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2010 DIGILAW 252 (ALL)

Mohar Singh v. Bhagwan Das

2010-01-21

KRISHNA MURARI

body2010
JUDGMENT Hon'ble Krishna Murari, J. Heard learned counsel for the petitioner. 2. Suit filed by the plaintiffs-petitioner for permanent injunction to restrain the defendants-respondent from interfering over the suit property or to interfere in raising construction over the same was dismissed by the trial court vide judgment and decree dated 12.4.2002 on the finding that plaintiffs-petitioner have failed to establish that the suit property described in the plaint was of plots no. 503, 504 and 507 of which they claim to be Bhumidhar. The plaintiffs-petitioner went up in appeal. During the pendency of the appeal, an application dated 31.07.2009 was filed under order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short the 'Code) to take on record sale deeds by which they purchased the suit property as additional evidence. Another application of date was moved with the prayer to issue survey commission to inspect the suit property and submit a report. Lower appellate court vide impugned order dated 24.08.2009 has dismissed both the applications. 3. In so far as the application under Order XLI Rule 27 of the Code is concerned, the same has been rejected on the ground that since there is no dispute with respect to rights and title of the plaintiffs in plot no. 503, 504 and 507 as such there was hardly any necessity to accept the sale deed as additional evidence at this belated stage. In so far as issuance of survey commission is concerned, the court below rejected the application on the ground that commission was issued by the trial court who after making spot inspection submitted report and found that defendants-respondent were in possession over the same. The said report was also confirmed and after the appeal remained pending more than seven years, there was no justification to issue survey commission and re-open the entire proceedings from the stage of evidence between the parties. 4. Learned counsel for the petitioner has urged that in the absence of additional evidence being taken on record and the report of survey commission, the suit cannot be decided effectively between the parties. 5. It has further been urged that in view of the judgment of the Hon'ble Apex Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by L. Rs. - 2008 All. 5. It has further been urged that in view of the judgment of the Hon'ble Apex Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by L. Rs. - 2008 All. Civil Journal 2337 additional evidence can be tendered and is liable to be accepted at any stage. 6. I have considered the arguments advanced by the learned counsel for the petitioner and perused the record. 7. Reliance placed by the learned counsel for the petitioner in the case of North Eastern Railway Administration, Gorakhpur (supra) is totally mis-founded and the arguments have been advanced by misreading the said judgment. The Hon'ble Apex Court has not held that additional evidence tendered at any stage of the proceedings is liable to be accepted. On the contrary, what has been held is that additional evidence has to be accepted if it falls within the four corners of Order XLI Rule 27 CPC. In the facts of the said case, the Hon'ble Apex Court while interpreting clause (b) of sub-section (1) of Rule 27, Order XLI C. P. C. held that additional evidence tendered at the stage of second appeal before the High Court was liable to be accepted. This is no such general law laid down as argued by the learned counsel for the petitioner that additional evidence tendered at any stage is liable to be accepted. 8. Since in the case in hand, the lower appellate court found that there was no dispute with regard to ownership and title of the plaintiffs-petitioner over the plots described in the plaint, the sale deed sought to be filed by way of additional evidence would be of no help in pronouncing the judgment rightly rejected the same. The plaintiffs-petitioner failed to make any application before the trial court for the same. On the contrary the commissioner report was confirmed which was also not challenged by him. 9. It is well settled that the litigant who has been unsuccessful in the lower court cannot be permitted to patch up the weak parts of his case and fill up omissions in the court of appeal. On the contrary the commissioner report was confirmed which was also not challenged by him. 9. It is well settled that the litigant who has been unsuccessful in the lower court cannot be permitted to patch up the weak parts of his case and fill up omissions in the court of appeal. As a matter of fact by getting the survey commission, the petitioner wanted to fill up the lacuna of his case and to generate the evidence which cannot be permitted and that too at the appellate stage and the court below has not committed any illegally in rejecting the application. 10. In view of the above, there is no scope for interference in the impugned order. The writ petition fails and accordingly stands dismissed.