RSA No.4024 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH. RSA No.4024 of 2009 Date of decision:8.1.2010 Smt.Krishana ...Appellant Versus Magha Ram and another ...Respondents. CORAM: Hon'ble Mr.Justice Rakesh Kumar Garg. -- Present: Mr.R.N.Lohan,Advocate, for the appellant. -- Rakesh Kumar Garg,J. This is plaintiff's Regular Second Appeal challenging the judgment and decrees of the Courts below whereby suit for declaration and permanent injunction has been dismissed with costs. As per the averments made in the plaint, the previous owners of the suit land duly executed a lease deed dated 27.4.1993 in favour of defendant-respondent No.1 which was registered in the office of Sub Registrar Kharkhoda. It has been further averred that plaintiff purchased the suit land vide sale deed dated 27.4.1993, for a consideration of Rs.1,65,000/- and got the aforesaid lease deed dated 27.4.1993 cancelled by mutual agreement of the parties to the suit, and accordingly, defendant- respondent No.1 handed over the original lease deed to the plaintiff- appellant in token of cancellation of the said lease deed duly signed by him in the presence of witnesses. It is further the case of the appellant that respondent No.1 also executed a receipt in token of acceptance of the cancellation of the lease deed in favour of the plaintiff and delivered the possession of the suit land to the appellant, and since then the plaintiff- appellant is in cultivating possession of the suit land. It is further alleged in RSA No.4024 of 2009 2 the plaint that respondent No.1 also agreed to get mutation No.2765 cancelled which was entered in favour of defendant-respondent No. 2 on 29.4.1993. However, respondent No.1 executed a lease deed dated 9.6.1997 in favour of respondent No.2 and the same is claimed to be null and void, and was not binding on the rights of the appellant. It has been further averred that the defendants colluded with each other and under the garb of the fictitious lease deed threatened the plaintiff-appellant to take forcible possession of the suit land. Plaintiff-appellant requested the respondents not to do so but in vain. Hence the plaintiff-appellant filed the present suit seeking a decree of declaration to the effect that the lease deed dated 27.4.1993, was not binding upon her rights as she was in cultivating possession of the suit land and that mutation No.2765 be cancelled, and further praying a decree of permanent injunction restraining the respondents permanently from interfering in the peaceful cultivating possession of the appellant over the suit land. Upon notice, respondents appeared and filed written statement taking various preliminary objections. On merits, it was stated that it was incorrect to say that the registered lease deed dated 27.4.1993 was cancelled at any time and possession of the suit land was handed over to the plaintiff- appellant and that respondent No.1 had appended any writings on the back of the original lease deed. It was also denied that the appellant was in cultivating possession of the suit land. It was asserted that respondent No.1 never handed over possession of the suit land to the appellant and that the appellant forged and fabricated documents in this regard which were never executed by respondent No.1. It was further asserted that mutation No.2765 was sanctioned in his favour in accordance with law and he never agreed to RSA No.4024 of 2009 3 get the same cancelled. It was further submitted by the respondents that the suit land was leased out to defendant-respondent No.1 for a period of 60 years and actual physical possession was also delivered to him and he further leased out the suit land to defendant-respondent No.2 vide a registered lease deed dated 9.6.1997 for a period of 48 years and handed over the actual physical possession of the suit land to defendant-respondent No.2. Rest of the averments made in the plaint were denied and dismissal of the suit was prayed for. On the pleadings o the parties, the following issues were framed by the trial Court on 27.9.2001:- 1. Whether the lease deed dated 27.4.1993 stands cancelled by mutual agreement of the parties to the suit ? OPP 2. Whether the defendant no.1 handed over the possession o the suit land to the plaintiff as alleged in para no.3 of the plaint? OPP 3. Whether the suit of the plaintiff is legally not maintainable in the present form ?OPD 4. Whether the plaintif has no cause of action to file the present suit ? OPD 5. Whether the suit has been correctly valued for the purposes of Court fee and jurisdiction ? OPD 6. Whether the plaintiff has no locus standi to file the present suit ? OPD 7. Relief. It is pertinent to mention that defendant-respondents were ordered to be proceeded against ex parte vide order dated 4.3.2005,before the trial Court. To prove her case the plaintiff-appellant herself stepped into the witness box as PW1 and tendered her affidavit Exhibit PW1/A in her ex parte evidence. After tendering the documents Exhibits P1 to P4 and mark- RSA No.4024 of 2009 4 A to Mark-C, the appellant closed her evidence vide a separate statement made by her counsel. It was argued before the trial Court that the appellant was in actual cultivating possession over the suit land and as such from the documents on record, and the statement of PW1 the case of the appellant was proved. However, after appreciating the evidence on record, the trial court held that the appellant has failed to prove that she had purchased the suit land vide sale deed dated 27.4.1993, and there was no evidence to prove that the lease deed dated 27.4.1993 in favour of defendant No.1 was cancelled by mutual agreement of the parties. On the basis of the aforesaid findings, the suit of the plaintiff-appellant was dismissed with costs. Aggrieved by the judgment and decree of the trial Court, the appellant filed an appeal before the first Appellate Court. It is also relevant to mention that along with the appeal before the first Appellate Court, the appellant also filed an application under Order XLI Rule 27 of the Code of Civil Procedure, for permission to lead additional evidence to prove the documents mark-A to mark-C, which were on the record of the case. The aforesaid application was dismissed by the lower Appellate Court on 24.8.2009, holding that despite the said documents being in the knowledge of the appellant, she did not prove those documents in accordance with law before the trial Court and now at the appellate stage the appellant was trying to fill in the lacuna in her case by seeking permission to lead additional evidence which could not be permitted. The lower Appellate Court vide judgment and decree dated 26.8.2009, dismissed the appeal. The relevant part of the judgment of the lower Appellate Court reads as follows:- “ Firstly, I will take up the first point i.e., as contended by RSA No.4024 of 2009 5 the appellant/plaintiff regarding lease deed dated 27.4.1993 having been cancelled by way of mutual consent between the parties, but the said contention of the appellant/plaintiff does not stand proved on the file in much as at the first instance the appellant/plaintiff has failed to even prove sale deed dated 27.4.1993 vide which she has alleged to have purchased the suit land and has only relied upon mutation No.2764 which has been placed on the file as Ex.P-3 to prove she having purchased the suit land. That as far as the lease deed dated 27.4.1993 in favour of respondent/defendant No.1 having been cancelled by way of mutual agreement between the parties is concerned, the appellant/plaintiff has miserably failed to prove the same too, since the photocopy of the lease deed has been placed on the file as Mark-A and further receipt of Rs.20,000/- allegedly issued by respondent/defendant No.1 in favour of the appellant/plaintiff on 30.4.1996 having been placed on the file as Mark-C and the agreement to cancel the said lease deed having been placed on the file as Mark-B. That the said documents were required to be proved by the appellant/plaintiff, but the appellant/plaintiff failed to examine any witness to prove either sale deed dated 27.4.1993 in her favour or the cancellation of lease deed dated 27.4.1993 admittedly in favour of the respondent/defendant No.1, by way of proving agreement to cancel the same as well as the receipt of Rs.20,000/- allegedly issued by respondent/defendant No.1 in favour of the appellant/plaintiff. In view of my observations above, I am of the considered view that the appellant/plaintiff has miserably failed to prove she having ever purchased the suit land or lease deed dated 27.4.1993 having been cancelled by mutual agreement between the parties. Now moving on the second contention raised by the appellant/plaintiff regarding respondent/defendant No.1 having handed over the possession of the suit land to her, I am of the RSA No.4024 of 2009 6 considered view that the appellant/plaintiff has not brought forward any document in support of her contention regarding she being in possession of the suit land and even otherwise since she has failed to prove any sale deed dated 27.4.1993 having been executed in her favour or lease deed in favour of defendant/respondent No.1 dated 27.4.1993 having been cancelled, as such the appellant/plaintiff has in fact not been able to show as to on what basis she was alleging to be in possession of the suit land. That as far as the suit for permanent injunction not being maintainable in the present form as the appellant/plaintiff not being in possession of the suit land is concerned, although the onus to prove the issue regarding maintainability was on the defendants, but the defendants have been proceeded against ex- parte before the learned trial Court, as such the said issue having gone unagitated but the learned trial Court having proceeded to decide the same being a legal issue and the said question of maintainability having been agitated by the learned counsel for respondents/defendants before me, as such I proceed to give my opinion on the point of maintainability also and in my view since the appellant/plaintiff has failed to prove her cultivating possession over the suit land, as such the question of restraining the defendants from interfering in the same does not arise and hence, the present suit for permanent injunction was not maintainable”. Still not satified the appellant has approached this Court by way of this appeal. Learned counsel for the appellant has vehemently argued that the Courts below have erred at law while ignoring the contents of the affidavit submitted by the appellant in her evidence which was not assailed by the respondents in cross-examination. Hence the evidence placed on the record of the case by the appellant remained unrebutted, and therefore, the RSA No.4024 of 2009 7 appellant was entitled to decree as prayed. Learned counsel for the appellant further argued that sufficient opportunity was not given by the lower Appellate Court to the appellant to challenge the order dated 24.8.2009 whereby the application filed by her for leading additional evidence was rejected illegally. According to the learned counsel for the appellant, the documents sought to prove by way of additional evidence were already on the record of the case and the same were to be proved formally and, therefore, the aforesaid application should have been allowed by the lower Appellate Court. On the basis of the aforesaid arguments, learned counsel for the appellant has claimed that the following substantial questions of law arise in this appeal:- (i) Whether the statement of the appellant in the form of affidavit which has not been assailed in the cross examination is liable to be admitted and the suit is liable tobe allowed ? (ii) Whether the findings of the learned Courts below are contrary to evidence on the file ? (iii) Whether two suits filed by the appellant challenging the lease deed dated 27.4.1993 and 9.6.1997 are liable to be decided together ? (iv) Whether evidence produced by the appellant in other suit challenging the lease deed dated 9.6.1997 executed by defendant No.2 is liable to be considered in the present suit ? (v) Whether prejudice has been caused to the appellant by dismissing the application of the appellant for producing the additional evidence ? I have heard the learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. I have also perused the order dated 24.8.2009 passed by the lower Appellate Court RSA No.4024 of 2009 8 rejecting the application of the appellant seeking permission to lead additional evidence. The contention of the appellant regarding lease deed dated 27.4.1993 having been cancelled by way of mutual consent between the parties does not stand proved on the record, inasmuch as, no sale deed dated 27.4.1993 in favour of the appellant has been placed/proved on the record of the case. Neither any evidence has been brought on the record to prove the factum of cancellation of the lease deed dated 27.4.1993. The appellant has placed on record a photocopy of the lease deed as mark-A and a receipt of Rs.20,000/- allegedly issued by respondent No.1 in favour of appellant on 30.4.1996 as Mark 'C'. However, the said documents were required to be proved by the appellant but she has failed to examine any witness to prove these documents. Thus, there being no evidence on record to prove the contention of the appellant, no fault can be found with the findings recorded by the Courts below. Learned counsel for the appellant was also unable to find fault with the order dated 24.8.2009 passed by the lower Appellate Court rejecting her application for permission to lead additional evidence. In view of the aforesaid discussion, I find that no substantial question of law arises as pressed by the learned counsel for the appellant. No merit. Dismissed. (Rakesh Kumar Garg) Judge January 8, 2010 rk