KRISHAN SINGH ALIAS KISHAN SINGH Vs. BALRAM SINGH

JUDGEMENT

(1.) THIS appeal has been directed against the judgment, decree dated 30.9.1999 passed by the learned District Judge, Una in Civil Appeal No. 113/1993 confirming the judgment, decree dated 12.4.1993 passed by the learned Sub Judge 1st Class, Court No. II, Amb, in Civil Suit No. 230/1987 RBT No. 357/1989.

(2.) THE appellant was defendant and Kashmir Singh father of respondent was plaintiff in the suit for permanent prohibitory injunction. The facts, in brief, are that Kashmir Singh filed a suit for permanent prohibitory injunction against the appellant from interfering, encroaching, taking forcible possession, selling, plucking mangoes, cutting and removing mango trees from the land comprised in Khasra No. 2868 measuring 1 kanal 17 marlas, Village Oel, Tehsil Amb, District Una, on the basis of title and possession. It was pleaded that the appellant has no right, title and interest in the suit land.

(3.) I have heard Mr. Sanjeev Kuthiala, learned counsel for the appellant and Mr. Ajay Sharma, learned counsel for the respondent and have gone through the records. Mr Kuthiala has submitted that in the learned lower Appellate Court the appellant had filed an application dated 31.1.1994 under Order 41 Rule 27 C.P.C. for additional evidence. The appellant had also filed another application dated 13.2.1998 under Order 41 Rule 27 C.P.C. for additional evidence in the lower Appellate Court. The learned lower Appellate Court has considered the earlier application for additional evidence and has not at all considered the second application for additional evidence and, therefore, committed an error of law in dismissing the appeal without considering second application for additional evidence. The learned counsel for the appellant has also submitted that C.M.P. No. 940 of 2003 filed by the appellant in the present appeal for additional evidence is based upon facts subsequent to the decision dated 30.9.1999. Therefore, he has submitted that application under Order 41 Rule 27 C.P.C. filed in the present appeal may be allowed. The learned counsel for the appellant has additionally submitted that the question involved in the present case is whether the mango tree is situate on khasra No. 2868 or on khasra No. 2869. It was for the plaintiff to prove the location of mango tree. The Courts below have erred in relying demarcation report Ex.P-4 and decreeing the suit which report according to learned counsel for the appellant has not been proved nor the said report can be taken into consideration as the demarcation on the basis of which the report Ex.P-4 was prepared was not carried out in accordance with rules and instructions. In absence of valid and legal demarcation report, there is no worth believing legal evidence on record to prove that mango tree, in question, is located on khasra No. 2868. The learned counsel for the appellant has prayed for acceptance of the appeal and remand of the case. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that two Courts below have concurrently held that mango tree is situate on Khasra No. 2868 which is a finding of fact and in the second appeal, re-appreciation of the evidence is not permissible. He has also submitted that the appellant has not made out a case in any application for additional evidence. The second application before learned lower Appellate Court was not pressed.