating possession. The Gram Panchayat, the owner of owner of the suit land, was not added as a party to suit. Presumably, the Gram Panchayat, was not interfering into the possession of the plaintiffs/respondents, over the land, in dispute, nor it was trying to eject them therefrom. Presumption of truth, is attached to entries, contained in the Jamabandies, whereas, presumption of correctness, is attached to the entries, contained in the Khasra Girdawari, the same having been prepared, by the officials, in the discharge of their official duties. Presumption of truth, is attached to entries, contained in the Jamabandies, whereas, presumption of correctness, is attached to the entries, contained in the Khasra Girdawari, the same having been prepared, by the officials, in the discharge of their official duties. No doubt, the presumption attached to the entries, contained in the Jamabandi, and, the entries, contained in the Khasra Girdawari, is rebuttale. However, no cogent evidence, was produced, by the defendants, to rebut the entries. The defendants, had claimed, that a lease deed was executed in their favour by Smt. Ram Kaur, whereas, there was no evidence, to prove, that she was the owner in possession of the suit land. Since Gram Panchayat was the owner of the land, in dispute, and the plaintiffs/respondents, were recorded, to be in possession thereof any lease deed executed in favour of the defendants, by said Ram Kaur, could not create any right or interest, in their favour, in the property, in dispute. It is a settled principle of law, that a person, could not pass on a better title or interest, in the property, than he or she himself/herself had got, in the property, in dispute. The Courts below, were, thus, right, in holding that the plaintiffs/respondents, were in possession, of the property, in dispute; that the lease deed purportedly executed, by Ram Kaur, in favour of the defendants, was not legal and valid as she was neither the owner nor in possession of the property, in dispute, and that the plaintiffs/respondents, were entitled to the declaration and permanent injunction, as prayed for. The concurrent findings of fact, recorded by the Courts below, on the afore said points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgments and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellants, being without merit, is, thus, rejected. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs.