BRIJ BHAN Vs. RAVISH TREHAN

JUDGEMENT

(1.) The present petition is directed against order dated 13.05.2019 (P-1) passed by learned Civil Judge (Jr. Divn.) Faridabad whereby application (P-2) under Section 151 CPC for additional evidence filed by the plaintiff-respondent herein, has been allowed. Brief facts of the case are that plaintiff-respondent has filed a suit for possession submitting that he is owner of 327 kanals 16 marlas of land situated in revenue estate of village Ankhir, Tehsil Badkhal, District Faridabad, as detailed in para No. 1 and 2 of the plaint. The plaintiff has submitted that defendant-petitioner is neighbourer of plaintiff-respondent has encroached and trespassed land of the plaintiff-respondent measuring 2 kanals 14 marlas out of Rect. No. 61, Killa No. 23/1/2(4-0), Rect No. 65, Killa No. 3/1/2(0-18), Killa No. 3/3(1-10), Killa No. 4/2/2(1-0).

(2.) The plaintiff-respondent moved an application before Tehsildar, Badkhal for demarcation of the suit property vide application dated 14.03.2019 and the same was allowed on the very same day. The office of Kanungo, Badkhal was directed to demarcate the land detailed in para No. 2 of the application. The demarcation was carried out through DGPS machine through Akash surveyor of Latest Card Surveyor and found that defendant-petitioner has encroached and trespassed the land of plaintiff-respondent. The certified copy of demarcation report dated 19.03.2019 was provided to plaintiff-respondent only on 10.04.2019. Learned counsel for the petitioner contends that the plaintiff- respondent was granted number of opportunities to lead evidence since 16.08.2017 and vide zimini order dated 11.03.2019, the oral evidence of the plaintiff-respondent was closed and at that point of time, no prayer was made by the plaintiff-respondent to file the demarcation report. Learned counsel submits that the defendant-petitioner has filed his examination in chief on 08.04.2019 and on the request of plaintiff-respondent, the case was adjourned for cross examination for 11.04.2019.The application for leading additional evidence was filed at a very belated stage and should not have been allowed.

(3.) Learned counsel for the petitioner is relying upon judgments of this Court in cases of Saroj vs. Charan Singh and others , 2017(4) PLR 674 and Amarjit Singh vs. Rachhpal Singh and another , 2017(2) PLR 349. Heard learned counsel for the petitioner. The judgments cited by learned counsel for the petitioner are not applicable to the facts of the present case, as in Saroj's case (supra), the suit had been filed in the year 2006 and issues were framed in May, 2007. After closure of evidence of the plaintiff, the defendants were granted 06 opportunities to lead evidence, which was closed on 15.02.2010. It is thereafter, defendant No. 2 came to know that her father had filed a suit in the year 1972 and the plaint, vakalatnama and the replication of that suit had been thumb marked by the father. Thus, she wanted to lead additional evidence but the application was dismissed as there was nothing on record to show that defendants could not produce their evidence inspite of exercise of due diligence. The applicant had failed to challenge the order closing the evidence.