JAI NARAIN PANDEY Vs. LALLAN TIWARI

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for declaration of sirdari rights in respect of the plot in dispute. The plaintiff alleged that the defen dant, Jai Narain Pandey was a permanent lessee of the plot in dispute who settled the land with the plaintiff and his father. Con sequently he was recorded as an occupant in the cultivatory possession in the crucial years of 1356 and 1359-F and became sir dar. He further alleged that right, title and interest of the landholder extinguished on the enforcement of U. P. Act No. XX of 1954. However, as the names of the plain tiffs had been omitted from the record for sometime past, he filed the suit for declara tion of his rights. This suit was contested by Jai Narain Pandey on a variety of grounds, inter alia, refuting all the allega tions made by the plaintiff and asserting that he was a permanent lessee with trans ferable rights and had become Bhumidhar on the enforcement of U. P. Act No. I of 1951 and is in possession of the plot in dis pute in his own right. The trial court held that the plaintiffs were not sirdars and the suit was barred by time. On these findings the suit was dismissed. Against that deci sion the plaintiffs preferred an appeal. The appellate court below reversed the finding recorded by the trial court and allowed the appeal and decreed the suit. The defendant has now come to this Court in second ap peal.

(2.) IT appears that before the ap pellate court below the plaintiffs filed certi fied copies of the extracts of Khasra for the years 1354, 1355, 1357 and 1358 Fasli. The application filed by the plaintiffs Was supported by an affidavit of Kanhaiya Lal, who is respondent No. 2 in this ap peal. He stated in his affidavit that the papers sought to be filed were not within his knowledge despite exercise of due dili gence and as such the certified copy thereof could not be obtained. He further alleged that those papers were relevant and neces sary for the proper decision of the case. No counter-affidavit rebutting these allegations was filed by the plaintiff appellant. He simply filed an objection to the effect that the applicants had no right to file the papers under Order 41, Rule 27 C. P. C. and no sufficient ground had been disclosed" for. admitting those papers in appeal. The fact that the present respondents in spite of due diligence could not have the knowledge of those papers, was, however, not repudiated. The appellate court below admitted those papers in the interest of justice subject to payment of Rs. 10/- as costs. This costs of Rs. 10/- was paid to the defendant as would appear from the endorsement made on the application 16-Ga. The learned counsel for the defendant-ap pellant has urged that the appellate court below erred in admitting the said papers as additional evidence under Order 41, Rule 27 Civil P. C. inasmuch as the mandatory re quirements of that provision of law were not complied with nor the conditions for ad mitting those papers were in existence. In support of his contention be placed reliance on the two decisions of the Supreme Court viz., Arjan Singh v. Kartar Singh, AIR 1951 SC 193 and the Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008. In Arjan Singh's case AIR 1951 SC 193 (Supra) it was laid down that the discre tion given to the Appellate Court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be ad duced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non-existent.

(3.) IN sub-rule (1) of Rule 27 of Order 41, Civil Procedure Code clause (b) has been added by this Court which reads at follows:-