ASHRAFI DEVI Vs. DEVI SINGH

JUDGEMENT

(1.) [Ed. facts : Plaintiffs sued Deft. for possession of land and building in suit alleging that their predecessor, Shiv Charan had bought 200 sq. yds. by sale deed dt. 20.1.62 and adjacent 320 sq. yds by another sale deed and after death of Shiv Charan on 8.8.71, plaintiffs as heirs became owners. They pleaded that deft. had illegally occupied the property about 3 years back and built a room. Deft. denied ownership of plaintiffs and of Shiv Charan and contended himself to be owner and in the alternative owner by adverse possession. Trial Court held that plaintiffs had failed to prove ownership and also held that Deft. had not established his adverse possession. Plaintiffs filed appeal before Distt. Judge and also applied for giving additional evidence (sale deeds) to establish their ownership. Deft. opposed this. ADJ dismissed the application and plaintiffs filed revision against this.] After detailing above, decision is :-

(2.) A bare reading of 0. 41, R. 27, CPC makes it abundantly clear that the additional evidence, whether oral or documentary, can be allowed if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, which is not the position in the present case. The case of the plaintiffs could be covered by Clause (aa) according to which the plaintiffs have to prove that notwithstanding the exercise of due diligence the evidence was not within their knowledge and could not after the exercise of due diligence be produced by them. Is there any material on record to substantiate this plea of the plaintiffs and my answer is in the negative. It was well within the knowledge of the plaintiffs that their ownership is being denied by the defendant and it was even reflected from the cross-exam, of PW/1, the previous owner from whom the plots were stated to have been purchased by Shiv Charan. All that was required of the plaintiffs was to ask for this document from PW/1 either at the time he was examined in Court or at any time thereafter during the pendency of the suit. After the copies of the Khasra Girdawari were tendered in evidence by the defendant, an opportunity was given to the plaintiffs to produce evidence in rebuttal. But even at that stage no efforts were made by the plaintiffs. It may also be noted at this stage that the Suit was filed on 23.7.1979 PW/1, Vidya Parkash Sethi was examined on 15.7.1982. Plaintiffs closed their evidence in affirmative on 10.3.1987, while the defendant closed his evidence on 27.7.1987 and the plaintiffs closed their evidence in rebutal on 4.8.1987. No such application was moved before the Trial Court It has not been made clear by the plaintiffs as to how they were vigilant in getting this evidence placed on record. It is not sufficient compliance of this provision to urge that the plaintiffs were diligent and in spite of due diligence this evidence could not be produced on record.

(3.) In exercise of the powers u/0. 41, R. 27, CPC the Appellate Court can permit the production of additional evidence if it requires any document to be produced or any witness to be examined to enable it to pronounce judgement or for any other substantial cause. It is, thus, clear that the additional evidence can be permitted on a request of a party who in spite of due diligence was not in a position to produce the same or when the Court finds it necessary for the decision of the case or any other substantial cause. A perusal of the order shows that the Court did not consider it necessary to have this evidence for just decision of the case and this evidence is not required by the Court. Can in these circumstances it be said that the prayer of the plaintiffs for permission to produce this additional evidence has been declined, resulting in injustice to the plaintiffs and my answer is in the negative.