KULDEEP KUMAR Vs. N.S.NEGI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India was filed by the petitioner challenging the order dated 26.8.2002 passed by the District, Judge, Shimla whereby the application under Order 41 Rule 27 C.P.C. filed by the present respondent in the appeal pending before the District Judge was allowed and the present respondent was allowed to produce additional evidence in the appeal pending before him. 2.The facts which are relevant for the decision the present petition are that N. S. Negi (present respondent) had filed a suit for permanent prohibitory and mandatory injunction against Kuldeep Kumar (Present petitioner) in respect of land comprised in Khasra No. 377, with the allegations that the defendant had started encroaching upon the suit land belonging to the plaintiff. It was also alleged that the defendant had constructed his house in his own land comprised in khasra No. 378. in the written statement it was admitted by the defendant that he had raised construction in his own land comprised in khasra No. 378 and that he was raising construction over his remaining land also comprised in khasra No. 378. It was denied that the defendant had made any encroachment over the suit land comprised in khasra No. 377. After hearing both the sides, the learned Trial Court dismissed he suit of the plaintiff. Aggrieved against the same, the plaintiff filed appeal. During the pendency of the appeal before the learned District Judge, the plaintiff -appellant filed an application under order 41 Rule 27 C.P.C. for permission to prove the record of demarcation proceedings, by way of additional evidence. In the said application, it was alleged that the revenue agency after due verification on 2.4.2000 had demarcated the lands of the plaintiffs and defendant and it was found by the Kanungo, Settlement that the defendant had encroached upon a portion of the land owned by the plaintiff. This application filed by the plaintiff -appellant before the District Judge was opposed by the defendant by filing a reply. It was alleged that no demarcation was carried on 20.4.2000 and that no case was made out for permitting the plaintiff to produce the demarcation proceedings by way of additional evidence. After the reply was filed on behalf of the defendant -respondent in the appeal, the learned District Judge fixed the case for argument in the main appeal as also the application for additional evidence. After hearing the learned counsel and perusing the record, the learned District Judge vide order dated 26.8.2002 allowed the application of the plaintiff -appellant under Order 41 Rule 27 C.P.C. and allowed him to produce the demarcation report dated 20.4.2000 by way of additional evidence. Aggrieved against this order dated 26.8.2002, the defendant had initially filed revision petition under Section 115 C.P.C. Subsequently, it was converted into a petition under Article 227 of the Constitution of India. 3.I have heard the learned counsel for the parties and have gone through the record carefully.

(2.) As referred to above, the plaintiff had filed a suit for permanent prohibitory and mandatory injunction against the defendant with the allegations that he was owner in possession of Khasra No. 377 while the defendant was owner in possession of Khasra No. 378 and that the defendant had started encroaching upon the land of the plaintiff comprised in Khasra No. 377. This fact was denied by the defendant in the written statement. Under these circumstances, in my opinion, it was necessary to demarcate the suit land so as to come to the conclusion as to whether the defendant had encroached any portion of the suit land belonging to the plaintiff. Before the Trial Court, no evidence was produced by plaintiff with regard to the demarcation of the suit land. On the other hand, the defendant had produced a demarcation report with respect to his own land comprised in Khasra No. 378. After the suit filed by the plaintiff with regard to the demarcation of the suit land. On the other hand, the defendant had produced a demarcation report with respect to his own land comprised in Khasra No. 378. After the suit filed by the plaintiff was dismissed by the Trial Court, the plaintiff had filed an appeal. It was during the pendency of the appeal that the plaintiff -appellant had filed the application under Order 41 Rule C.P.C. for production of the demarcation report dated 20.4.2000 by way of additional evidence. It may be mentioned here at this stage that this demarcation report had come into existence during the pendency of the appeal before the District Judge, inasmuch as the appeal was filed in the Court on 3.9.1999, whereas the aforesaid demarcation report is dated 20.4.2000. It was on 24.5.2000 that the plaintiff -appellant had filed the application under Order 41 Rule 27 C.P.C. for production of the said demarcation report dated 20.4.2000 by way of additional evidence. Thus, it could not be said that there was any delay on the part of the plaintiff -appellant in filing the application for additional evidence, inasmuch as the same was filed in the Court just after one month of the demarcation report having come into existence.

(3.) The learned District Judge had fixed the case for arguments in the appeal as also in the application for additional evidence. After hearing the arguments in the appeal and the application for additional evidence, the learned District Judge found that having regard to the nature of the controversy between the parties, the demarcation report dated 20.4.2000, which is sought to be adduced by way of additional evidence, will help the Court in reaching more effective decision regarding the controversy between the parties. While coming to this conclusion it was found by the learned District Judge that the dispute between the parties could be settled if the demarcation report dated 20.4.2000 is allowed to be produced by way of additional evidence since this would held the Court in reaching to a more effective decision regarding the controversy between the parties. It is now well settled that in a suit of I this kind it is necessary to get the property demarcated so as to come to the I conclusion as to whether the other side had encroached any portion of the suit j property claimed by the plaintiff. Keeping in this view, in my opinion, the learned District Judge was perfectly justified in allowing the production of the demarcation report dated 20.4.2000 by way of additional evidence, as the same would help the Court in deciding the controversy between the parties. Thus, no fault could be found with the order dated 26.8.2002, passed by the learned District Judge while allowing the plaintiff -appellant to produce the additional evidence in the appeal. Furthermore, I am of the opinion that the learned District Judge had rightly observed that the respondent in the appeal who is the petitioner in the present petition would also be entitled to lead the evidence in rebuttal to the additional evidence sought to be produced by the plaintiff -appellant. In this manner, the learned District Judge has the already safeguarded the interest of the present petitioner. After the additional evidence is led by the plaintiff -appellant and the other side also produces evidence, I if any, in rebuttal to the additional evidence produced by the plaintiff -respondent, the 1 learned District Judge shall decide the appeal in accordance with law. In this view of the matter, in my opinion, there is no scope for interfering in the present petition filed by the defendant.