Punjab-Haryana High Court
Pirbhu Dayal And Ors. vs Prem Dass Chela Kishan Lal And Ors. on 10 May, 1994
Equivalent citations: (1995)110PLR119
JUDGMENT V.K. Bali, J.
1. Plaintiff appellants succeeded in the trial Court and obtained a decree declaring that decree dated 18.9.1985 was not binding on their rights and Mandir Dadu Panthi Talao and, therefore, no rights could possibly be conferred in favour of the defendant-respondents under the said decree and the suit property was held to be in sole ownership and possession of the plaintiff. Consequent upon the declaration referred to above, the trial Court restrained the respondents (hereinafter referred to as the defendants) from interfering in their peaceful possession of the Mandir over the disputed properties in any manner whatsoever.
2. In an appeal, however, preferred by the defendants, the judgment and decree passed by the trial Court was set aside. Thus, the present appeal by the plaintiffs.
3. During the pendency of this appeal, defendants have filed Civil Miscellaneous No. 559-C of 1994 under Section 107 read with Order 41 Rule 27 of the Code of Civil Procedure seeking permission to place some documents by way of additional evidence. The documents sought to be produced are, certified copy of Jamabandi for the year 1879, certified copy of statement of tenancy rights for the year 1879 and the copies of two mutations of village Talao qua the suit land.
4. The prayer contained in the application has been contested. In the reply filed by the plaintiffs opposing the said application, it has been pleaded that the defendants had not sought permission at any earlier stage for leading the additional evidence. The record was also summoned by this Court for proper adjudication of the case and the present application is highly belated. However, no cogent reasons for filing the application seeking permission to lead secondary evidence are forthcoming. It is also pleaded that respondents have no plausible reason as to why with exercise of due diligence the documents sought to be produced now could not be produced earlier.
5. The controversy between the parties is apparently with regard to nature of the land. The case of the plaintiff is that the land in dispute was given to a dohlidar and as per nature of the tenure, the dohlidar could not possibly alienate it in any manner whatsoever, whereas the positive case of the defendants on the contrary is that the whole land might have been given to dholidar but as far as back in the year 1879 or even earlier a part of the land was given to predecessor-in-interest of the defendants as occupancy tenants under the provisions of Tenancy Act, 1887. It requires to be mentioned that the finding of the appellate Court is in tune with the afore-mentioned plea of the defendants. The documents now sought to be produced by way of additional evidence are not such documents which could be procured or manipulated. These are all copies from revenue record pertaining to year 1879. The Court itself desired to look into such documents with a view to decide the controversy effectively. It is during the course of arguments that the application for additional evidence was filed. It is a case where the Court itself required additional documents to be produced on record with a view to decide contentious issue between the parties as even though revenue record of later years incorporating entries based on these documents were produced by defendants but these basic documents were not produced. Once it is the requirement of the Court to examine the documents, the filing of the same at the earlier in point of time or late i.e. as late as in the High Court is wholly meaningless. Inasmuch as the Court at this stage feels it more appropriate to remit the case to the appellate Court, it would be in the interest of the parties that this Court does not give any opinion on the merit of the documents which have now been placed on record i.e. certified copy of Jamabandi for the year 1879, certified copy of the statement of tenancy rights for the year 1879 and the copies of two mutations of village Talao with regard to the land in dispute.
6. The application in hand in thus allowed and the case is remanded to the first appellate Court permitting the respondents an opportunity to formally prove the documents referred to above or any other document that might be relevant. Obviously, the plaintiffs shall be equally entitled to rebut the evidence given by the defendants. The judgment and decree passed by the first appellate Court is set aside with a further direction to dispose of the appeal after giving an opportunity to the parties to lead evidence in the manner indicated above.
7. The parties through their counsel are directed to appear before the first appellate Court on 30.5.1994. Record of this case be sent back forthwith.