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2011 DIGILAW 1451 (RAJ)

Mohan Puri v. Masjid Committee

2011-07-21

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This execution second appeal has been filed by the objector for execution of decree passed as far back as 24.11.1961. The application under Section 47 read with Section 151 of CPC was rejected by the learned executing Court vide order dated 20.1.1979 and appeal filed thereagainst was also dismissed by learned Additional District Judge No. 2, Ajmer vide order dated 11.3.2011. Both the Courts concurrently held that objector-appellant miserably failed to prove by lead of any evidence the fact that he was residing in the suit property for last 20-25 years. 2. Shri Mahendra Goyal, learned counsel for the appellant has argued that the appellant could not at the time of filing of objection before the executing Court and at the time of first appeal before the Additional District Judge, despite exercise of due diligence, produce the documents of his possession over the suit property. In this connection, he sought to produce certain additional documents with an application under Order 41 Rule 27 of CPC. The documents include the passport of his father, a letter addressed to his father by Managing Officer, Officer of the Settlement Officer, Ministry of Rehabilitation, Government of India dated 4.9.1958 and 22.9.1961. Learned counsel for appellant has argued that both the Courts have in their judgments observed that the objector failed to produce either any ration card or voting list etc. to show that he was in possession of the disputed property. It is argued that though the finding about the possession of property is a finding of fact, but nevertheless these documents would be necessary to enable this Court to pronounce judgment of this appeal. Learned counsel in support of his arguments relied on the judgment of this Court in Ramnath vs. Roopchand & Ors., AIR 1956 (Raj.) page 1 = 1956 RLW 117 and that of the Jammu and Kashmir High Court in Kartar Chand and Anr. vs. Sheelo Devi & Ors. 2010(2) JKJ 299. 3. Per contra, Shri Amod Kasliwal, learned counsel appearing for respondent-plaintiff-decree holder argued that this is an execution second appeal. Objector/appellant cannot seek to fill in the lacunaes by now producing certain documents to set the clock at naught. This cannot be permitted in the scope of second appeal, much less in execution second appeal. 2010(2) JKJ 299. 3. Per contra, Shri Amod Kasliwal, learned counsel appearing for respondent-plaintiff-decree holder argued that this is an execution second appeal. Objector/appellant cannot seek to fill in the lacunaes by now producing certain documents to set the clock at naught. This cannot be permitted in the scope of second appeal, much less in execution second appeal. Learned counsel argued that the objector did not even file any such document in his appeal before the Additional District Judge filed under Order 21 Rule 103. He only seeks to prolong his possession of the disputed premise. This is being done at the instance of original defendant because it is the original defendant who has set up the appellant and put him in possession of the disputed property, when he lost the suit. 4. Shri Amod Kasliwal, learned counsel referred to the statement of objector Mohanpuri before the executing Court as Ob. W.1 and submitted that in the cross-examination, he categorically stated that he was not aware whether the house was registered in his name or in his father's name and that also he was not aware who was the owner of this house. He never made any effort to enquire this fact from his father. He also pleaded ignorance about the fact whether ration card is issued to them on the address of this house. Although he denied the allegation that their family was put in possession of this house by the defendant-Sadhu Ram, who lost the suit. Learned counsel referred to the statement of ObW-2 Dheeru Mal, who in cross-examination stated that although he heard that house belongs to plaintiff/decree holders but he was not aware whether or not objector purchased this house. Learned counsel argued that plea that was set up by the objector-appellant before the executing Court was that of adverse possession, whereas he could not prove this plea by any evidence and the finding recorded by both the Courts on this plea is essentially a finding of fact, which is not open to interfere in the scope of second appeal. The appeal does not raise any substantial question of law, therefore, it is liable to be dismissed. Learned counsel also opposed the application under Order 41 Rule 27 CPC and citing the judgement of Supreme Court in State of Gujarat & Anr. The appeal does not raise any substantial question of law, therefore, it is liable to be dismissed. Learned counsel also opposed the application under Order 41 Rule 27 CPC and citing the judgement of Supreme Court in State of Gujarat & Anr. vs. Mahendra Kumar Parshottambhai- AIR 2006 SC 1864 , argued that a similar belated plea was rejected by the Supreme Court and it was held that it was intended to only fill up lacunaes. 5. On hearing learned counsel for the parties and perusing the material on record, I find that the original civil suit out, of which the decree in which the suit for eviction was filed against one Sadhu Ram, was of the year 1950. The decree in that suit was passed on 24.11.1961 and objection to execution of the said decree were filed by the objector-appellant in response to the notice served upon him by the executing Court under Order 31 Rule 35. Both the Courts below concurrently held that the appellant could not show his prolonged possession so as to prove his claim of adverse possession. This is a mere finding of fact. Even though this finding may have been recorded in an execution proceeding, nevertheless this is a finding of fact. Both the Courts concurrently held that objector did not produce any evidence like ration card, voter list etc. to show that he was continuously residing in disputed premises for a long period. The executing Court observed that since objector did not produce those documents, an inference can be drawn that he does not possess such documents and his name was not in the voter list of that area. Those documents have not been produced even now with this application under Order 41 Rule 27 but certain other documents have been sought to be produced. No mention of such documents was made either before the executing Court or before the first Appellate Court in execution appeal. This is for the first time that before this Court, such documents are sought to be produced. The enormous delay in producing the documents now at this stage of execution second appeal reflects very poorly on the part of the objector-appellant that he failed to exercise due diligence that such documents were not within his knowledge or could not be produced by him despite exercise of due diligence at the earliest available opportunity. 6. The enormous delay in producing the documents now at this stage of execution second appeal reflects very poorly on the part of the objector-appellant that he failed to exercise due diligence that such documents were not within his knowledge or could not be produced by him despite exercise of due diligence at the earliest available opportunity. 6. The Supreme Court in Basayya I. Mathad vs. Rudrayya S. Mathad & Ors. (2008) 3 SCC 120 held that parties to the lis are not entitled to produce additional evidence as a matter of course or routine. For the said purpose, they must satisfy the conditions stated in sub-clause (a) and (aa). The finding on the basis of documents produced at the time of arguments dehors Order 41 Rule 27 could not be sustained in the eye of law. 7. Similarly, in K.R. Mohan Reddy vs. Network Inc. represented through MD- (2007) 14 SCC 257 , it was held by the Supreme Court that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 are different from that of clause (b). When the former is applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. If, however, clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the Appellate Court is bound to consider entire evidence on record. Relying on the earlier judgment of Supreme Court in Municipal Corporation of Greater Bombay vs. Lala Pancham- AIR 1965 SC 1008 , their Lordships observed that though the Appellate Court has the power to allow a document to be produced and a witness to be examined under that provision, but the requirement of the said Court must be limited to those cases where the Court finds it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the Appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellant Court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. 8. This provision does not entitle the Appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellant Court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. 8. In view of settled proposition of law as noticed above, documents sought to be produced on record by recourse to sub-clause (b) of Rule 27(1) of Order 41 on the plea that it would enable the Appellate Court to pronounce judgement cannot be allowed by completely ignoring sub-clause (bb) that appellant has failed to establish "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. "Doing so would defeat the very purpose of such a safeguard deliberately introduced by the amendment of CPC by Parliament and would become a tool in the hands of unscrupulous litigants to indefinitely delay finalization of the proceedings in a civil Court. 9. In view of what has been discussed above, the appeal is dismissed.