LABH SINGH Vs. BACHAN SINGH

JUDGEMENT

(1.) This is defendants' appeal against whom the suit for declaration has been decreed by both the Courts below.

(2.) The plaintiff Bachan Singh instituted the suit for the grant of the declaration that the ex parte decree dated October 6, 1970, in the earlier suit Labh Singh v. Ajmer Singh and others, and the sale deed executed in consequence thereof was a nullity and inoperative against his rights of ownership and possession, the same having been obtained by fraud and misrepresentation. A further prayer was also made for the grant of the permanent injunction restraining the defendants from executing the decree or alienating the property in any way. Shrimati Angrez Kaur, widow of Bakhtawar Singh, was the original owner of the suit land.

(3.) During the pendency of the appeal, Labh Singh, appellant, died. Two separate applications were filed to bring on record the applicants as the legal representatives of Labh Singh, deceased. Since there was dispute inter se between the applicants as to who were the legal representatives of Labh Singh, deceased, this Court vide order dated May 15, 1987, allowed both the applications with the observations that their inter se dispute, if any, will be decided independently in appropriate proceedings. During the penency of the appeal, the appellant also moved Civil Miscellaneous Application No. 1210-C of 1978, for permission to produce additional evidence under Order 41 rule 27, Code of Civil Procedure. By virtue of the said application, he wanted to place on the record the report of the expert, Shri Ganga Parshed along with the enlarged photographs. According to the averments made therein, the thumb-impression of Shrimati Angrez Kaur on the will, Exhibit P.1, was got compared by the appellant privately with the admitted thumb-impression on the deed of cancellation, Exhibit PW 13/1, dated August 7, 1967. Since, according to the expert, both the thumb-impressions did not tally with each others, evidence in this regard should be allowed to be produced on the record by way of additional evidence. In any case, it was argued on behalf of the appellant that since the cancellation deed is already on the record, it will be in the interest of justice if both the thumb-impressions. i.e., on the will, Exhibit P.1 and the cancellation deed, Exhibit PW 13/A, are compared by an expert. The said application was vehemently opposed on behalf of the plaintiff-respondent on the ground that the defendant could not be allowed to fill up the lacunae at this stage. It was open to him to produce this additional evidence at the trial. Having failed to produce the same he could not be allowed to produce it now.