IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.611 of 2000 with CMP No.424/07 Judgment reserved on: 22.7.2008 Date of decision: 28.7.2008 Smt. Lata Sehgal and another ……..Appellants Versus Bhagwan Singh and another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No. For the Appellants : Mr. H.K. Bhardwaj, Advocate. For the Respondents : Mr. Anand Sharma, Advocate, for respondent No.1. Kuldip Singh, Judge. The defendant No.2 Naresh Kumar had filed this appeal against judgment dated 21.9.2000 passed by learned District Judge, Chamba in Civil Misc. Appeal No.17/2000 confirming order dated 29.12.1999 passed by learned Senior Sub Judge, Chamba in case file No.89/95. 2. The facts in brief are that learned Senior Sub Judge, Chamba partly decreed the suit and passed preliminary decree for partition in Civil Suit No.68/1993/1989, titled Bhagwan Singh vs. Nand Kishore and Naresh Kumar on 2.6.1993. Bhagwan Singh plaintiff filed Civil Appeal No.11 of 1993 against the judgment, decree Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… dated 2.6.1993, which was allowed by learned District Judge on 11.1.1994, against judgment, decree dated 11.1.1994, Nand Kishore defendant No.1 filed Regular Second Appeal No.114 of 1994, which was dismissed by this Court on 19.12.1994. 3. The plaintiff Bhagwan Singh filed an application dated 27.6.1995 being CMA 89/95 under Order XX Rule 18(2) CPC for passing a final decree regarding land comprised in khata khatauni No.112/132 and 113/133. The reply dated 18.1.1996 was filed on behalf of defendants to the application, in which they had submitted that they were ready and willing for partition after taking into consideration respective possessions of the parties. On 22.2.1996 with the consent of learned counsel for the parties, application of Bhagwan Singh plaintiff was allowed and Ram Sawrup, Tehsildar was appointed as Local Commissioner to prepare the mode of partition, with a direction to submit his report. Local Commissioner submitted his report Ex.CW-1/A dated 1.5.1997. Bhagwan Singh plaintiff filed an application dated 2.6.1997 and submitted that the decree passed by learned District Judge not only covered khata khatauni No.112/132 but also khata No.736, 737 and 738, which property due to inadvertence was omitted in the application seeking final decree and therefore, Tehsildar, Chamba could not make partition of the said property. In the application prayer was made to direct Tehsildar, Chamba for carrying out partition of land comprised in khata No.736,737 and 738 also in terms of preliminary decree passed by the learned District Judge, Chamba. Naresh Kumar filed reply dated 15.7.1997 and had submitted that the learned District Judge has …3… passed the decree in favour of plaintiff in respect of khata khatauni No112/132 only and no other property was included. The learned Senior Sub Judge allowed the application of Bhagwan Singh on 10.9.1998. The order dated 10.9.1998 was assailed by way of C.R. No.330 of 1998. On 8.1.1999 the learned Senior Sub Judge appointed Tehsildar, Chamba again as Local Commissioner, in order to prepare the mode of partition of the decretal property in accordance with the shares of the parties as decided in the preliminary decree. The Local Commissioner submitted his report Ex.CW-1/B dated 6.4.1999. Naresh Kumar filed objections dated 13.4.1999 to the report of Local Commissioner. The objections to the report of the Local Commissioner filed by Naresh Kumar were contested by Bhagwan Singh by way of reply dated 1.5.1999. The issues were framed on 11.6.1999. The objections were dismissed by learned Senior Sub Judge on 29.12.1999 and the report of the Local Commissioner was confirmed and the final decree was passed in accordance with the report of Local Commissioner Ex.CW-1/A and Ex.CW-1/B, which were ordered to be made part of final decree. The decision dated 29.12.1999 was assailed by Naresh Kumar in Civil Misc. Appeal No.17/2000 before learned District Judge, Chamba which was dismissed on 21.9.2000, hence the second appeal in this Court which has been admitted on the following substantial questions of law:- 1. Whether the second partition is permissible under the law when each party is recorded separate owner in the Record of Rights? …4… 2. Whether the presumption of truth is attached to the continuous long standing entries in the jamabandies which are more than 30 years old? 3. Whether there was any Hindu Undivided Family existing before filing of the suit by the plaintiff/respondent No.1? 4. Whether Ext. DW-5/A Sale Deed by the plaintiff/Respondent No.1 in favour of Shri Mukesh Kumar i.e. DW-4 dated 20.9.1991 and Ext.DW-9/A copy of Mutation Number 538 dated 15.7.1953 show that the suit properties were divided during the life time of Shri Devi Chand father of the parties? 5. Whether the report of the Local Commissioner is in accordance with the documentary evidence as well as Record of Rights? Naresh Kumar appellant died during the pendency of the appeal and his legal representatives have been brought on record. The appellants have filed application being CMP No.424 of 2007, with a prayer that the documents mentioned in the application be taken on record, which has been opposed by other side. 4. I have heard Mr. H.K. Bhardwaj, learned counsel appearing on behalf of legal representatives of Naresh Kumar appellant and Mr. Anand Sharma, learned counsel for respondent No.1 and gone though the records. Mr. H.K. Bhardwaj, has submitted that the property under partition was already partitioned during the life time of Devi Chand father of the parties and therefore, the property cannot be partitioned again. The report of the Local Commissioner is not in accordance with documentary evidence as well as record of …5… rights. He has submitted that parties are recorded in separate possession in the record of rights, therefore, there is no question of second partition. He has submitted that jamabandies spreading over more than 30 years proves that the property was already partitioned. He has submitted for acceptance of appeal. Mr. H.K. Bhardwaj has submitted that in the facts and circumstances of the case CMP No.424 of 2007 may be allowed. Per contra Mr. Anand Sharma, learned counsel for respondent No.1 has submitted that no substantial question of law emerges from the material on record. The Court at the time of final decree can not go behind the preliminary decree which in the present case has attained finality. He has submitted that appellants are dragging the case with a view to harass the respondent No.1 and to deprive him the fruits of litigation. He has supported the impugned judgment and prayed for dismissal of the appeal. Mr. Anand Sharma has opposed the application CMP No.424 of 2007. 5. I take up CMP No.424 of 2007 first. In this application, the prayer has been made that the documents mentioned in the application may be taken on record. This application has been filed under 41 Rule 27 read with Section 151 CPC. The additional evidence in appeal can be allowed under Order 41 Rule 27, if the following conditions are satisfied:- “(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the …6… exercise of due diligence such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court 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 perusal of the application would show that there is no averment in the application with respect to conditions mentioned in rule 27 of Order 41 (a)(aa). The documents mentioned in the application, in the facts and circumstances of the case are not required by this Court under Order 41 rule 27 (1)(b). Moreover, in the application there is no prayer for permission to lead additional evidence. The prayer is only to the effect that documents mentioned in the application may be ordered to be taken on record. The documents cannot be read in evidence unless taken on record by way of additional evidence. Hence, application rejected. Substantial Questions of law 1 to 5 6. The substantial questions of law 1 to 5 in view of the controversy involved in the appeal can be disposed of collectively. It is not in dispute that learned District Judge passed the preliminary decree dated 11.1.1994 which has attained finality. Bhagwan Singh plaintiff filed an application dated 27.6.1995 for preparing the final decree. On 22.2.1996 with the consent of learned counsel for the parties, application of Bhagwan Singh plaintiff was allowed and Ram Sawrup, Tehsildar was appointed as Local Commissioner. The Local Commissioner submitted his report dated 1.5.1997 Ex.CW-1/A, …7… which was not assailed by any party inasmuch as no objections were filed against report Ex.CW-1/A. Bhagwan Singh filed another application that due to inadvertence while praying for final decree, some property was left and therefore, Tehsildar, Chamba could not partition that property. Bhagwan Singh made prayer for inclusion of that property in the final decree which was left inadvertently. The learned Senior Sub Judge allowed this application on 10.9.1998 to the following effect:- “Thus, it is apparent from the preliminary decree passed by the Hon’ble District Judge that the property comprised in Khata Khatauni no.112/132 etc. as detailed in the plaint was ordered to be partitioned. The property detailed in the plaint is the property comprising Khatauni no.112/132, Khasra nos.2164, 2165, 2167, 2166, measuring 29 Sq. yards 1 Sq. foot, Khatauni no.736, Khasra nos.1388 and 1389 measuring 29 Sq. yards 1 Sq. foot, Khatauni no.737, Khasra nos.1389 and 1385 measuring 29 Sq. yards 1 Sq. foot and khatauni no.738, Khasra no.1381 and 1382 comprising Khewat no.536, situated at Chowgan Bazar, Chamba town. So, it is manifest from the decree as well as the plaint that the property comprising Khewat no.536, Khatauni nos.736, 737 and 738 was also ordered to be partitioned by the Hon’ble District Judge, Chamba. But, due to inadvertent mistake, the decree holder/applicant omitted to detail this property in the application. Hence, the application moved by the applicant- plaintiff is allowed. This order be placed with the main case file”. …8… 7. It is clear from the order dated 10.9.1998 that not only khata Khatauni No.112/132 but khewat No. 536, khatauni Nos.736, 737, 738 were also part of the preliminary decree passed by learned District Judge, The order dated 10.9.1998 was assailed by way of C.R. No.330 of 1998 which was dismissed on 10.11.1998 by this Court. In this way, the order dated 10.9.1998 passed by learned Senior Sub Judge had attained finality. The learned Senior Sub Judge on 8.1.1999 again appointed Tehsildar, Chamba to prepare the mode of partition of the decretal property in accordance with the shares of the parties as decided in the preliminary decree. The Local Commissioner in pursuance of the order of the learned Senior Sub Judge submitted his report Ex.CW-1/B dated 6.4.1999. In the report Ex.CW-1/B the Local Commissioner has specifically stated that the parties have shown their agreement for the partition proposal as per their statements Ex.CW-1/C recorded separately. In view of agreement of the parties with respect to partition proposal shown in Ex.CW-1/B, nothing is left in the objections raised by the appellant Naresh Kumar and after him his legal representatives. As noticed above no objections were filed against report dated 1.5.1997 Ex.CW- 1/A. The perusal of objections dated 13.4.1999 filed by Naresh Kumar would show that the report Ex.CW-1/B was objected by him mainly on the grounds of demarcation and allotment of shares to the parties. In the report Ex.CW-1/B, it has been stated that parties have shown their agreement for the partition as per their statements. In fact the reference of agreement of the parties given in the report Ex.CW-1/B was never disputed. This being the position now in the …9… second appeal, the appellants can not be permitted to question the reports Ex.CW-1/A and Ex.CW-1/B even on the points of demarcation and allotment of shares, which otherwise have not been shown to be wrong. 8. The objections filed by Naresh Kumar to the report Ex.CW-1/B further reveals that in those objections Naresh Kumar never took the stand that the property was already partitioned and second partition of the property is not permissible. In fact the substantial questions of law referred above do not emerge from the objections filed by Naresh Kumar to the report Ex.CW-1/B. In second appeal the preliminary decree which has attained finality can not be questioned. The learned lower appellate Court has rightly appreciated the material on record. No case for interference has been made out, the substantial questions of law 1 to 5 are decided against the appellant. 9. No other point was urged. 10. The result of the above discussion, appeal fails and accordingly dismissed with costs quantified Rs.2,000/-. ( Kuldip Singh ) Judge July 28, 2007 (sks)