Punjab-Haryana High Court
Rajbir Singh vs Virender Singh And Ors. on 18 January, 1996
Equivalent citations: (1996)112PLR703
JUDGMENT N.K. Kapoor, J.
1. This is unsuccessful plaintiffs regular second appeal.
Plaintiff filed a suit for declaration against Chhatter Singh, his father, and others to the effect that the decree dated 25.4.1986 suffered by Chhatter Singh in favour of defendants No. 1 to 4 is illegal, null and void. It was stated that he is in possession of the property and in case he is not found to be in possession of the property, decree for possession be passed.
2. The matter was contested by the defendants. On the pleadings of the parties a number of issues were framed and due opportunities were afforded by the trial Court to adduce evidence in support of their respective contentions. The suit was dismissed primarily on the ground that there is no proof on record that the property in dispute was ancestral in the hands of Chhatter Singh.
3. Before the appellate Court, the plaintiff besides challenging the legality and propriety of the judgment and decree of the trial Court made a prayer to adduce additional evidence. Vide application for additional evidence, permission was sought to place on record the copies of revenue record to prove the ancestral nature of the property/Joint Hindu property in the hands of Chhatter Singh. The lower appellate Court, however, instead of deciding the application for additional evidence, declared the matter to be considered at the time of final disposal of the appeal.
4. It is the grievance of the appellant that his application under Order 41 Rule 27 of the Code of Civil Procedure (for short 'the Code') which was ordered to be considered at the time of final hearing of appeal has, however, not been decided by the lower appellate Court and so on this ground alone the judgment and decree of the lower appellate Court is liable to be reversed. Elaborating the counsel urged that the documents sought to be adduced on record (copies of revenue record), if considered, clearly prove that the suit land was ancestral in nature in the hands of Chhatter Singh, la which the plaintiff-appellant has a right from his birth. In any case since the lower appellate Court inadvertently has not adverted to the merit of the application for additional evidence, the judgment and decree of the lower appellate Court is liable to be reversed on this ground alone.
5. Learned counsel for the respondents, on the other hand, argued that both the Courts below had carefully considered the oral as well as documentary evidence and came to the conclusion that the suit land was not the ancestral property of defendant No. 5 Chhatter Singh. In fact, it was the self-acquired property of Chhatter Singh and so the decree suffered by Chhatter Singh in favour of the respondents does not suffer from any illegality/infirmity. As regards the plea now raised by the counsel for the appellant that the appellant's application for additional evidence was not considered by the Court below, no such grievance was made by the appellant before the Court below. Had this plea been pressed by the counsel for the appellant, the Court below would have examined the matter on its merit. So the necessary inference would be that the appellant did not press the application for additional evidence.
6. I have heard learned counsel for the parties, perused the judgments of the courts below. The dispute relates to the property, which according to the appellant-plaintiff, is their ancestral property whereas, according to the defendants, it is the self acquired property of Chhatter Singh. The crux of the dispute pertains to determining this vital question. No doubt the appellant-plaintiff did not place on record the documentary evidence to substantiate this contention. It is only during the pendency of the appeal that the plaintiff filed an application to adduce additional evidence with a view to prove the ancestral nature of the property. Concededly, this application for additional evidence has not been decided by the lower appellate Court (though was ordered to be disposed of at the time of final hearing). It is within the power of the Court to allow or disallow the application for additional evidence in terms of Order 41 Rule 27 of the Code. All the same, the Court is expected to decide. Whether the application for additional evidence would have been allowed or not is a question which is in the realm of conjectures. What exact effect it would have in case such an application is allowed is again a matter which the Court is to decide on carefully considering the evidence so adduced. Thus, no final view can be taken at this stage. Since the court below has failed to pass any order on the application for additional evidence, I am of the view that the judgment and decree of the lower appellate Court deserves to be set aside on this ground alone. Accordingly, I accept the appeal, set aside the judgment and decree of the lower appellate Court and remand the case to it to decide the matter afresh along with the plaintiffs application for additional evidence. The parties are directed to appear before the lower appellate Court on 14.3.1.996. The lower appellate Court is further directed to decide the appeal without any unjust delay, preferably within six months from the receipt of this order of the Court.