BHUPINDER SINGH Vs. MAHAVIR SINGH

JUDGEMENT

(1.) This appeal has been directed against the impugned judgment and decree dated 24.11.2010 which had endorsed the finding of the trial judge dated 01.3.2008 whereby the suit of the Plaintiffs seeking possession of the suit property as also mesne profits was decreed.

(2.) The factual matrix of the case is as follows:

(3.) This is a second appeal. It is yet at its initial stage. On behalf of the Appellant, it has been urged that the Appellant had exercised all "due diligence". But in spite of the exercise of the said "due diligence" he could not produce his evidence in defence before the trial judge. Contention is that the Appellant/Defendant was a resident of Canada. He had given a power of attorney to his friend Kulwant Singh who had appeared in Court but thereafter because of strained relations between the parties he did not choose to contest the case. A fresh power of attorney in favour of the daughter of the Appellant/Defendant was executed on 21.8.2008 and on the same day she had moved an application under Order 41 Rule 27 of the Code seeking permission to file additional evidence. Bonafide and due diligence on the part of the Appellant are made out. Appellant had suffered because of the negligence and indifference of his friend Kulwant Singh over whom he had complete trust but this trust was betrayed by him. This is a fit case where permission should have been granted to adduce additional evidence. It is pointed out that an application of similar nature is pending before this Court also. Reliance has been placed upon a judgment reported in 2010 VI Akhtari Khatoon (since deceased) (Mst.) v. Smt. Rajeshwari Devi to support his submission that the provisions of 41 Rule 27 of the Code are attracted and the additional evidence can be led even at this stage. On merits, it is contended that the document in question i.e. the document dated 31.3.1971 had to be read not from its nomenclature but from the contents of the document; attention has been drawn to para 5 of the said document. It is pointed out that what was intended between the parties was the creation of a licence and not a lease. Admittedly, after the execution of this document, the Defendant had created a super structure of permanent character on the vacant land. In terms of 3