HARIHAR PRASAD Vs. RAJ KISHORE LAL

JUDGEMENT

(1.) This application has been filed by the defendant and it is directed against an order of the Subordinate Judge of Patna, dated 10th of May, 1962, passed in an appeal pending before him and numbered as Title Appeal No. 190/60 and 5/61. By the order complained against, the learned Judge has accorded permission to the plaintiff appellant before him, to adduce additional evidence in the appeal. The facts material for. the purpose of this application are as follows. The plaintiff had filed a title suit against the defendant, for evicting him, from the disputed property claiming to be a subsequent purchaser, who required the property for his own use and occupation. The plaintiff had also alleged that the tenant defendant had made defaults in payment of some rents due. The written statements of the defendant, as they now stand, contain, inter alia, a defence to the effect that the plaintiff was not the sixteen annas owner of the property in dispute. It was alleged that there were two more co-owners of the property, named Ahmad All Khan and Saadat Ali Khan, whose interests had not been purchased by the plaintiff. According to the defendant the suit for ejectment was liable to fail on account of this reason, amongst others. The issue under which this point was ultimately considered by the trial judge was issue No. 3, which read as, follows:-- "Has the plaintiff got any title over the premises in suit?" Two points were agitated by the parties before the learned trial judge under this issue, one of them being the outstanding interest, if any, of Ahmad Ali Khan and Saadat AH Khan. The learned trial Judge came to the conclusion upon the materials on record, that, the plaintiff was not the purchaser of the sixteen annas interest of the landlords. Ultimately, the plaintiffs suit failed before the trial Court. An appeal was carried by the plaintiff to the Court of appeal below. During the pendency of the appeal, the plaintiff filed two petitions for taking additional evidence in appeal. The documents which the plaintiff attempted to bring on the record were described as two deeds of relinquishment, dated the 15th of May, 1961, and the 4th of October, 1961. These two documents purport to be deeds of release executed by Abrar Ali (P. W. I) by virtue of power of attorney executed by Saadat Ali Khan and the son of Ahmad AH Khan. The document dated the 15th of May, 1961, purports to be on behalf of the son of Ahmad Ali Khan and the document dated the 4th of October, 1961, purports to be a document on behalf of Saadat Ali Khan. The plaintiff's contention before the appellate Court was to the effect that as these two documents had come into existence after the decision of the trial Court, they should be taken in evidence at the appellate stage, on the question of plaintiff's title. The learned Subordinate Judge has accepted the plaintiff's contention and has substantially held, that as the two documents offered by the plaintiff were not in existence at the time of the hearing of the suit and were thus not available to the plaintiff before the decision of the suit itself, the provision, of Order 41 Rule 27 of the Code of Civil Procedure was attracted and the plaintiff ought to be accorded permission to bring these two documents on the record. The learned Judge was also of the view that upon the finding of the trial Court under issue No. 3 to the effect that the plaintiff had not acquired sixteen annas title in the house in dispute, the two documents in question were material pieces of evidence in this case regarding the plaintiff's title. The learned Judge has concluded by saying that--

(2.) For the reasons given below, I am of the opinion that the learned Subordinate Judge was in error in granting permission to the plaintiff to adduce additional evidence at the appellate stage. The question for which the plaintiff has attempted to bring on the record the two documents mentioned above, was a question which was in issue in the trial Court and the parties had sufficient notice of the fact that the plaintiff's title to the disputed property was the subject-matter of investigation. It must be taken that the plaintiff had notice of the fact that upon the defence raised by the defendant, he had to prove his sixteen annas title to the disputed property. Evidence was adduced by both the parties upon the relevant issue framed by the learned Munsif and it must be taken that the plaintiff had full knowledge of the question that arose in the trial Court. No attempt whatsoever was made by the plaintiff to adduce any evidence to show what the two deeds of relinquishment purport to show at present. It is obvious that the plaintiff had taken chance of a decision in his favour upon the question of his title and that having failed in his attempt, he is now trying to fill up the lacuna, if any, in the evidence adduced by him upon his title. The provision of Order 41 Rule 27 of the Code of Civil Procedure, which was in view of the learned Subordinate Judge, is Rule 27 (1) (b), incorporated by this Court in order 41 of the Code of Civil Procedure. The relevant clause reads thus:

(3.) I must, however, make it clear that none of the observations made by me should be taken as a conclusion on the evidence which is already on the record. Even without these documents in question, the plaintiff may succeed in proving his sixteen annas interest in the disputed property or he may fail to do so. The decision on that question will be entirely within the province of the Court of appeal below bearing the appeal on the evidence which is already on the record.