Punjab-Haryana High Court
Sohan Singh vs Gurmej Singh And Ors. on 16 August, 2002
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. On the death of one Bhan Singh, who was issueless, the question of inheritance of his estate arose, two claims were raised, one by plaintiffs (appellants herein), who are sons of Bishan Singh, brother of deceased Bhan Singh, who claimed the entire property of Bhan Singh on the basis of gift deeds dated 16.4.1964, Ex.P1 and Ex.P2, and the second claim was made by the defendants (respondents herein), who are sons of other two brothers of Bhan Singh, on the basis of a registered will dated 1.3.1973, Ex.D3, vide which Bhan Singh bequeathed his property by giving 1/3rd share to the plaintiffs-appellants and 2/3rd share to the defendants-respondents. The mutation of inheritance of Bhan Singh was initially sanctioned by the Assistant Collector 1st Grade, Taran Taran in favour of the plaintiffs-appellants on the basis of alleged gift deeds vide his order dated 11.2.1972 but the said order was set aside in appeal by the Collector, Amritsar, vide his order dated 29.8.1972 and mutation was sanctioned in favour of the contesting defendants-respondents as well as plaintiffs-appellants on the basis of aforesaid registered Will dated 1.3.1973. The claim of the plaintiffs-appellants to the entire estate of Bhan Singh on the basis of gift deeds dated 16.4.1964 was not accepted by the revenue authorities as the appeal of the plaintiffs-appellants against the order of the Collector was dismissed by the Commissioner, Jullundur Division, Jullundur, vide his Order dated 6.2.1978. Ex.D5. Thereafter, on 31.3.1978, the present suit for declaration was filed by the plaintiffs-appellants, alleging therein that they are owners in possession of the land in question measuring 54 kanals 13 marlas, owned and possessed by Bhan Singh on the basis of gift deeds dated 16.4.1964, Ex.P1 and Ex.P2 and the defendants-respondents be restrained from taking forcible possession of the suit land except in due course of law.
2. The defendants-respondents, in whose favour the mutation was sanctioned, contested the suit by alleging that Bhan Singh never made any gift deeds in favour of the plaintiffs-appellants nor the alleged gift deeds saw the light of the day till his death and these were never acted upon. Possession of the land in question always remained with Bhan Singh and the same was never delivered to the plaintiffs-appellants. It was further assorted that Bhan Singh executed a registered Will dated 1.3.1973, Ex.D3, in favour of all the sons of his three brothers, vide which 1/3rd share was given to the plaintiffs-appellants being sons of his one brother and 2/3rd was given to the defendants-respondents being sons of his other two brothers. On the basis of the aforesaid Will, the mutation of the land in question was sanctioned in favour of all the beneficiaries. The plaintiffs-appellants contested the aforesaid mutation on the basis of alleged gift deeds in their favour. The appeal filed by them against sanctioning of the mutation in favour of the defendants-respondents was dismissed by the Commissioner.
3. On the pleadings of the parties, the learned trial court framed following issues:-
1. Whether Bhan Singh deceased executed two gift deeds dated 16.4.64 in favour of the plaintiffs? OPP
2. Whether plaintiffs are in possession of the suit land as owner? OPP
3. If issue No. 1 is proved, whether the alleged gift deeds are a result of fraud and wrong transaction if so its effect? OPD
4. Whether Bhan Singh deceased executed a valid will dated 1.3.73 in favour of the defendants? OPD
5. Whether suit land is ancestral of Bhan Singh qua defendants, if so its effect? OPD
6. Relief.
4. The learned trial court dismissed the suit of the plaintiffs-appellants vide judgment and decree dated 30.4.1979, while holding that it has not been proved on record that deceased Bhan Singh executed two valid gift deeds dated 16.4.1964, Ex.P1 and Ex.P2, in favour of the plaintiffs-appellants. Rather, it has been proved on record that these gift deeds were result of fraud and were merely a paper transaction, which were never acted upon. Regard ing the Will dated 1.3.1973, Ex.D3, it was held that the same was duly proved establishing that during his life time, Bhan Singh bequeathed his property by the aforesaid registered Will in favour of the sons of all of his three brothers, including the plaintiffs-appellants. Suit was also held to be barred by limitation.
5. Against the judgment of the trial, court, the plaintiffs-appellants filed appeal before the learned District Judge, Amritsar on 5.5.1979, which was dismissed on 5.1.1982 and the findings recorded by the trial court were affirmed. Against that judgment, this Regular Second Appeal was filed and it was admitted on 3.8.1982.
6. Learned counsel for the plaintiffs-appellants contended that during the pendency of the first appeal, the plaintiffs-appellants filed application for leading additional evidence under Order 41 Rule 27 CPC on 5.11.1981 for producing and proving the order of Gift Tax Officer, Amritsar dated 2.4.1966, vide which Bhan Singh deceased was assessed to gift tax and the order was passed in his presence. But the said application was not decided or disposed of by the learned District Judge and the impugned judgment and decree was passed. Therefore, after setting aside the judgment and decree dated 5.1.1982 the matter should be remanded to the first appellate court to first decide application for additional evidence and then consider the appeal on merits. In support of his contention, learned counsel relied upon decision of this Court in Didar Singh Randhawa and Ors. v. Mohinder Singh and Ors., (1988-2)94 Revenue Law Reporter 440 and Jagir Kaur and Anr. v. Nirmal Singh and Anr., (1993-2) 104 Punjab Law Reporter 374. Learned counsel further contended that the following question of law is involved in the present appeal :-
Whether the learned lower appellate Court was competent to decide the appeal without deciding the application under Order 41 Rule 27 CPC for additional evidence in the form of documents proving the payment of Gift Tax by Bhan Singh deceased himself?
7. I have examined the records and considered the submissions, made by learned counsel for the plaintiffs-appellants. Perusal of the record reveals that the application for additional evidence under Order 41 Rule 27 CPC was filed by the plaintiffs-appellants on 5.11.1981, when the appeal was fixed for hearing. It was not filed alongwith the appeal, which was filed on 5.5.1979. Reply to the said application was filed by the contesting defendants-respondents on 24.11.1981 and on that date, it was ordered that the application shall be disposed of along with the main appeal. The main appeal was decided on 5.1.1982. It also appears from the record that no separate order has been passed on the said application at the time of final disposal of the appeal. In the judgment, no reference of the said application has been made. It appears that the application for additional evidence was not pressed and no argument was raised on that application at the time of final arguments and perhaps for these reasons, no order was passed on the said application and the same was not referred to in the judgment. In the grounds of appeal before this Court also, the plaintiffs-appellants did not state that this application was pressed and argued before the learned first appellate Court at the time of final arguments and in spite of that, no order was passed on their application. In these circumstances, it will not be appropriate for this Court to accept the contention of the learned counsel and remand the matter to the first appellate Court after setting aside the judgment and decree. I am of the view that instead of remanding the case to the first appellate Court and to compel the parties to face further agony of years for final determination of their dispute, it will be more appropriate if this Court considers their application for additional evidence filed by the plaintiffs-appellants and take a decision whether they are entitled to lead additional evidence and whether the proposed additional evidence is necessary for the just and proper adjudication of the matter. My above view is supported by decision of this Court in Prabhu Lal v. Hardevi, (1994-1) 106 P.L.R. 398, wherein it has been held in similar circumstances that the remand of the case will not be appropriate. It will result into delay and the ends of justice will meet if the application for additional evidence is considered by this Court. I am of the opinion that the remand of a case cannot be ordered by the appellate court as a matter of course or convenience. Appellate Court can remand a case only when any eventuality as mentioned in Order 41 Rules 23 and 23(a) C.P.C. occurs. Mere insufficiency of evidence on the file to support the contentions of a party is by itself no ground for setting aside the judgment of the trial court and order for remand. Remanding a case for re-trial is a serious matter. Such order can be passed in exceptional circumstances where there had been no real trial or complete and effective adjudication of the matter. Remand is not meant for providing fresh opportunity to a party. Keeping in view these factors, I find no merit in the contention of learned counsel for the plaintiffs-appellants for remanding the matter to the first appellate Court, after setting aside its judgment and decree, for deciding their application for additional evidence and then to decide their first appeal on merits.
8. I have examined the application filed by the plaintiffs-appellants under Order 41 Rule 27 CPC and the reply thereto, filed by the contesting defendants-respondents, before the first appellate Court. In the application, the only averment made is that recently, it transpired from the papers of Bhan Singh that he had filed return of gift tax before the Gift Tax Officer, Amritsar and he was assessed to gift tax of Rs. 400/- by the authority and the same was paid vide receipt dated 15.4.1966. It has been alleged that these documents were not in the knowledge of the plaintiffs-appellants and these were found only a week back from the papers of Bhan Singh. Therefore, permission to lead additional evidence in this regard was sought. This application was opposed by the contesting defendants-respondents by filing reply, in which they have stated that the documents have no bearing on the matter in controversy. The plaintiffs-appellants were having the knowledge of these documents but the same were not produced at the relevant time. They just want to delay the proceedings and are not entitled to lead additional evidence.
9. 1 have considered this application and am of the view that the plaintiffs-appellants were not entitled to lead any additional evidence as they did not fulfil the requirements for leading additional evidence at appellate stage, as required in Order 41 Rule 27 CPC. It has not been mentioned in the application as to when these documents came to the knowledge of the plaintiffs-appellants nor any averment has been made in the application that notwithstanding the exercise of due diligence, they could not get the knowledge of these documents at the time when they were leading their evidence. Furthermore, in my opinion, these documents are not required to decide the matter in controversy because as per the findings recorded by the learned trial court, the alleged gift deeds in favour of the plaintiffs-appellants were held to be result of fraud and the same were never acted upon. As per the documents, available on the record, possession of the land of Bhan Singh was never transferred to the plaintiffs-appellants and Bhan Singh always remained in possession thereof during his life time. It has also come on record that Bhan Singh himself filed a suit, copy of plaint whereof is Ex.D2 against the plaintiffs-appellants alleging therein that he did not make any gift deed in favour of any one and the alleged gift deeds in favour of the plaintiffs-appellants are result of fraud. During the pendency of that suit, he made a statement in the Court, copy of which is Ex.D2/A, that he never executed the alleged gift deeds in their favour, which were result of fraud and mis-representation. In view of these facts and finding, the documents sought to be proved in additional evidence by the plaintiffs-appellants were not relevant for adjudication of the controversy in question because once the alleged gift deeds were found to be the result of fraud and mis-representation, then these documents were not relevant. Thus, I find no merit in the application filed by the plaintiffs-appellants for leading additional evidence and I am of the opinion that no prejudice was caused to them by not deciding their application by the first appellate court.
10. I have then considered the Regular Second Appeal of the plaintiffs-appellants on merits. In my view there is no merit in the appeal. A pure findings of fact have been recorded by the Courts below which do not require any interference in the second appeal. In the grounds of appeal, the plaintiffs-appellants took a new plea that when the suit filed by Bhan Singh was abated after his death, therefore, it should be deemed that the alleged gift deeds in their favour were held to be legal and as such in the present suit, the validity of the gift deeds. Ex.P1 and Ex.P2, cannot be challenged by the contesting defendants-respondents. I am not impressed by this argument of learned counsel. In the present suit, the plaintiffs-appellants sought declaration on the basis of alleged gift deeds. The burden to prove that these gift deeds were validly executed by Bhan Singh is upon them which they have failed to discharge. Both the courts below have recorded concurrent finding of fact that these gift deeds. Ex.PI and Ex.P2 are illegal being result of fraud and hence are having no legal effect in the eyes of law. There is another document on the record, which is an order dated 31.8.1971, Ex.D6, passed by Assistant Collector Ist Grade, Tarn Taran. Vide this order, the Revenue Officer decided the application filed by Bhan Singh for correction of khasra girdaari of the land in question, which was wrongly got entered by the plaintiffs-appellants for the crops of Rabi 1971 on the basis of alleged gift deeds. The plaintiffs-appellants contested that application and pleaded that they were in possession of the land in question on the basis of aforesaid gift deeds, which were validly executed by Bhan Singh. The Revenue Court, after considering the evidence of both the parties, allowed the application after holding that Bhan Singh always remained in possession of the land in question. He did not transfer the possession to the plaintiffs-appellants at any point of time and the alleged gift deeds were never acted upon as these were result of fraud and mis-representation. This document also proves that the plaintiffs-appellants never remained in possession of the land in question and the alleged gift deeds were never acted upon.
11. In view of above discussion, there is no merit in the present appeal and the same is hereby dismissed with no order as to costs.