Madhya Pradesh High Court
Pramod Kumar Jain vs Smt. Kushum Lashkari on 29 August, 2019
Author: Anand Pathak
Bench: Anand Pathak
1 Second Appeal No.564/2008
HIGH COURT OF MADHYA PRADESH BENCH AT
GWALIOR
SINGLE BENCH
Second Appeal No.564/2008
Pramod Kumar Jain and Others
Vs.
Smt. Kushum Lashkari and Others
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Shri N.K. Gupta, learned Senior counsel assisted by Shri Ravi
Gupta, learned counsel for the appellants.
Shri Santosh Agrawal, learned counsel for the respondents.
Whether approved for reporting : Yes
Law laid down:
1. That if the document is 30 years old then it gives rise to the
presumption as per Section 90 of the Indian Evidence Act, as to its
genuineness because it is produced from the proper custody and its
execution has been proved by the witness.
2. The plea of adverse possession is available to the plaintiff
also in view of the recent pronouncement of the Hon'ble Apex
Court in the case of Ravinder Kaur Grewal & Ors. Vs. Manjit
Kaur & Ors. Reported in Civil Appeal No.7764/2014 vide
judgment dated 07th August, 2019.
3. Provisions of Order 41 Rule 27 of CPC does not authorize
any lacuna or gaps in evidence to be filled up at the stage of
appeal. It is the duty of the litigating party to show due diligence.
2 Second Appeal No.564/2008
(See: N. Kamalam (Dead) and Another Vs. Ayyasamy and
Another, (2001) 7 SCC 503 and Basayya I. Mathad Vs.
Rudrayya S. Mathad and Others, (2008) 3 SCC 120) and recent
pronouncement of the Hon'ble Apex Court in the case of Jagdish
Prasad Patel (D) Thr. Lrs. Vs. Shivnath and Others, (2019) 6
SCC 82.
4. The trial Court has the advantage of seeing and hearing the
witnesses while recording evidence therefore, appreciation of
evidence by the trial Court ought not be interfered casually.
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JUDGMENT
(Pronounced on 29th August, 2019) The instant second appeal under Section 100 CPC has been filed arising out of the judgment and decree dated 15/09/2008 passed by IIIrd Additional District Judge, Vidisha in Civil Appeal No.8-A/2008 and 9-A/2008 confirming the judgment and decree dated 07/08/2003 passed by Civil Judge Class-I, Vidisha in Civil Suit No.61-A/2002.
2. Precisely stated facts of the case are that respondents/ plaintiffs filed a suit for declaration and permanent injunction against Municipal Council, Vidisha and late Shri Chironjilal (later on added as defendant). As per the pleadings, the disputed property is in possession of the plaintiffs and their ancestors for last 40 years and defendant Chironjilal raised a dispute with regard to land in question and the adjacent land which has been earlier 3 Second Appeal No.564/2008 decided by the Civil Court. It was the pleadings of the plaintiffs that one Mubarak Ali Shah who was the title holder and possessor of the suit property given a written patta dated 14/04/1941 in favour of Shri Bankelal Ji (father of Brijbhushan lal and father-in- law of plaintiff No.1 Parwati Bai and since then on the basis of patta, they were the owner and possessor of the suit property over survey no.1042/6. Since Mubarak Ali Shah was the title holder and possessor of the large stretch of land and constructed some houses over it, therefore, those small survey numbers could not have been measured and therefore, original Khasra of Samvat 2006 (year 1951) was without much correction therefore, demarcation of the said property was not possible. Municipal Council, Vidisha (defendant No.1) obtained a report from Sadar Kanoongo vide report dated 15/12/1943 in which the disputed property i.e. part of survey no.1042/6 was found to be existing under possession of Brijbhusan, therefore, petitioner are the title holder and possessor of the suit property.
3. It is further pleaded that on 16/06/1979 around 3pm, defendant No.1, Municipal Council, Vidisha suddenly barged over the land in question with 50-60 labourers and tried to disrupt the possession of the plaintiffs. A complainant was made to the Superintendent of Police and construction was stopped. Thereafter, on 23/06/1979, constructed door over the disputed property and on 28/06/1979 proceedings under Section 145 of Cr.P.C. was instituted.
4 Second Appeal No.564/2008
4. It was the allegations of the plaintiffs that defendant No.2 (later on incorporated as defendant) is not a necessary party in the suit and later on it was amended that he is trying to grab the land and making an attempt to get the possession of it. It was further alleged that defendant No.1, Municipal Council has accorded necessary permission to the plaintiffs for construction of the house and thereafter, constructions was made. Various civil court proceedings were also referred in the plaint to bring home the fact that earlier defendant No.2 undertook proceedings in respect of same suit property but same were decided in favour of the plaintiffs and attained finality therefore, suit for declaration and permanent injunction by such pleadings was filed.
5. Defendant No.1, Municipal Council filed written statement and rebutted the claim made by the plaintiffs. It was submitted that the land is under the title and possession of the Municipal Council and accepted the fact that prior to 1979, the land was under the possession of the plaintiffs but since 1979, the land is in possession of the Municipal Council. For beautification of the city and for making valuable civic amenities, the Municipal Council has taken the land of the Municipal Council from the encroachment undertaken by the plaintiffs and therefore, rebutted the claims of the plaintiffs.
6. Reference of one pending appeal before IInd Additional District Judge, Vidisha vide No.36-A/74 was given which has been filed by Dr. Chironjilal (defendant) and therefore, on the 5 Second Appeal No.564/2008 basis of said pending appeal, claim of the plaintiff was rebutted.
7. Defendant No.2 which was later on impleaded as party defendnat also filed written statement and rebutted the claim and tried to establish his own claim over the suit property. In plaint, Special Pleadings, defendant No.2 referred earlier court proceedings and on the basis of said proceedings, tried to establish his claim. He prayed for dismissal of the suit.
8. Trial Court framed as many as 20 issues in the case in hand. Initially 15 issues were framed thereafter, 4 additional issues were framed thereafter another issue as issue No.20 was framed. Respective evidence were led by the parties in support of their submissions. Issue No.1 and 2 were the crux of the matter , in which one was in respect of ownership of the plaintiff over the suit land and another was in respect of execution of the written patta dated 14/04/1941 allegedly executed by the Mubarak Ali Shah in favour of the Bankelal (father-in-law of plaintiff No.1).
9. After considering the rival submissions, evidence and pleadings, trial Court decreed the suit and the relevant issues including issue No.1 and 2 were recorded in favour of the plaintiff. Being aggrieved by the same, defendant preferred first appeal before III Additional District Judge, Vidisha. One civil appeal vide No.8-A/2008 was preferred by the defendant Pramod Kumar Jain against the plaintiffs and another appeal vide No.9-A/2008 was preferred by the Vimla Devi w/o Chironjilal, Sunil Kumar and Vinod Kumar (through his legal heirs) and Smt. Suman Jain 6 Second Appeal No.564/2008 against the plaintiffs (and through legal heirs) and both the appeals were decided by a common judgment dated 15/09/2008. Appeal preferred by the defendants were dismissed, however decree has been modified to the extent that Kushum Lashkari and Vimla Lashkari (respondents No.1 and 2 herein) being legal heirs of Brijbhusanlal were also found to be owners and possessors of the suit property of survey no.1042/6 as per the map Ex.P-1 attached with the plaint.
10. Being crestfallen by the judgment and decree passed by the trial Court and affirmed by the first appellate Court, the instant second appeal under Section 100 CPC has been preferred.
11. Senior counsel appearing for the appellants/ defendants submits that Courts below erred in passing the impugned judgment and decree whereby the suit of the plaintiffs has been decreed. The plaintiffs have taken the plea of adverse possession which can not be raised for granting relief but can be given in view of the judgment passed in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 as well as judgment of this Court in the case of Munawwar Ali and Others Vs. Union of India and Others, 2018(3) MPLJ 360. It is further submitted that patta has not been produced by the plaintiffs in support of their submission therefore, plaintiffs took alternative plea regarding patta whereas original plea taken by the plaintiffs was in respect of adverse possession therefore, so called patta which has been tried to be taken by the plaintiffs has no evidential 7 Second Appeal No.564/2008 value. The trial Court erred in passing the decree on the basis of patta of more than 30 years, thus applied provisions of Section 90 of the Indian Evidence Act, same is illegal and perverse. To prove the so called patta, plaintiffs examined PW-2 Abdul Hafiz who has stated that Patta has been written by his father who was then Patwari (Ismile Khan) but this witness also did not prove the execution of the said patta.
12. Section 90 of the Indian Evidence Act will not come to rescue of the plaintiff because when the party to the document led the evidence to prove the document and there is no presumption with regard to authenticity of the document therefore, reliance over Section 90 of Evidence Act is misplaced. He relied upon the judgment of Hon'ble Apex Court in the case of Gangamma and Ors. Vs. Shivalingaiah, (2005) 9 SCC 359 and Sukhsen and Another Vs. Kamtaiya and Other, 1991 MPLJ 768. Statement of the father of PW-2 i.e. Ismile Khan was recorded in an early proceedings, in which defendant was a party (vide Ex.D-26) and such person in his statement in the Court has stated that with regard to survey no.1042/6, patta was executed in favour of Ramnarayan and Motilal but the first appellate Court erroneously held that the statement of PW-2 is more reliable then his father who has written the patta Ex.P-7. This finding is contrary to law in view of section 3 of the Evidence Act because in the proceedings, original plaintiff Brijbhushanlal was the party and he had the opportunity to cross-examine the witness. 8 Second Appeal No.564/2008
13. It is further submitted that plaintiffs failed to prove that property in dispute in earlier litigation between the parties were same as that of property in the present suit is. Hence earlier order has no effect so far as the property in dispute between the parties concerned. Plaintiff could not prove their case by preponderance of probability and the Court below erred in passing the impugned judgment. Because of the weakness of the defendant, suit cannot be decreed in favour of the plaintiffs. He relied upon the judgment of the Apex Court in the case of Sital Das Vs. Sant Ram And Ors., AIR 1954 (SC) 606, Mishrilal Vs. State of M.P. and Another, 1986 JLJ 451, Union Of India & Ors. Vs. Vasavi Co- Op. Housing Society, (2014) 2 SCC 269 and 1998 (2) MPWN
17.
14. It is further submitted that first appellate Court erred in allowing the application under Order 41 Rule 27 of CPC without following the procedure provided under Rule 28 of Order 41 of CPC. He relied upon the judgment of the Apex Court in the case of Shalimar Chemicals Works Ltd vs Surendra Oil & Dal, (2010) 8 SCC 423. Since the finding given by the Court below are contrary to law therefore, this Court has power to interfere in the findings. He relied upon judgment of the Hon'ble Apex Court in the case of Ramnivas Vs. Jagatbahadur Singh and Others, 2013(4) MPLJ 200, Easwri Vs. Parvathi and Others, (2014) 15 SCC 255.
15. On the other hand, learned counsel for the respondents/ 9 Second Appeal No.564/2008 plaintiffs matched the vehemence and submitted that earlier defendant No.2 Chironjilal filed a suit seeking declaration against Brijbhusanlal and the same has been dismissed having barred by the res judicata vide order dated 01/07/1997 (EX.P-2) and the same was confirmed vide Ex.P-23. Later on, it was confirmed up to High Court in Second Appeal No.391/1981 vide judgment dated 28/02/2006.
16. Chironjilal also filed a suit for claiming ownership of Survey No.1042/7 against Brijbhusanlal vide suit No.182/1986, but the same was dismissed vide Ex.P-24. Later on, judgment has been affirmed by the first appellate Court vide Ex.P-25 and thereafter, in S.A. No.283/1980 on 16/12/1981, it was affirmed. It is further submitted that earlier a report was requisitioned from Sadar Kanunngo and vide report dated 15/12/1943 (Ex.P-8), after demarcation, possession of land of survey no.1046/6 was given to Brijbhusanlal and when it is seen with the patta dated 14/04/1941 then it is clear that plaintiffs were the title holder and possessor of the suit property. Once the patta stands proved then no case is made out. Since defendant No.2 has not been adversely affected by the judgment passed by the Courts below therefore, he had no right to challenge the same as per the law laid down by the Hon'ble Apex Court in the case of Banarsi and Others Vs. Ramphal, AIR 2003 SC 1989.
17. It is further submitted that the Courts below have categorically opined that defendant No.2 has no concern with the 10 Second Appeal No.564/2008 suit property because party lost his so called right in respect of land vide survey no.1042/7 and once it is held that survey no.1042/7 is not in existence then defendants cannot come as fence sitter and obstructor in the proceedings. Defendant No.2 is not claiming any title over survey no.1042/6. Plaintiffs have proved the patta Ex.P-7 as per Section 67 and 69 of the Evidence Act, and he relied upon the judgment of this Court in the case of Kesarbai wd/o Hajari and Others, 2001(2) MPLJ 339, Indore Rolling Mills and Another Vs. State of M.P., 2007 (3) MPLJ 64 as well as Ramesh Kumar Vs. State of M.P., 1995 JLJ 750. He prayed for dismissal of the appeal.
18. Heard the learned counsel for the parties at length and perused the record.
19. In the case in hand, this Court vide order dated 04/05/2009 has admitted the appeal on following substantial questions of law, which are as under:-
(1) Whether, both the Courts below have committed an error of law in granting decree of declaration and injunction in holding that the plaintiffs are the owner of suit land ? (2) Whether findings and presumption recorded by both the Courts below with regard to execution of Patta Ex.P-7 dated 14.04.1941 is based on appreciation of evidence or it is based on the presumption and whether such presumption can be drawn in accordance with section 90 of the Evidence Act ?
(3) Whether both the Courts below have 11 Second Appeal No.564/2008 committed an error of law in relying on the demarcation proceedings and holding that the land in question is part and parcel of survey No.1042/6 ?
20. Looking to the nature of controversy and intermingly of issues/ questions involved, all three substantial questions of law are considered and decided analogously.
21. In the case in hand, appellants were defendants alongwith respondent No.6 Nagar Palika Vidisha and respondents No.1 to 5 were plaintiffs in the trial Court. The suit was filed for declaration and permanent injunction against Municipal Council, Vidisha initially. Later on at the instance of present appellants, they were impleaded as defendants on the basis of application under Order 1 Rule 10 of CPC. Written statements were filed by the defendants and on the basis of pleadings, as many as 20 issues have been framed by the trial Court in which issues No.1 and 2 were in respect of ownership and possession of the plaintiffs and on the basis of written Patta dated 14/04/1941 granted by then owner Mubarak Ali Shah to the husband/ father of the plaintiff Bankelal. Issues No.10 and 16 also go to the root of the matter. Here these issues were referred for the reason that after the judgment and decree passed by the trial Court in favour of the plaintiffs, no appeal has been preferred by the Municipal Council, Vidisha and accepted the judgment and decree passed by the trial Court. Only the present appellants who were impleaded later on, as defendants have challenged in First Appeal and later on in instant Second Appeal. Issues framed by trial Court are worth reproduction for 12 Second Appeal No.564/2008 ready reference which read as under:-
01& D;k oknhx.k oknxzLr Hkwfe ij HkwfeLokeh dh gSfl;r ls dkfct gS \ 02& D;k oknxzLr Hkwfe rRdkyhu oknxzLr Hkwfe ds Lokeh eqckfjdvyh 'kkg us fyf[kr iV~Vk fnukWd 14&4&4A ds }kjk oknhx.k ds ifr ,oa firk c`tHkw"k.k rFkk muds firk ckWdsyky dks nh Fkh rc ls gh os ml ij HkwfeLokeh dh gSfl;r ls dkfct gS \ 03& D;k izfroknh ds deZpkfj;ksa us fnukWd 17&6&79 dks oknxzLr Hkwfe es vfrdze.k dj ogkW yxh QflZ;ksa dks rFkk ydMh ds cksMZc yksgs ds 3 xkMj ,d Vz~d vyaxs ys tkus rFkk ydMh dh xeVh dks rksMus o oknhx.k dks ekjus dh /kkSl nsdj oknhx.k ds vkf/kR; es gLr{ksi dk iz;Ru fd;k \ 04& D;k izfroknh us fnukWd 23&6&79 dks oknxzLr LFkku es Qsflax djkdj rFkk fn0 9&9&79 dks oknxzLr Hkwfe ij 'kkldh; fuekZ.k djus dh /kedh nsdj oknhx.k sds vkf/kiR; es gLr{ksi dj iz;Ru fd;k \ 05& D;k oknxzLr Hkwfe izfroknh ds LokfeRo ,oa vkf/kiR; dh 'kkldh; Hkwfe gS \ 06& D;k oknhx.k oknxzLr Hkwfe ij tcju dCtk dj ekfyd cuus dk iz;Ru dj jgs gS \ 07& D;k ooknhx.k us okn dk mfpr ewY;kWdu ugh dj vi;kZIr U;k;'kqYd vnk fd;k gS \ 08& D;k bl U;k;ky; dks bl okn dks Jo.k djus dk Jo.kkf/kdkj {ks= izkIr ugh gS \ 09& D;k oknhx.k oknxzLr Hkwfe ftyk/;{k dk;kZy; ls gq, uki ds vk/kkj ij cus fn0 8&12&64 ds dkji focaf/kr gS \ 10& D;k izLrqr izdj.k esa MkW0 fpjathyky vko';d i{kdkj gS \ 11& D;k U;k;ky; O;ogkj U;k;k0 oxZ ,d ds iz0 dz0 151&,@63 b0 nh0 tks c`tHkw"k.kyky us nk;j fd;k Fkk] dk vafre :i ls fujkdj.k gksus ls ;g ;g okn izkx U;k; ds fl)kUr ds vk/kkj ij pyus ;ksX; ugh gS \ 12& D;k oknhx.k dk okn le;kof/k ckg~; gS \ 13& D;k oknhx.k dk okn oS/kkfud uksfVl ds vHkko es pyus ;ksX; ugh gS \ 14& D;k izfroknh oknhx.k ls 500@:0 fo'ks"k gtkZ ikus ds vf/kdkjh gS \ 15& lgk;rk ,oa O;; \ 16& D;k oknxzLr Hkwfe dk LokfeRo ,oa ml ij dCtk izfroknh dza0 2 dk gS \ 17& D;k oknxzLr Hkwfe ij izfroknh dza0A uxjikfydk fofn'kk izfroknh dza0 dh fdjk;snkj gS \ 18& D;k oknxzLr Hkwfe ls izfroknh dza0A }kjk gVk;s x;s Bsyk] xqeVh] cksMZ vkfn dk lkeku dza0 2 dk Fkk \ 19& D;k izfroknh dza0 2 oknhx.k ls 2000@&:0 fo'ks"k gtkZ ikus dk vf/kdkjh gS \ 20& D;k izdj.k es i{kdkjks ds vla;kstu dk nks"k gS \
22. So far as right, title, interest and possession of the plaintiffs was concerned, the trial Court dealt with the same in issues No.1 13 Second Appeal No.564/2008 and 2. The trial Court from para 5 to para 21 discussed in detail about the evidentiary value of patta (Ex.P-7) granted by the Mubarak Ali Shah in favour of the predecessors of the plaintiff Bankelal. The trial Court considered the testimony of plaintiff witnesses (PW-1) Kuldeep Jain as well as (PW-2) Abdul Hafiz. PW-1-Kuldeep Jain has made specific statement in examination- in-chief in the manner about the extent of land for which patta was granted to his predecessors by Mubarak Ali Shah. Perusal of Patta Ex.P-7 shows that it is in respect of Survey No.1042/6 and names of Bankelal and Brijbhusan appears. Both the Court below said that Patta is duly proved by Abdul Hafiz (PW-2) because his father Ismile Khan (then Patwari) written the said patta deed. The evidence of PW-1 and PW-2 if seen in juxtaposition then it appears that the trial Court rightly came to the conclusion and gave its finding about execution of Patta in favour of the plaintiffs husband/ father Brijbhushanlal/ Bankelal.
23. Interestingly, no attempt has been made by the defendants to shake the evidence of plaintiff (PW-1). In cross-examination of the said witness, no specific suggestion has been given about the alleged false theory of grant of patta and in absence of any such attempt, preponderance of probability would weigh in favour of the plaintiffs. Cross-examination of witness Abdul Hafiz (PW-2) also establishes the case of the plaintiffs. Besides that document Ex.P-7 which was patta of 1941 written by Ismile Khan (then Patwari) and his hand writing was proved by witness Abdul Hafiz 14 Second Appeal No.564/2008 (PW-2). The fact that document was 30 years old and was produced from the custody of the plaintiffs therefore, presumption under Section 90 of the Indian Evidence Act, 1872 (hereinafter referred as "the Evidence Act") goes in favour of the plaintiffs. Illustration A of Section 90 of the Evidence Act categorically goes in favour of the plaintiffs.
24. The submission of the appellants/ defendants in respect of document Ex.D-26 about the affidavit of Ismile Khan filed in some other proceedings is concerned, it infact establishes the case of the plaintiffs for the reason that in the said document, area of land of Survey No.1042/6 referred as 1 Bighas and 15 Biswas i.e. total 35 Biswas, out of which 9 Biswas was given to Ramnarayan and 5 Biswas of land was given to Motilal hence those two persons got total land of 14 Biswas out of 35 Biswas whereas plaintiff's predecessors got title (patta) only for 13 Biswas therefore, Ex.D-26 nowhere comes against the interest of the plaintiffs and nowhere establishes the fact that Patta was never granted to the plaintiff's father for Survey No.1042/6. Infact this fact is to be seen alongwith the report of 1943, by Sadar Kanungoo vide Ex.P-8 which also establishes the case of the plaintiffs.
25. The submission of counsel for the appellants that Ex.D-26 establishes the relevance of evidence given by Ismile Khan in earlier proceedings, truth of which would be applicable in subsequent proceedings as per Section 33 of the Evidence Act does not hold good because the conditions for bringing Section 33 15 Second Appeal No.564/2008 of the Evidence Act into operation are missing because Ex.D-26 is not in respect of proceedings viz a viz present one, reliance between the same parties or their representation in interest, nor the plaintiff had the right and opportunity to cross-examine the witnesses and the questions in issues were not substantially the same between the said proceedings, therefore, relevance over Section 33 of the Evidence Act is misplaced on facts as well as on law.
26. As referred earlier Ex.P-8 was another document which was the Sadar Kanungo report which indicates that the land vide Survey No.1042/6 was in possession of the Brijbhusan Lal. The said report dated 15/12/1943 of Sadar Kanungo refers the fact that Brijbhusan Lal was having possession over 13 Biswas over Survey No.1042/6. Infact, the said document refers the name of Motilal also and the name of Motilal also figures in Ex.D-26 therefore, infact case of the plaintiffs stands justified by production of Ex.D-
26. The said document Ex.D-26 appears to be of dated 26/09/1945, therefore, Ex.P-7, P-8 and Ex.D-26 are mutually co- existent and are not at loggerheads in any manner. The trial Court considered the said aspect and thereafter passed the impugned judgment.
27. Ex.P-16 was also the document issued by the Chief Municipal Officer, Municipal Council, Vidisha on 15/01/1954 which indicates that some permission was granted by the local body. One more interesting aspect in the controversy is that 16 Second Appeal No.564/2008 judgment dated 07/08/1978 (Ex.P-3) was the judgment given by Civil Judge Class-II, Vidisha in Civil Suit No.80-A/1970 in which after considering the rival submissions and framing the issues between the same parties, the trial Court came to the conclusion that Brijbhusan Lal (father of present plaintiff) was the owner and possessor of the suit property. Proceedings under Section 145 of Cr.P.C. was conducted between the same parties and vide order dated 26/11/1966 (Ex.P-2), Sub Divisional Magistrate, Vidisha has passed the order which was challenged by predecessor of appellants and vide order dated 21/08/1967 vide Ex.P-4 the revisional Court i.e. Additional Sessions Judge, Vidisha has affirmed the finding that father of the plaintiff is the owner and possessor of Survey No.1042/6. After appreciating those documents, the trial Court decreed the suit of the plaintiffs.
28. It is worth mentioning the fact that appellant/ defendant never tried to establish their case on the basis of cross objection (or cross-suit as the case may be) because they knew that earlier their predecessors have suffered. The predecessors of defendant Chironjilal also filed a suit for claiming right of Survey No.1042/6 against Brijbhusan Lal in COS No.182/1986 but the same was dismissed vide Ex.P-24. Later on, the judgment dated 10 th July, 1970 has been affirmed by the First Appellate Court in which in issue No.2, the trial Court has referred the fact that predecessors of plaintiff Chironjilal by sale deed did not have such number over it therefore, findings were negatived by the trial Court and the said 17 Second Appeal No.564/2008 judgment has been affirmed vide judgment dated 26 th July, 1980 passed by the District Judge, Vidisha vide Ex.P-25 and thereafter in S.A. No.283/1982 vide judgment dated 16/12/1981, the said judgment was confirmed.
29. Similarly, one more litigation was preferred by the predecessors and family members of the defendants on alleged pretext in respect of Survey No.1042/7, but the same was dismissed vide order dated 11/7/1977, on an application made by the present plaintiffs (respondent herein) under Section 11 of Cr.P.C treating it as res-judicata. The said order dated 11/7/1977 was confirmed in civil regular appeal vide judgment dated 03/04/1988 (Ex.P-23) and the said order has been affirmed upto this Court in S.A. No.321/1998 judgment dated 22/08/2006, thus, it is clear that on more than two occasions, through different proceedings, present appellant tried to disturb the title and possession of the plaintiffs but failed. All these aspects have been taken into account by the trial Court and passed the judgment and decree in favour of the plaintiff.
30. The appellate Court also took note of the said situation and after detailed discussion and appreciating the evidence passed the impugned judgment and decree and affirmed the judgment and decree passed by the trial Court.
31. From the fact situation it appears that plaintiffs have proved their patta Ex.P-7 independently by leading evidence and for that Kuldeep Jain as PW-1 and Abdul Hafiz as PW-2 deposed before 18 Second Appeal No.564/2008 the Court, therefore, if the controversy is seen from this angle also, then also it establishes the fact that plaintiffs were the title holder and possessors of the suit property. Although presumption can be drawn under Section 90 of the Evidence Act also because from their possession, patta Ex.P-7 was produced and the patta was the 30 years old document. The document was written by Ismile Khan and his son Abdul Hafiz (PW-2) recognized the hand writing of his father. The Hon'ble Apex Court in the case of Smt. Dayamathi Bai Vs. Sri K.M. Shaffi, AIR 2004 SC 4082 as well as Jagdish Prasad Patel(D) Thr. Lrs. vs Shivnath, (2019) 6 SCC 82 has dealt with similar fact situation wherein the document i.e. 30 years old document was given advantage of presumption regarding its genuineness. Here also document is 30 years old and therefore, it gives rise to the presumption as to its genuineness, because it is produced from the proper custody and in support of its execution, witness, Kuldeep Jain (PW-1) and Abdul Hafiz (PW-2) proved the execution and hand writing of the scribe of patta i.e. Ismile Khan was proved by his son Abdul Hafiz (PW-2).
32. No adverse effect surfaced in his cross-examination to doubt his deposition. Both the Court below relied upon the testimonies of these witnesses, therefore, on this count also appellant cannot get any mileage in the litigation. Although appellants herein have tried to raise the question of adverse possession on the basis of judgment rendered by the Hon'ble Apex Court in the case of Gurudwara Sahab Vs. Gram Panchayat Village Sirthala, 19 Second Appeal No.564/2008 (2014) 1 SCC 669, but in view of the recent pronouncement of the Hon'ble Apex Court in the case of Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors. Reported in Civil Appeal No.7764/2014 vide judgment dated 07 th August, 2019, the said plea is not maintainable and has been clarified by the Apex Court. Plea of acquisition of title by adverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the limitation Act, 1963 to sue on aforesaid basis in case of infringement of any right of a plaintiff.
33. So far as substantial question of law No.3 is concerned, from the record as well as judgments of the Courts below, it appears that the trial Court appointed Court Commissioner vide order dated 20/02/2003 and 14/04/2003 and arising out of the said order W.P. vide No.1259/2003 was filed and the same was dismissed by this Court vide order dated 05/05/2003. When Commissioner submitted his report, appellants raised the objection and the objection was rejected by the trial Court. Thereafter, W.P. No.2106/2003 was filed and vide order dated 17/07/2003, same was dismissed. Commissioner given its demarcation report and therefore, it attained finality. Therefore, this aspect has also been taken care of by the Courts below.
34. So far as application under Order 41 Rule 27 of CPC is concerned, appellants through the said application (IA No.15374/2017) has tried to bring certified copy of the plaint filed by the plaintiff before the Civil Judge Class-I, Vidisha in which 20 Second Appeal No.564/2008 copy of the plaint dated 20/03/1963 and the order dated 07/08/1964 whereby counsel for the then plaintiffs pleaded no instructions. Besides that, appellants have tried to bring certain more documents on record, but those documents including the sale deed of 1971 are of no relevance for adjudication of this litigation.
35. Even otherwise, through this application, appellants have not successfully demonstrated the due diligence factor and it appears that these documents are not helpful for reaching at just conclusion of litigation. It appears to be a dilatory tactics. Those documents are not such material documents which may change the fate of litigation conclusively therefore, documents are rejected to be taken on record. Provisions of Order 41 Rule 27 of CPC does not authorize any lacuna or gaps in evidence to be filled up at the stage of appeal. It is the duty of the litigating party to show due diligence. (See: N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, (2001) 7 SCC 503 and Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, (2008) 3 SCC
120) and recent pronouncement of the Hon'ble Apex Court in the case of Jagdish Prasad Patel (D) Thr. Lrs. Vs. Shivnath and Others, (2019) 6 SCC 82.
36. This Court is of the considered opinion that it is well settled that second appeal under Section 100 of CPC can only be heard on substantial questions of law. Here, the substantial questions of law tried to be asserted by the appellants were basically questions 21 Second Appeal No.564/2008 move around factual aspects. When two Courts below have decided the case by appreciating the evidence; documentary as well as oral then this Court cannot venture into the arena of trial Court or first appellate Court and cannot substitute its own findings (Gurdev Kaur & Ors Vs. Kaki & Ors. passed in Appeal (civil) 2083 of 2006).
37. This Court in the case of Rama Rao and Others Vs. Shantibai and Others, 1979 JLJ 383 has held that appreciation of evidence by the trial Court ought not be interfered casually because the trial Court has the advantage of seeing and hearing the witnesses while recording evidence.
38. Therefore, in the considered opinion of this Court, the trial Court as well as first appellate Court did not err in passing the judgment and decree of declaration and permanent injunction in favour of the plaintiffs specially when defendants never raised any cross-objection or cross-appeal and both the Courts below have rightly appreciated the evidence led by the parties and the substantial questions No.1, 2 and 3 are affirmed in a way that Courts below given findings regarding execution of patta vide Ex.P-7 while appreciating the evidence correctly and even with the help of presumption drawn in accordance with section 90 of the Evidence Act and in this aspect also no illegality has been committed because plaintiffs have established the evidence as per Sections 63, 65 and 67 of the Evidence Act and execution of documents have been proved. (See: Smt. Rekha Rana And Ors. 22 Second Appeal No.564/2008
Vs. Smt. Ratnashree Jain, AIR 2006 (MP) 107).
39. Besides that, no error of law has been committed by the Courts below in relying on the demarcation proceedings and holding that the land in question is part and partial of survey No.1042/6. Plaintiffs have otherwise also proved that the suit property is over Survey No.1042/6. Findings given by the Courts below are just and based upon evidence, needs no interference.
40. In the considered opinion of this Court, the Courts below have rightly passed the impugned judgment and decree in favour of the plaintiffs. Substantial questions of law are answered accordingly on the basis of preceding analysis.
41. Appeal sans merits and the same is hereby dismissed.
42. No costs.
(Anand Pathak) Judge vc VARSHA CHATURVEDI 2019.09.03 12:36:22 -07'00'