MAUJI RAM Vs. ONKAR SINGH

JUDGEMENT

(1.) THIS is an application under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure for permission to lead additional evidence and to take on records copies of the documents as referred in this application.

(2.) PERMISSION to lead additional evidence is circumscribed by the conditions stated in Sub-rule (1) to Rule 27 of Order 41 of Civil Procedure Code. This application does not state any reason as to why these documents could not be produced before the trial Court or the First Appellate Court for all this period. The provisions require that if the party was not able to lead the evidence inspite of due diligence or such an evidence was not in his knowledge and he could not produce the same inspite of exercise of due diligence, none of these conditions are satisfied in the present case. Not even a whisper has been made in this application of two para graphs as to which of the conditions the applicant-appellant satisfies so that the Court could favourably consider the production of additional evidence at the stage of second appeal. Production of additional evidence at the appellate stage cannot be construed to be a routine, matter because it is bound to result in some prejudice to the other party and in some cases may have to be remanded back to the trial Court, thus, putting the other party to great exposure and unnecessary prolongation of the litigation. The documents stated in the application had always been in power and possession of the applicants. They had a definite knowledge of all those proceedings. One fails to understand the reasons for their non-production for all the times. This application has no merit and the same is dismissed. REGULAR SECOND APPEAL No. 105 of 1998 (O&m) I have heard the learned counsel for the parties. The learned counsel for the appellants raised mainly one contention for the consideration of the Court. It is contended by the learned counsel for the appellants that the judgments of the Courts below are upon an earlier decision between the parties, where the suit of the present respondents was decreed by the trial Court. Appeal against that judgment and decree was dismissed and the decree was executed. His contention, therefore, is-that in that suit the plaintiffs had only claimed the relief in regard to 13 Kanals and 8 Marlas in Suit No. 266 of 1978/592 of 1981 for which decree was passed, while the present suit has been decreed for 16 Kanals 14 Marlas, though part of the same khasra numbers. According to him this is an error apparent on the face of the record and, the judgments of the Courts below cannot be allowed to stand. During the course of hearing the learned counsel for the appellants had submitted the copies of the records before the trial Court. 4. After going through the records I am of the considered view that the argument of the learned counsel for the appellants is entirely misconceived. While filing the present suit, the respondents herein had clearly stated their case without ambiguity. No doubt the entire land is situated in khasra No. 729 (12k-04m), 744 (4-10)min. They following paras No. 1 to 3 of the plaint clearly state the case of the respondents.

(3.) THAT the plaintiffs in order to get the possession of the encroached portion of the land in dispute, have to file execution application in the court of S. Chanan Singh, Sub Judge, 1st Class, Pathankot and vide order of the Court the warrants of possession were issued by the Id. Court and it was found that the construction on the encroached portion of the land in dispute have been raised by the defdts, for which the defts. were asked to remove the construction thereof by the time fixed by the court. The defdts did not remove the construction and that the possession of the encroached portion of the land in dispute was ordered to be delivered to the plaintiffs. "