GUJABA BAIRAGI POWAR Vs. RAGHO ZITOO POWAR

JUDGEMENT

(1.) THE plaintiff's case is that he was until recently a co-proprietor in the village of Daudipar, that while he was a proprietor he leased two sir fields pertaining to his share to the defendant Ragho for the year 1934-35, that after the lease he has sold his proprietary share to Brijlal, and that now he is therefore the occupancy tenant of that sir land and is entitled to possession. In his written statement, dated 28th November 1935, the defendant contended that he had been granted a permanent lease of these fields by the plaintiff for a consideration of Rs. 100 about 20 years before and had been in possession ever since. He also alleged that if any sale deed had been executed in favour of Brijlal it was a sham and bogus transaction brought about to enable the plaintiff to recover possession of these fields. The trial Court decreed the plaintiff's claim. The lower Appellate Court held that the sale to Brijlal was a bogus transaction, but remanded the case mainly in order to enable the defendant to prove a written and unregistered patta, dated 22nd June 1924 showing that the fields in suit had been permanently leased to him. Against that decision the plaintiff has appealed.

(2.) THE defendant filed an affidavit stating that this patta was untraceable while the case was proceeding in the trial Court and that only recently it has come into possession. He has not explained how he came into possession of it and it is quite impossible to accept this explanation. There can be no doubt that he did not produce it in the lower Court because he thought it would be inadmissible in evidence as it was unregistered. Order 41, Rule 27, Civil P.C., provides that an Appellate Court may allow additional evidence to be produced if it requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The lower Appellate Court thought that the patta should be produced in order to do justice to the parties. Its view seems to have been that it would only be fair to allow the defendant to prove this document in order to strengthen his case. Additional evidence cannot be allowed on such a ground. In Parsotim Thakur v. Lal Mohar Thakur (1931) 18 AIR PC 143 their Lordships of the Privy Council remarked at p. 668: The provisions of Section 107, Civil P.C., as elucidated by Order 41, Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal...It is only where the Appellate Court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is, not whenever before the appeal is heard, a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.'

(3.) AS regards the alleged sale to Brijlal, the plaintiff has given evidence to show that possession was transferred and consideration paid. The alleged consideration consisted of Rs. 600, which was due on a mortgage and was paid to the mortgagee Dhekal (P.W. 6), and of Rs. 400 said to have been due to Brijlal himself. The only money that passed therefore was the money that was paid to the mortgagee who had to be paid whether there was a transfer or not. The evidence that the plaintiff owed Rs. 400 to Brijlal is scanty and dubious. As regards the alleged transfer of possession the evidence adduced by the plaintiff is slight and the plaintiff admittedly has been collecting the rents since. There is no allegation that there has been mutation or even an application for mutation. In these circumstances the lower Appellate Court was entitled to hold that there had been no genuine transaction but that it was merely a colourable transaction. That is a finding of fact that must be accepted in second appeal. It follows that, if there has been no transfer to Brijlal, the plaintiff is still the proprietor of his share and is not an occupancy tenant of the sir land. His suit must therefore fail unless an amendment of the plaint is allowed. The lower Court remanded the case partly because it appears to have thought that an amendment should be allowed. The plaintiff however never applied to the lower Appellate Court for leave to amend and there was nothing to suggest that he wanted leave to amend until the completion of the hearing of this appeal. The amendment would introduce an entirely different and contradictory case, and I do not think that there is any ground for allowing it at this stage. It therefore follows that the plaintiff's claim must fail. The suit will therefore stand dismissed with costs throughout. Counsel's fee Rs. 25.