BIRA ALIAS BIRU Vs. CHANDER AND OTHERS

JUDGEMENT

(1.) Present petition under Article 227 of the Constitution of India for setting aside order dated 9.10.2015 [Annexure P/6] passed by Additional District Judge, Jind whereby, application filed by the petitioners under Order XXXXI Rule 27 read with Section 151 CPC for leading additional evidence was dismissed.

(2.) Relevant facts for the purpose of decision of the present petition; that defendants filed an application under Order XXXXI Rule 27 read with Section 151 CPC for leading additional evidence during the pendency of the appeal before learned Additional District Judge, Jind. The plaintiffs filed a suit for declaration claiming themselves to be daughters of Moji Ram son of Lakhia, who died prior to 1960. However, the date of death of said Moji Ram was not mentioned. In fact, said Moji Ram had died prior to the commencement of Hindu Succession Act, 1956 [for short, "the Act"] and if a person had died leaving daughters alone prior to coming into operation of the Act, then only collaterals/brothers were entitled to succession and not his daughters. Later on, one of the applicants visited Ganga Mandir Thakur Dwara, Garh Mukteshwa, District Hapur where he met his Purohit, Lokesh Kumar Sharma who used to maintain the birth and death records of the family and at that point, he came to know from the said Purohit that Moji Ram had died on 13.12.1954 and his wife also died on 1.11.1954. Lokesh Kumar Sharma had sworn an affidavit in that respect and also handed over photocopy of his bahi entry which is admissible evidence and for that purpose, application for additional evidence was filed before the Court below.

(3.) The said application was contested on the ground that the same was not maintainable as the same was filed at a belated stage. More so, the applicants were fully aware about their case right from the beginning. Plea was also taken that at the time of death of their father, the plaintiffs were minors and as such, they were having no knowledge about the death of their father as they were six years and 2 years old respectively and mutation Nos. 403 and 404 were attested on 25.6.1961. More so, the additional evidence which the applicants wanted to lead was not relevant and allowing the same shall give rise to de novo trial and the same is not permissible as per law and prayed that the application be dismissed.