MANJIT SINGH AND ANR. Vs. MANORATH SINGH KOHLI

JUDGEMENT

(1.) HAVING suffered judgments and decrees against them, the defendants have come in appeal before this Court. With the filing of the appeal, an application for leading additional evidence under Order 41 Rule 27 of the CPC has also been filed. Before going to the merits of the appeal, it is deemed appropriate to consider the application for additional evidence. Through the medium of this application, the appellants/applicants want to place on record copy of Sanad Allotment and Jamabandi for the year 1958 -59. The documents were in existence in the year 1958 -59, but the same have not been produced before the courts below particularly during the trial, even though the suit was instituted in the year 1998. The only averment made in paragraph 2 of the application is that the document was not in the knowledge of the appellants and could not be produced after exercising due diligence. This averment is not supported by any details or materials to show that how the due diligence was exercised.

(2.) IT is the case of the defendants/appellants in the written statement itself that the property at village Dhulkot was sold by the plaintiff, their father in the year 1967. Even after having made these averments, no attempt was made to summon the revenue record or even to secure the copies of the relevant documents, including Jamabandi for the year 1958 -59 and Sanad Allotment and produce the same in the Court by way of evidence. Exercise of due diligence is sine qua non for production of additional evidence under Order 41 Rule 27 of the CPC. There is absolutely no averment regarding the manner of exercise of due diligence. A bare statement that due diligence was exercised is not enough to sustain the plea of additional evidence. There is no merit in this application which is hereby rejected.

(3.) THE defendants who are two amongst the four sons of the plaintiff, pleaded that the plot under the house was purchased by the plaintiff in the year 1969 after selling the ancestral property in the year 1967 and the house was constructed with the sale proceeds of the ancestral property. They also pleaded that they contributed for the construction and also secured loan from the Bank. The defendants also pleaded that even the loan secured by their father -plaintiff is being re -paid by them and relied upon some of the receipts regarding re -payment of the loan amount. The defendants further pleaded that a family settlement -cum -compromise was arrived at between the parties on 14.4.1997 whereunder the suit property was given to the defendants i.e. half share of the house leaving rest half share for the other two sons of the plaintiff. On the basis of the pleadings of the parties, the trial Court framed following four issues: