JUDGMENT : By way of this appeal, the appellants challenge the judgment and decree dated 02.11.2007, passed by the Court of learned Civil Judge (Junior Division), Court No. 2, Una, H.P. in Civil Suit No. 127/1998, titled as Gian Chand Vs. Ram Pal and others, in terms whereof a civil suit for declaration filed by the present appellants was dismissed by the learned Trial Court as also the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Una, District Una, H.P. in Civil Appeal No. 6/2008, dated 27.08.2009, titled as Gian Chand vs. Ram Pal and others, in terms whereof the appeal preferred by the appellants against the judgment and decree passed by learned Trial Court was dismissed. 2. This appeal was admitted by this Court on substantial questions of law No. 1, 2 and 3 given in the paper book, which are quoted as herein below:- “1. Whether there can be any tenancy over the land which is not fit for cultivation and to sustain the plea of tenancy the consent of the owner or payment of rent are minimum requirement to be proved by the tenant? 2. Whether the impugned judgments are vitiated on account of non-permitting the appellants/plaintiffs to place on record the affidavit executed by Shri Wattna, the predecessor-in-interest of the defendants affirming the fact that neither he nor his predecessor-in-interest cultivated the suit land? 3. Whether the document which is necessary for enabling Court to pronounce the judgment for advancing substantial cause and the Courts are obliged to permit the production of such document as additional evidence and non-production of such document has caused a great prejudice to the cause of the appellants?” 3. Brief facts necessary for the adjudication of this appeal are that one of the appellants, namely, Sh. Gian Chand filed a suit for declaration against the respondents herein in which other appellants were impleaded as proforma defendants for declaration that the plaintiff and proforma defendants No. 5 and 6 were owners in possession of land measuring 3 kanal 10 Marlas, bearing Khewat No. 502 min, Khatauni No. 626, Khasra No. 1776, as entered in jamabandi for the year 1984-86, situated in village Rampur, Tehsil and District Una, H.P. (hereinafter to be referred as the ‘suit land’). According to the plaintiff, entries in the name of predecessor-in-interest of the defendants were absolutely wrong, incorrect and against factual position on the spot. The consequential relief of permanent injunction for restraining the defendants from taking forcible possession of the suit land or part thereof was also prayed for. According to the plaintiff, he and proforma defendants were in possession of the suit land as owners and neither the defendants nor their predecessor in interest had any right, title or interest over the same. The predecessor-in-interest of the defendants, namely, Bhagwana had died 35 years back and after his death, Wattna son of Tulsi, had succeeded him as legal heir. Wattna executed an affidavit in which he stated that neither he nor Bhagwana, ever cultivated the suit land as tenant and entries in the name of Bhagwana are absolutely wrong and incorrect. Wattna died in the year 1994 and contesting defendants were his legal heirs. As per the plaintiff, the defendants on the basis of wrong revenue record were trying to take forcible possession of the suit land without any right to do so, despite repeated calls of the plaintiffs to desist from do doing so, they refused the request of the plaintiffs in this regard, which led to filing of the civil suit. 4. The suit was contested by the contesting defendants inter alia on the ground that neither the plaintiff nor the proforma defendants were owners in possession of the suit land. According to the defendants, Bhagwana, i.e. their predecessor-in-interest was coming in possession of the suit land as tenant on payment of rent for the last 50 years under the owners. After his death, father of the defendants, i.e. Wattna, succeeded the estate of Bhagwana and continued to cultivate the suit land as tenant on payment of rent, and thereafter became owners of the suit land by virtue of H.P. Tenancy and Land Reforms Act on the appointed day. As per the defendants, they succeeded the estate of their late father as owners in possession. According to them, there was no question of Wattna executing any affidavit as alleged by the plaintiff and the same was a result of fraud and perpetrated by the plaintiff in connivance with the interested persons. It was also the case of the defendants that the plaintiff had filed a correction application against Bhagwana, which was dismissed on 17.02.1998. According to them, there was no question of Wattna executing any affidavit as alleged by the plaintiff and the same was a result of fraud and perpetrated by the plaintiff in connivance with the interested persons. It was also the case of the defendants that the plaintiff had filed a correction application against Bhagwana, which was dismissed on 17.02.1998. On these bases, the defendants resisted the suit. 5. On the basis of pleadings of the parties, learned Trial Court framed the following Issues:- 1. Whether the plaintiff and proforma defendants No. 5 and 6 are owners in possession of the suit land as prayed? OPP 2. Whether the plaintiff is entitled for the relief of declaration as prayed? OPP 3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiff has no locus-standi? OPD 6. Whether this Court has jurisdiction? OPD 7. Whether the suit is within limitation? OPD 8. Whether the plaintiff is stopped to file the present suit due to his own acts and conduct? OPD 9. Relief. 6. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues so framed were answered by the learned Trial Court as under:- Issue No. 1 No Issue No. 2 No Issue No. 3 No Issue No. 4 Yes Issue No. 5 Yes Issue No. 6 Yes Issue No. 7 Yes Issue No. 8 Yes Relief The suit of the plaintiff stands dismissed as per the operative part of the judgment. 7. The suit was dismissed by learned Trial Court by returning the findings that a perusal of the revenue record clearly demonstrated that land was in possession of the predecessor-in-interest of the defendants alongwith others. Learned Trial Court held that the plaintiff claimed that revenue entries qua the record of rights were wrong, however, the plaintiff did not bring any document on record to substantiate his claim. It held that in the absence of cogent and reliable evidence to demonstrate that the plaintiff was in possession of the suit land, it could not held so. Learned Trial Court held that the plaintiff claimed that revenue entries qua the record of rights were wrong, however, the plaintiff did not bring any document on record to substantiate his claim. It held that in the absence of cogent and reliable evidence to demonstrate that the plaintiff was in possession of the suit land, it could not held so. Learned Trial Court also held that as there was nothing on record to ascertain the claim of the plaintiff that he was owner in possession of the suit land alongwith proforma defendants, therefore, it could not be so held in favour of the plaintiff. Learned Trial Court further held that as the plaintiff has failed to prove that defendants had no right over the suit land, therefore, decree of permanent injunction could not be granted against the defendants and further, evidence on record clearly demonstrated that the defendants alongwith plaintiff and proforma defendants were in possession of the suit land. Learned Trial Court also returned categorical findings that the record of rights also demonstrated that possession of the suit land was that of the plaintiff, defendants and proforma defendants and not exclusively that of the plaintiff. On these bases, learned Trial Court dismissed the suit. 8. Learned Appellate Court upheld these findings by holding out that the contention of the plaintiff was that he and proforma defendants were owners in possession of the suit land and defendants have nothing to do with the same, however, Ext. P-1 and D-1 to D-3 demonstrated that defendants/their predecessor-in-interest were in possession of the suit land on payment of rent to the owners. Learned Appellate Court held that as these entries were challenged by the plaintiff, therefore, onus was upon the plaintiff to prove that the same were wrong which the plaintiff failed to do. Learned Appellate Court also held that oral evidence on record seemed to be evenly balanced, and therefore, the Court had to revert back to the documentary evidence or revenue entries which were against the plaintiff. Learned Appellate Court also held that oral evidence on record seemed to be evenly balanced, and therefore, the Court had to revert back to the documentary evidence or revenue entries which were against the plaintiff. With regard to the affidavit executed by Wattna, learned Appellate Court held that affidavit mark B was never filed by plaintiff on record at the time of filing the suit or at the time of settlement of issues and it was only after the evidence of the parties was over that he filed an application before the learned Trial Court to produce said affidavit in the Court by way of rebuttal evidence but the same was disallowed by the learned trial Court. While dismissing the application filed under Order 41, Rule 27 of the Code of Civil Procedure, learned Appellate Court held that sufficient explanation was not put forth by the plaintiff as to why this document was not filed earlier, when he was basing his claim on this very document. It held that the plaintiff could not be allowed to lead such evidence particularly when it was in the knowledge of the plaintiff from the very beginning. It also held that in case the application was allowed, the same will amount to re-opening the case causing prejudice to the opposite party, which cannot be allowed. Learned Appellate Court also held that otherwise also the affidavit was executed in the year 1991 by Sh. Wattna who died somewhere in the year 1994 but no effort was made by the plaintiff to get the revenue entries changed on the basis of this affidavit. Learned Appellate further Court held that said affidavit was not executed in the presence of any person who could identify the executants, which rendered the execution of the affidavit to be doubtful. On these bases, learned Appellate Court dismissed the appeal. 9. Feeling aggrieved, the appellants preferred this regular second appeal which, as already mentioned hereinabove, was admitted on the substantial questions of law quoted hereinabove. 10. I have heard learned Senior Counsel appearing for the appellants as well as respondents and gone through the judgments passed by both the learned Courts below as well as record of the case. 11. 9. Feeling aggrieved, the appellants preferred this regular second appeal which, as already mentioned hereinabove, was admitted on the substantial questions of law quoted hereinabove. 10. I have heard learned Senior Counsel appearing for the appellants as well as respondents and gone through the judgments passed by both the learned Courts below as well as record of the case. 11. A perusal of the judgments passed by both the learned Courts below demonstrate that there are concurrent findings of fact which have been returned by both the learned Court below to the effect that whereas the plaintiff failed to demonstrate that he alongwith proforma defendants was in exclusive possession of the suit land as its owner, the defendants have demonstrated that they alongwith plaintiff and proforma defendants were in possession of the suit land. Learned Courts have also returned concurrent findings to the effect that revenue record clearly demonstrates that predecessor-in-interest of the defendants were tenants upon the suit land who were confirmed proprietary rights. Now as far as the issue as to whether there can be any tenancy over the land which is not fit for cultivation is concerned, this Court is of the considered view that a careful perusal of the plaint demonstrate that no such stand was taken by the plaintiff in the plaint. Therein, the case of the plaintiff was simply that he alongwith proforma defendants was exclusive owner in possession of the suit land and defendant, who were strangers qua the suit land were interfering in the same. With regard to the question as to whether the Court is obliged to permit the production of such document as additional evidence which is necessary for enabling the Court to pronounce the judgment is concerned, it is well settled law that the provision of Order 41, Rule 27 of the Code of Civil Procedure cannot be permitted to be used as a tool by either of the parties to fill up the lacunae. Additional evidence can be permitted by the Appellate Court only if the Court is satisfied that despite due diligence, the party concerned was not able to earlier produce the evidence before the Court. Additional evidence can be permitted by the Appellate Court only if the Court is satisfied that despite due diligence, the party concerned was not able to earlier produce the evidence before the Court. In the present case, the document, which was intended to be produced by way of additional evidence, was an affidavit purportedly executed by predecessor-in-interest of the defendants as far back as in the year 1991, which as per the averments made in the plaint was in the knowledge of the plaintiff even at the time when the suit was filed. There is no cogent explanation available in the entire record as to why this document was not produced at the very first available instance by the plaintiff before the Court if the same was so important for the adjudication of the lis, as has been observed by learned Appellate Court while dismissing application under Order 41, Rule 27 of the Code of Civil Procedure. This Court reiterates that whether or not an application filed under Order 41, Rule 27 of the Code of Civil Procedure is to be allowed has to be tested not only from the perspective of due diligence exercised by the applicant but also from the perspective as to whether any prejudice would be caused to either party in case such an indulgence is shown in favour of the applicant who has otherwise failed to exercise due diligence. Now in the present case, by no stretch of imagination, it can be said that had the application been allowed, prejudice would not have been caused to the defendants, more so, in the teeth of the fact that the plaintiff failed to produce the said document on record despite the same being available with him even when the suit was filed. Further it cannot be said that the judgments passed by learned Courts below are vitiated on account of appellants not being allowed to place on record affidavit executed by Shri Wattna. This is for the reason that it is not for the Court to produce relevant evidence which is in favour of the parties before it. Onus is upon the parties to produce whatever evidence is with them to prove their cases as per their pleadings. This is for the reason that it is not for the Court to produce relevant evidence which is in favour of the parties before it. Onus is upon the parties to produce whatever evidence is with them to prove their cases as per their pleadings. If a party fails to exercise due diligence, and in such circumstances, if the prayer of a party to place on record a document is not accepted by the Court, then it cannot be said that the judgments passed by both the learned Courts below are vitiated on that count. Substantial questions of law are answered accordingly. In view of discussion held hereinabove, this appeal is dismissed being devoid of merit. Pending miscellaneous application(s), if any, also stand disposed of accordingly. No order as to costs.