JUDGMENT : V.SRISHANANDA, J. Heard Sri R.P.Somashekharaiah, learned counsel for the appellant and Sri S.S.Hiremath, learned counsel for respondent No.2(a) to (f). None appears of the legal representatives of deceased respondent No.1. 2. Unsuccessful plaintiff in O.S.No.6725/2000 on the file of the XVIII Addl. City Civil Judge at Bengaluru City (CCH No.32) is the appellant challenging the validity of the said judgment and decree. 3. Parties are referred to as plaintiff and defendant for the sake of convenience. 4. Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under: A suit for partition and separate possession in respect of the following immovable property (hereinafter referred to as ‘suit property’) came to be filed by the plaintiff. “The immovable property bearing Corporation No.5, situate in Cholurpalya Extension of Kempapura Agrahara, Magadi Road, Bengaluru-23, measuring East to West 40 feet, North to South 30 feet, and bounded on the: East by : property No.6, West by : property No.4, North by : private property and South by : Road. and the said property has a small 1 square building with asbestos sheet built 50 years ago in a portion and the remaining portion is having a foundation for an intended building. The present market value of the property is Rs.1,30,000/- (rupees one lakh thirty thousand only).” 5. Plaintiff contended that he is son of Siddoji Rao. It is contended that Basoji Rao @ Siddoji Rao was the common prepositus who was working as a Police Constable and had acquired the suit property which is ancestral property. 6. It is further contended that out of the joint family nucleus, property was purchased though in the name of first defendant, the property was purchased by utilizing the joint family nucleus and therefore, property is to be construed as joint family property. 7. 6. It is further contended that out of the joint family nucleus, property was purchased though in the name of first defendant, the property was purchased by utilizing the joint family nucleus and therefore, property is to be construed as joint family property. 7. It is further contended that defendant Nos.1 to 3 colluded together and sold it in favour of third party i.e., defendant No.4 by virtue of sale deed which is called in question by the plaintiff seeking the following relief: “WHEREFORE, the plaintiff most humbly prays that this Hon’ble Court be pleased to pass a judgment and decree against the defendants: (a) to declare the sale deed entered into by the first defendant with the consent of the defendant Nos.2 and 3 in favour of the 4 th defendant on 28.08.1991 with respect to the suit schedule property on the file of the Sub Registrar, Sriramapuram, registered as document No.174/1991-92 as null and void and illegal, pertaining to the suit schedule property, (b) to declare that the plaintiff has 1/3 rd share in the suit schedule property, and (c) to allow the suit with costs, (d) grant such other relief or reliefs as this Hon’ble Court may deem fit under the facts and circumstances of the case in the interest of justice and equity.” 8. Pursuant to the suit summons, defendants entered appearance and filed written statement contending that Basoji Rao acquired the suit property during his life time is incorrect. Claim of the plaintiff that he is having share in the suit property was denied by the defendants. 9. It is also contended that suit property was purchased by the first defendant out of his earnings and therefore, it is the individual property of the first defendant for which he had every right to sell the property and therefore, sale made by him in favour of the fourth defendant is a valid sale and thus sought for dismissal of the petition. 10. Based on the rival contentions of parties, learned Trial Judge framed the following issues: “(i) Whether the plaintiff proves that the suit property was ancestral joint family property as pleaded? (ii) Whether the 4 th defendant proves that the 1 st defendant had legal title to convey the suit property to him as contended? (iii) Whether the plaintiff is entitled to 1/3 rd share in the suit property? (iv) To What relief?” 11. (ii) Whether the 4 th defendant proves that the 1 st defendant had legal title to convey the suit property to him as contended? (iii) Whether the plaintiff is entitled to 1/3 rd share in the suit property? (iv) To What relief?” 11. In order to prove the issues, plaintiff got examined himself as P.W.1, wherein he has filed an affidavit in lieu of examination-in-chief which is nothing but verbatim of the plaint averments. 12. In the cross-examination, it is elicited by the learned counsel for the defendants that plaintiff has studied upto 10 th standard and is working in a transport Company. He has further answered that after the death of his father, himself and his mother were residing with defendant Nos.3 and 4 and thereafter, they went to the parents house of his mother. 13. He has answered that when he was aged about 6 or 7 years he was sent back to mother’s place. He has further answered that his grand-father was working in police department and he admits that first defendant purchased the suit property under registered sale deed dated 28.10.1972 from B.V.Byanna and B.V.Jayaram. He specifically admitted that he has no document to establish that the suit property was purchased by the first defendant out of the amount saved by his grand-father. He also admits that 4 th defendant purchased the suit property from defendant Nos.1 to 3 and since the year 1991, 4 th defendant is in possession of the suit property. 14. He also admits that from the date of purchase 4 th defendant is in possession of the suit property and he had not objected 4 th defendant from purchasing the suit property on the date on which the sale deed was registered. 15. Further examination was deferred and thereafter P.W.1 did not appear before the Court nor adduced any further evidence. 16. Except producing the certified copy of the sale deed dated 28.08.1991 executed by defendant Nos.1 to 3 in favour of fourth defendant, encumbrance certificate and photograph of the building, no other documents are placed nor any witness is examined on behalf of the plaintiff to prove issue No.1. 17. 16. Except producing the certified copy of the sale deed dated 28.08.1991 executed by defendant Nos.1 to 3 in favour of fourth defendant, encumbrance certificate and photograph of the building, no other documents are placed nor any witness is examined on behalf of the plaintiff to prove issue No.1. 17. Learned Trial judge noted that even defendant did not choose to adduce any evidence on record, posted the matter for arguments and thereafter, dismissed the suit of the plaintiff for want of proof as to the nature of the property as is contended by the plaintiff. 18. Learned Trial Judge has also opined that plaintiff has failed to prove that the suit property was purchased by the first defendant from out of the joint family income and there are no documents to substantiate the plaint averments. 19. Being aggrieved by the same, plaintiff has filed the present appeal before this Court on the following grounds: - “ The Trial court erred in holding the issues No.1 & 3 in the negative and issue No.2 in the affirmative. - The trail court judgment is one sided judgment and the learned trail court judge has not considered the plaint averments, evidence and the documents produced by him and marked as Exhibits P1 to P7. - The trail court judge erred while answering the issue No.2 in the affirmative even though the defendant No.4 failed to prove his case to the effect that the first Defendant had legal title, to convey the suit property to him by leading his evidence and by producing necessary documents. - The learned trail court judge erred while coming to the conclusion that the suit property is the self acquired property of the first Defendant even though none of the Defendants have proved their contentions by leading cogent evidence to that effect. - The learned trail court judge failed to appreciate the averments made in the plaint and the evidence of plaintiff on record. - The learned trail court judge failed to consider the fact that the Defendants have not consulted the plaintiff while executing the sale deed in question and not obtained the signature of the plaintiff and his mother as consenting witnesses to the said sale deed knowing fully well that the plaintiff and his mother are also the joint family members and having rights over the joint family property. - The learned trail court judge has not considered the fact that the first Defendant was not having independent source of income and self funds to purchase the suit property on 29-10-1972 and she has purchased the said property out of the income of joint family properties of the plaintiff. - The learned trail court judge has passed the impugned judgement only on the basis of the Written Statements filed by the Defendants 2 and 4 and in the absence of any cogent evidence by the Defendants. - The entire judgement and decree passed by the trial court judge are opposed to facts, pleadings, evidence and law and the same is arbitrary. - The Judgement passed by the trial court is grossly erred one and apposed to facts and probabilities and contrary to the law of evidence and materials on record, capricious and vexatious.” 20. Before this Court, along with I.A.No.2/2008, number of documents are produced which are as under: “(i) RTC in respect of survey No.37/3 in Madaga village, Shivajipalya. (ii) Copy of the death certificate of Basappa @ Basojirao.” 21. Sri R.P.Somashekharaiah, learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum vehemently contended that when the matter was posted for judgment, an attempt was made by the appellant to produce the documents before the Trial Court which was rejected, and dismissing the suit has thus resulted in miscarriage of justice. 22. He further contended that appeal is continuation of the suit and therefore, application filed under Order XLI Rule 27 of the Code of Civil Procedure may be allowed and suit be remitted to the Trial Court for fresh disposal in accordance with law. 23. He further contended that fact of Basoji Rao working in Police Department as police constable is not in dispute as is elicited in the cross-examination of P.W.1. Therefore, joint family funds have been utilized by the first defendant to purchase the suit property stands established and only on the ground that there is no document placed on record by the plaintiff, dismissing of the suit has resulted in miscarriage of justice and sought to allow the appeal. 24. Per contra, Sri S.S.Hiremath, learned counsel for the respondent No.2(a) to (f) supports the impugned judgment. 25. 24. Per contra, Sri S.S.Hiremath, learned counsel for the respondent No.2(a) to (f) supports the impugned judgment. 25. In view of the rival contentions of the parties, the following points would arise for consideration: (i) Whether the plaintiff has made out that the suit property is acquired out of joint family funds? (ii) Whether the appellants have made out a case for admitting the additional documents? (iii) Whether the impugned judgment suffers from legal infirmity and perversity and thus calls for interference? (iv) What Order? 26. REGARDING POINT No.2: This point is taken up for discussion in the beginning in order to avoid repetition of facts. In the affidavit in support of application I.A.No.2/2008 there are no valid reasons assigned by the appellant to admit additional documents. Nothing is stated as to what prevented the appellant to produce the documents referred in I.A.No.2 before the Trial Court. Moreover, there is no valid reasons stated in the affidavit to admit the additional evidence. 27. On the contrary, the order sheet discloses that sufficient opportunities were granted to plaintiff to lead additional evidence. 28. It is also noted that after getting cross-examined in part, P.W.1 did not care to appear before the Court despite granting several opportunities. Ultimately, side of plaintiff was closed and matter was posted for defendants’ evidence. 29. Taking note of the fact that the first issue is not proved by the plaintiff, defendants did not choose to adduce any evidence on record even though discharging the burden on issue No.2 was on 4 th defendant. 30. Therefore, affidavit contents that by not admitting additional documents great prejudice has been caused to the case of the appellant cannot be countenanced in law. 31. Moreover, a litigant cannot be permitted to place the additional documents before the First Appellate Court as of a right. 32. The affidavit must disclose the valid and substantial reasons for not furnishing the documents in support of his case before the Trial Court despite exercising due diligence. 33. Only in such cases where if it is beyond the control of the party who wants to place additional documents before an appellate Court, and in such cases, the delay in production of additional documents can be condoned especially if it affects the rights of the parties and results in grave miscarriage of justice. 34. 33. Only in such cases where if it is beyond the control of the party who wants to place additional documents before an appellate Court, and in such cases, the delay in production of additional documents can be condoned especially if it affects the rights of the parties and results in grave miscarriage of justice. 34. In the case on hand, as could be seen from the documents that is sought to be placed before the Court, no material document is also found so as to improve the case of the appellant to any extent that there was enough joint family nucleus and joint family income and there was spill over so as to purchase the suit property in the name of the first defendant. 35. On the contrary, sale deed in favour of first defendant from B.V.Byanna and B.V.Jayaram shows that it was acquired by the first defendant by spending his individual income and not the joint family income. 36. If at all if the property has been acquired by the first defendant out of joint family, his brothers who are defendant Nos.2 and 3 should have had any objection for the same. 37. Admittedly defendant Nos.2 and 3 did not have any objection for sale of property by the defendant No.1 in favour of defendant No.4. 38. These aspects of the matter would go to show that father of the appellant/plaintiff could not have had any share in the property that was belonging to first defendant whereby the plaintiff could maintain the suit after the death of his father. 39. It is also pertinent to note that there is no mention as to what happened to the mother of the plaintiff and why she did not challenge the alienation when she was alive. 40. Thus, plaint not only suffers from material facts but also for want of necessary evidence to advance the case of the plaintiff. 41. Therefore, in the considered opinion of this Court, even assuming that the additional documents are to be accepted on record, it would not improve the case of the plaintiff to any extent. Therefore, the request made by the appellant to admit the additional documents is hereby rejected. Accordingly, point No.2 is answered in the negative. 42. REGARDING POINT Nos.1 AND 3: These two points are taken up together for consideration in order to avoid repetition of facts. 43. Therefore, the request made by the appellant to admit the additional documents is hereby rejected. Accordingly, point No.2 is answered in the negative. 42. REGARDING POINT Nos.1 AND 3: These two points are taken up together for consideration in order to avoid repetition of facts. 43. Admittedly, plaintiff has framed suit on the ground that suit property is the joint family property. To prove the said aspect of the matter, there is no semblance of evidence except the oral say of P.W.1 that too in the form of affidavit in lieu of examination-in-chief which is nothing but replica of the plaint. 44. Further plaintiff did not choose to appear before the Court for further cross-examination. 45. Plaintiff did not choose to examine any other witness before the Court so as to prove that suit property actually was purchased in the name of the first defendant by utilizing the joint family funds that was held by Basoji Rao who was working as a police constable. 46. Under such circumstances, only the oral say of the plaintiff that the suit property is ancestral property is rightly rejected by the learned Trial Judge. Therefore, dismissal of the suit is just and proper with sound and cogent reasons. 47. An attempt having been made to place the additional evidence and rejected by this Court while answering point No.2, this Court does not find any legal infirmity or perversity in the impugned judgment so as to allow the appeal and remit the matter to the Trial Court. 48. Under such circumstances, point Nos.1 and 3 are answered in the negative. 49. REGARDING POINT No.4: In view of the find of this Court on point Nos.1 to 3 as above, the following: ORDER (i) I.A.No.1/2008 is rejected. (ii) Appeal is meritless and is hereby dismissed. (iii) No order as to costs.