Punjab-Haryana High Court
Shri Daya Nand Dahiya vs Shialu Singh on 18 August, 1990
Equivalent citations: (1990)98PLR577
JUDGMENT N.C. Jain, J.
1. This appeal has been directed against the judgment and decree of the lower appellate Court dismissing the suit of the plaintiff appellant.
2. The facts of the case which are necessary for deciding the appeal may be recapitulated. The plaintiff filed suit for possession of the disputed land on the ground that one Maiya Ram initially sold a plot of 200 squre yards to one Rati Ram, Advocate, Gohana, vide sale deed registered on 28-9-1960. The land is comprised in Khasra No. 1440 Rati Ram sold the aforesaid plot to Dhanpal Singh of Gohana and handed over possession of the same to him. The aforesaid Dhanpal Singh divided the plot into three sub-plots. One sub-plot was sold by him to the plaintiff-appellant vide registered sale deed dated 30-7-1969. Another sub-plot was sold by Dhanpal Singh to Hawa Singh. The third-sub plot was sold to Jawala Parshad. The plaintiff purchased one of the sub-plots from the widow of Hawa Singh after the death of Hawa Singh Out of the third sub-plot, the plaintiff purchased 27 square yards from Jawala Parshad as well and in this manner be became the owner of 156 square yards. The dispute regarding possession having arisen between the plaintiff-appellant and the defendant and defendant having been declared to be in possession of the disputed plot by the SDM the necessity of filing the civil suit had arisen. The suit was decreed by the trial Court. However, on appeal, the judgment and decree of the trial Court has been reversed.
3. The learned counsel for the plaintiff-appellant at the outset has argued that Maiya Ram was the proprietor in the village and had a share in Shamilat which is evidenced by Jamabandi of the year 1957-58. This Jamabandi was sought to be produced by way of additional evidence. It is sought to be contended that if Maiya Ram was proved to be the proprietor in Shamilat and he was in possession of some un-partitioned share, he could certainly sell that part of the land, which was in his possession, to the plaintiff. On the other hand, the learned counsel for the defendant respondent has argued that the plaintiff is neither proved to be the owner nor in possession of the disputed land as whatever share he had in any unpartitioned Khata in Shamilat land, the same was sold by him to various persons whose names are mentioned in the mutations Exhibits D-3 and D-4.
4. After hearing the learned counsel for the parties and after giving my thoughtful consideration to the entire matter, I am of the view that the appellant has been able to make out a case for production of additional evidence in the shape of Jamabandi for the year 1957-58. It has been held by the Hon'ble Supreme Court in K. Venkataramiah v. A. Seetharama Reddy and Ors., A.I.R. 1963 S.C. 1526, that appellate Court is entitled to admit additional evidence for any other substantial cause In any case, this Court feels that the additional evidence can well be permitted within the ambit and scope of Order 41 Rule 27(b), of the Cede of Civil Procedure. In view thereof, I permit the production of additional evidence. Since the additional evidence is being permitted to be produced by this Court for the first time, the defendant-respondent has to be given the right of rebuttal At this stage, the counsel for the defendant-respondent has brought to my notice that Maiya Ram had no right to sell on account of the land having vested in Panchayat in view of the Punjab Village Common Land (Regulations) Act, 1944. If any such plea is taken before the trial Court, the trial Court would permit the amendment and would frame necessary issue. The trial Court on additional issue would give the parties an opportunity of leading evidence.
5. For the reasons recorded above, the appeal is allowed, judgment and decrees of the Courts below is set aside and the case is remanded to the trial Court for fresh decision. The trial Court is directed to decide the suit expeditiously. The parties through their counsel are directed to appear before the trial Court on 24-9-1990.