HARMINDER SINGH Vs. NACHATTAR SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 8. 2. 1992 of the District Judge, Sangrur, allowing the application of the defendants to lead additional evidence in appeal.

(2.) BRIEFLY the facts are that one Darbara Singh alias Darbari was owner in possession of the suit land measuring 99 Bighas 16 Biswas. Barbara Singh adopted Harminder Singh (petitioner herein) as his son vice a registered adoption deed dated 17. 7. 1956. Letter the deed was got cancelled by him. Against the cancellation of the adoption deed, the petitioner filed a suit agains Darbara Singh. The suit was decreed on 24 4. 1959 and it was held that Darbara Singh had no right to revoke the adoption deed. On 17. 7. 1965, Darbara Singh made a gift of the suit land in favour of Nachhattar Singh and Milkha Singh defendants. The petitioner by another suit challenged the gift made by Darbara Singh. The suit was decreed on 31. 5. 1969 declaring the gifts to be null and void. First appeal second appeal as well as the Special Leave Petition against the judgment were dismissed. The petitioner thereafter filed suit, out of which the present revision petition has arisen, against Nachhattar Singh and Milkha Singh for possession of the suit land on the basis of title and on the allegation that Nachhattar Singh and Milkha Singh have no right or title in the property. On appearance, Nachhattar Singh and Milkha Singh filed written statement. Apart from denying the averments made in the suit, preliminary objections were raised in the written statement stating that the land measuring 25 Bighas 7 Biswas was under the mortgage with Jaimal Singh, their father, vide mortgage deed dated 9. 5. 1943. Land measuring 18 Bighas 1 Biswa and land measuring 9 Bighas 1 Biswa was also stated to be under mortgage with them. The plaintiff never got the land mortgaged redeemed during the period of limitation and, therefore, is not entitled to possession. The suit was decreed. Nachhattar Singh and Milkha Singh being aggrieved of the judgment and decree of the trial Court filed an appeal During the pendency of the appeal, they made three successive applications under Order 41, Rule 27, C. P. C. , seeking permission to adduce additional evidence In the first application, permission was sought to produce original mortgage deeds dated 9. 5, 1943 and 14. 10 1950 and also the certified copy of another mortgage deed dated 4 10. 1931. It was alleged that the deeds were not known and traceable with them since they were produced by their ancestors in some other cases in the second application, judgment dated 18. 2 1962 passed in a civil suit filed by Darbara Singh was sought to be produced. Darbara Singh had filed a suit for possession against Nachhattar Singh and Milkha Singh, but the same was dismissed in the said suit findings were returned that Nachhattar Singh and Milkha Singh were mortgagees and, therefore, Darbara Singh was not entitled to seek possession without getting the land redeemed. The third application was made to seek permission to produce pleadings and issues of the suit filed by Darbara Singh the applications, on contest were allowed. They were permitted to produce and prove by way of additional evidence three mortgage-deeds, judgment and decree dated 28 11. 1963 passed by Shri Narpinder Singh, Sub Judge Ist Class, Malerkotla. However, they were not permitted to produce on record the pleadings of the said suit. The District Judge instead of asking them to produce additional evidence in appeal, remitted the case to the trial Court to record additional evidence after affording opportunity to the plaintiff to rebut the same and then submit his report on issue Nos. 5, 6 and ? within three months. The order allowing the applications for additional evidence is being challenged by this revision petition.

(3.) MR. Viney Mittal, Counsel for the petitioner, has impugned the order on the ground that there are no pleadings for which the additional evidence is now sought to be produced. According to him, the application for amendment was dismissed by the District Judge and therefore, the defendants are not entitled to produce additional evidence. The second contention was that the Court cannot allow the leading of additional evidence to fill in the lacunae left by the party. He also submitted that additional evidence has to be limited to the requirement of the Court in such cases where it found it necessary to obtain such evidence for enabling it to pronounce the judgment whereas in the present case the Court has not given any finding that the additional evidence is necessary for the proper pronouncement of the judgment.