R.S.A. No. 3062 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3062 of 2009 Date of Decision: 19.08.2009 Satish son of Hari Ram son of Jhandu Ram, resident of Balmiki Mohalla, Ramrai Gate, Jind. ... Appellant Versus Gian Chand son of Richpal son of Matu, resident of Harijan Mohalla, Bhiwani Road, Jind. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jasbir Singh Mor, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 29.01.09, rendered by the Court of Additional Civil Judge (Senior Division), Jind, vide which, it decreed the suit of the plaintiff, and the judgement and decree dated 24.04.09, rendered by the Court of District Judge, Jind, vide which, it dismissed, the appeal. 2. The plaintiff/respondent, claimed that, the house, in dispute, was owned by Richpal son of Matu Ram, his father (since deceased). By way of mutual family settlement, which took place, on 20.10.76, the house, in dispute, was given, to the plaintiff, by Richpal. Since then the plaintiff, became the owner, in exclusive possession of the said house. It was stated R.S.A. No. 3062 of 2009 2 that the house, shown in blue colour, on the western side of the house, in dispute, was owned by Jhandu Ram, who has also died. In separate family adjustment, said Jhandu Ram, had given the house, shown in blue colour, in the site plan, to his grand-son Hari Ram, who became the owner, in possession thereof. The area of both the houses, is almost equal. In addition to the house, in dispute, the plaintiff, also claimed that, he was in possession of another house in Harijan Mohalla, Bhiwani Road, Jind, which he had purchased, vide sale deed dated 10.10.80, bearing plot No. 64 (148 square yards). It was further stated that the plaintiff, was residing, in the said house with his family members. It was further stated that due to the previous litigation with the defendant, as also with Smt. Giano, he had locked the house, in dispute, about six months ago. Though, his household goods were lying, in the house, in dispute, yet he used to accommodate the guests therein. The plaintiff, and his family members, used to visit the disputed house once or twice a month, for casual look and care. In July, 2005, heavy rains occurred. The plaintiff and his wife visited the house, in dispute, on 10.10.05, to check, whether any leakage or seepage, had taken place, or not. They found that the defendant unauthorizedly, illegally and forcibly occupied the disputed house, by trespassing into the same, with active connivance and instigation of his father and brothers. He also put his luggage and household goods. He had also made changes therein. The northern side of the door with bricks, had been closed, and he had made an opening at site marked EF, shown in green colour, in the site plan. He had also constructed a toilet, in the corner of the disputed house. The defendant, was many a time asked, to vacate the unauthorized possession of the house, in dispute, and remove the construction, but to no avail. On the final refusal R.S.A. No. 3062 of 2009 3 of the defendant, to accede to the request of the plaintiff, left with no other alternative, a suit for possession, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was stated by him, that a registered Will dated 28.04.92, was executed by Smt. Rama Devi widow of Richpal, in his favour, and, as such, after her death, he became the absolute owner, in possession of the house, in dispute. It was further stated that Jhandu Ram and Richpal, were real brothers, being sons of Matu. Smt. Rama Devi, in the first instance, married Jhandu Ram, who had died, after some years of his marriage. Thereafter, she contracted a karewa marriage with Richpal, real brother of her husband Jhandu Ram son of Matu Ram. It was further stated that she was the grand-mother of the defendant/appellant, and was living with him, in the disputed house. It was further stated that the Will, was executed, in his favour, by Rama Devi, on account of love and affection. It was further stated that Hari Ram father of the defendant, was the owner, in possession of a portion, in the disputed house, shown in blue colour, in the site plan, and the doors therein, had been, in existence, since the life time of Smt. Rama Devi. It was denied that the plaintiff ever remained in possession of the house, in dispute. It was further denied that the defendant, ever took unauthorized possession of the house, in dispute, or raised construction therein. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether plaintiff is owner of the property in dispute and is entitled to possession of the same? OPP R.S.A. No. 3062 of 2009 4 (ii) Whether defendant is owner in possession over the property in dispute on account of registered Will dated 28.04.92 executed by Smt. Rama Devi, in his favour? OPP (iii) Whether suit is barred by limitation? OPD (iv) Whether plaintiff has no cause of action? OPD (v) Whether plaintiff has no locus standi to file the present suit? OPD (vi) Whether plaintiff is estopped from filing the present suit by his own acts and conduct? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendant/appellant, which was dismissed, by the Court of District Judge, Jind, vide judgement and decree dated 24.04.2009. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. Alongwith the appeal, an application under Order 41, Rule 27, read with Section 151 of the Code of Civil Procedure, for additional evidence to produce and prove annexures A1 to A4, registered Will, Municipal record, receipts etc., was also filed. 9. I have heard the Counsel for the appellant, and have gone through the record of the case, carefully. 9-A. The following substantial questions of law arise, in this appeal for determination of this Court:- (i) Whether the Courts below misread and misappreciated the R.S.A. No. 3062 of 2009 5 evidence, resulting into the recording of perverse finding that the property, in dispute, was given to the plaintiff/respondent by his father Richpal, in a family settlement, which took place on 20.10.76 and, thus, he became the owner thereof? (ii) Whether the first Appellate Court shut the material evidence of the defendant, in the shape of Will dated 28.04.92, by illegally dismissing the application under Order 41, Rule 27 of the Code of Civil Procedure for additional evidence? 10. The Counsel for the appellant, submitted that the Courts below, misread and misappreciated the evidence, and recorded perverse findings. He further submitted that the defendant, was the owner of the property, in dispute, on the basis of Will, executed in his favour by Rama Devi, and not in unauthorized possession thereof. He further submitted that the house in dispute did not fall to the share of the plaintiff in family settlement nor any such family settlement took place. He further submitted that the judgements and decrees, being illegal, were liable to be set aside. It was further submitted that inadvertently, the arguing Counsel for the appellant, before the trial Court, could not produce and prove the Will and other documents, sought to be produced and proved by way of additional evidence. It was further stated that when it came to the notice of the defendant, that the Counsel, engaged by him, was not properly pursuing his case, he immediately changed his Counsel, and engaged one Balwan Singh, Advocate. It was further submitted that, thereafter, an application under Order 41, Rule 27 of the Code of Civil Procedure, was filed, before the first Appellate Court, but the same, was declined. It was further submitted that the aforesaid documents, were essential, for the just decision of the appeal. R.S.A. No. 3062 of 2009 6 11. The application under Order 41, Rule 27 of the Code of Civil Procedure, moved by the appellant, deserves to be dismissed, for the reasons to be recorded, hereinafter. The Civil Suit, was filed, on 09.08.05, and the issues, were struck, on 07.08.06. In the written statement, a specific plea, was taken by the defendant, to the effect, that Rama Devi, had executed a Will dated 28.04.92, in his favour, on the basis whereof, he became the owner, in possession of the property, in dispute. It means that, this document, and the other documents, sought to be produced and proved, by way of additional evidence, was very much, in the knowledge of the appellant, but he did not produce, and get proved the same, at the relevant time. The grounds taken up by the appellant, in the application, under disposal, for non-production and proof of these documents, at the relevant time, do not appear to be justified. The Will, according to the appellant, was a material document, on the basis whereof, he claimed the ownership of the property, in question. If he slept over the matter throughout, then the Court, cannot show any indulgence to him. According to Order 41, Rule 27 of the Code of Civil Procedure, the party, seeking to produce additional evidence, if establishes that, notwithstanding the exercise of due diligence, such evidence, was not in his 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 the Appellate Court, required any document to be produced or any witness to be examined, to enable it, to pronounce judgement, or for any other substantial cause, the Appellate Court, may allow such evidence or document to be produced, or witness to be examined. The case of the appellant, does not fall within the fore-corners of this provision. As stated above, the documents, aforesaid, were very much, R.S.A. No. 3062 of 2009 7 in the knowledge of the defendant, as he took up a specific stand, in the written statement, with regard to the same. Had he exercised due diligence, he would have certainly been able to produce and get proved the same. Even otherwise, this evidence was not essential for the just decision of the case, as the property, in dispute, fell to the share of the plaintiff, in a family settlement, and he became owner thereof, much before the alleged execution of the Will, as would be discussed in the succeeding paragraph. The other evidence, on record, could be said to be sufficient, for the just decision of the case. The first Appellate Court, alson did not consider such evidence necessary, for the pronouncement of judgement. In my view also, no ground, is made out, for allowing the application for additional evidence. Support to my view, can be had from Mahavir Singh and others Vs. Naresh Chandra and another, 2001(1), PLJ 52 (SC), N. Kamalam (dead) and another Vs. Ayyasamy and another, 2001(2), PLJ 377 (SC), Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh, AIR 1968 (SC), 933, and Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2005(3), RCR (Civil), 530 (SC). Accordingly, the application, is dismissed. 12. The plaintiff, claimed that, the house, in dispute, fell to his share, in the family settlement, which took place on 20.10.76. The Courts below, on the basis of the ocular evidence of Balmukand, PW2, Gian Chand, plaintiff, PW4, Jati Ram, PW3, and the documentary evidence produced, on record, rightly came to the conclusion, that Richpal, who was the owner of the property, in dispute, in the family settlement dated 20.10.76, gave the same, to the plaintiff, who became the owner in possession thereof. The Courts below, were also right, in coming to the R.S.A. No. 3062 of 2009 8 conclusion, that Rama Devi, had no right, title, or interest, in the house, in dispute. Since Rama Devi, had no right, title, or interest, in the house, after 20.10.76, she was not competent to execute the Will, set up by the defendant, in his favour. Even the stand taken up by the defendant, in the written statement, that he became the owner in possession of the house, in question, on the basis of the Will, was not established, as he failed to produce and prove the same. The Courts below, were also right, in holding that the defendant forcibly took possession of the house, in dispute, and the plaintiff, being the owner thereof, was entitled to the decree for possession. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and, warrant no interference. The submission of the Counsel for the appellant, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial questions of law, depicted hereinabove, are answered against the appellant. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 19.08.2009 (SHAM SUNDER) Amodh JUDGE