RAMA Vs. BHERA

JUDGEMENT

(1.) This second appeal has been filed by the defendants against whom the respondents plaintiffs suit for recovery of possession over the land in dispute was decreed by the trial court, the first appellate court having confirmed the same in appeal.

(2.) We have heard the learned counsel appearing for the parties and have gone through the record as well The main contention raised on behalf of the appellants before us is that some documentary evidence which could not be produced in the trial court was sought to be adduced before the first appellate court but that it was rejected improperly. To appreciate this argument the facts of the case may be referred to in brief. The plaintiffs based their claim on the ground that they had been in possession of the land in dispute as khatedar tenants till Ashadh Svt. 2007 when they were dispossessed wrongfully by the defendants Nos. 1 to 5. These defendants contested the claim on the plea that the plaintiffs were in possession in Svt. 2005, that they remained in possession for one year and that in Svt. 2006, they were admitted to possession of the land which has been continuing with them since then. The plaintiffs produced settlement parchas and some oral evidence. The defendants produced three witnesses one of them Prema clearly admitted in cross -examination that the defendants had been cultivating the land since Svt. 2007. In other words, this evidence lends ample support to the version put forth by the plaintiffs. After examining the evidence, the trial court came to the conclusion that the plaintiffs were in possession of the land and were dispossessed by the defendants as alleged in the plaint. In the written statement which was produced by the counsel for the defendants, no mention was made of the documentary evidence which was sought to be produced before the appellate court. Even the fact which is to be proved by this documentary evidence was not mentioned in the written statement. The reason alleged for non -production of the documentary evidence before the trial court is that the counsel engaged by the defendants who had these documents in his possession was taken seriously ill and that his illness continued for a long time which prevented the production of the documents in the trial court. It has been admitted by the defendants that the written statements were presented by the same counsel. No explanation has been offered as to why the documents could not be produced along with the written statement or why any reference was not made of the events to which these documents relate. We have gone through these documents ourselves. Almost all of them are of a. nature which can admit of their fabrication at any time. There are no such circumstances as may raise any presumption of genuineness in their favour. These documents relate to dealings between ijaredars and the defendants and the plaintiffs being no parties to them cannot be held bound by them. Much stress has been placed upon two compromise deeds alleged to have been executed on 10.12.51 one by Sonia and the other by Joita. In one compromise deed the thumb impression of Sonia does not at all appear Both of them appear to have been in the possession of the appellants. If they relate to compromise field in a criminal court the best course for the appellants would have been to obtain certified copies from the records of the court and that would have been of some avail. These documents : are. therefore of no value.

(3.) The learned counsel for the appellants has referred to A.I.R. 1947 Patna 584 wherein it was observed that an appellate court can admit additional evidence not only when it requires it but even when produced by party to appeal when on such evidence review can be obtained There are however a number of authorities that lay down the law differently. In A.I.R. 1948 P.C. 36, their Lordship observed that the power of an appellate court to admit further evidence under Order 41 Rule 27(1)(b) is confined to cases in which the court requires any documentary evidence to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The power only arises where the court requires the further evidence for one of the two causes specified. An order under this provision cannot be made to fish out evidence to prove his case and make up the lacuna which then existed, in A.I.R. 1946 Oudh 163 it was observed "where a party has through his own negligence kept himself ignorant of a document and wants to produce it in the appellate court, he cannot claim the benefit of O. 41 R, 27. Justice Bapna in Rup Lal vs. Shankar (1951 R.L.W. 494) observed that". It is not the requirement of a litigant which is material in considering whether or not additional evidence will be allowed to be produced, the requirement is to be of the court for any substantial cause." Applying this test to the present case, we are clearly of the opinion that the appellants wanted to produce before the appellate court some evidence which through their own negligence they had failed to produce in the trial court and the appellate court was, therefore, justified in disallowing the same. As regards the merits of the case, we have gone carefully through the entire evidence. It is clear therefrom that the plaintiffs were in possession of the land till they were dispossessed as alleged in the plaint. The concurrent decrees of the lower -courts are perfectly correct and call for no interference. The appeal is, hereby rejected.