IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.M.P.M.O No. 289 of 2010 and C.M.P..O. No. 290 of 2010. Reserved on: 13.8.2010 Date of decision: 19.8.2010 _______________________________________________________ 1. C.M.P.M.O. No. 289 of 2010. Shakuntla Devi and others …Petitioners. Versus Gian Singh …Respondent. 2. C.M.P.M.O. No. 290 of 2010. Shakuntla Devi and others …Petitioners. Versus Gian Singh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioners : Mr. Tarlok Chauhan, Advocate. For the Respondent : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. Kuldip Singh, Judge This judgment shall dispose of CMPMO No. 289 of 2010 and CMPMO No. 290 of 2010 as common question of law and facts are involved in both the petitions, which were earlier filed as Civil Revisions, but converted into petitions under Article 227 of the Constitution of India. 2. In CMPMO No. 289 of 2010, as per copy of plaint placed on record in Civil Suit No. 390 of 2001, the respondent has filed a suit for ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 possession of land, more specifically described in the plaint, that he is entitled to possession of his 1/5th share of suit land, alienations made by late Kishan Singh, last male holder, in favour of petitioners No. 1 and 2 herein are null and void as the suit land is ancestral, he was not competent to alienate the suit land as per agriculture custom and mutation Nos. 647, 230 and 233 sanctioned in favour of petitioners No. 1 and 2 are null and void. 3. In CMPMO No. 290/2010, as per copy of plaint placed on record in Civil Suit No. 392 of 2001, the respondent has filed a suit for possession of land, more specifically described in the plaint, that he is entitled to possession of his 1/5th share of suit land, alienations made by late Kishan Singh, last male holder, in favour of petitioners No. 1 and 2 herein are null and void as the suit land is ancestral, he was not competent to alienate the suit land as per agriculture custom and mutation Nos. 231 and 232 sanctioned in favour of petitioners No. 1 and 2 are null and void. 4. In CMPMO No. 289 of 2010, the suit was contested by taking several preliminary objections. The alienations made by late Kishan Singh were defended. It was pleaded that the suit property was not ancestral in the hands of transferor. The pleas of legal necessity and legality of mutations were pleaded. It is pleaded that agriculture custom stands abrogated. In CMPMO No. 290 of 2010, similar pleas were taken and alienations made by late Kishan Singh were defended. 5. In both the suits, one of the issues is to the effect that the transfer in question is null and void and the suit land is governed by agriculture custom. In Civil Suit No. 392 of 2001, the issue further includes that the sale deed was executed without legal necessity and consideration. The respondent led evidence in both the suits and the evidence of the petitioners was partly recorded in both the suits. In the mean time, an application, dated 20.10.2008 was filed in each suit under Order 8 Rule 1-A (3) read with Section 151 CPC, wherein prayer was made for production of 3 mutation No. 58, dated, 21.3.1964 and copy of Will dated 21.3.1960 allegedly executed by Gopala in favour of his sons Kishan Singh, Bishambar Singh and Bansi Lal. These applications were opposed by respondent in the suits. The learned Civil Judge (Senior Division), Court No.I, Hamirpur, dismissed the applications on 6.2.2010. The order, dated 6.2.2010 has been assailed by the petitioners in each petition. 6. I have heard the learned Counsel for the parties. The learned Counsel for the petitioners has submitted that the evidence of the petitioners was in progress in both the suits when the applications were filed. The mutation No. 58, dated, 21.3.1964 has been attested on the basis of Will dated 21.3.1960 of Gopala. The documents are quite old. The petitioners have taken the plea in the written statement in both the suits that the suit land was not ancestral and, therefore, in order to prove the defence of the petitioners, the documents sought to be placed on record are material. On behalf of the respondent, it is submitted that the documents were not relied, delay has not been explained, nor due diligence on the part of the petitioners has been pleaded in the applications. The applications cannot be allowed to fill-up the lacunae left in the case. The error of jurisdiction committed by learned Civil Judge has not been pointed out nor there is any perversity in the impugned orders. The learned Counsel for respondents has relied on Prithvi Raj and another versus Gopal Singh and others, 2005 (2) S.L.J. 958, Sohan Lal Versus Mohan Lal and others, Latest HLJ 2009 (HP) 1410 and Yunus Ali (Dead) through his LRs versus Khursheed Akram, (2008) 7 SCC 293. In these circumstances, a prayer has been made for dismissing the petitions. 7. One of the questions raised in the two suits is with respect to the alienations made by late Kishan Singh by way of gifts and sales. It is the stand of the respondent that these transfers are illegal as the land in question was ancestral. Their agriculture custom does not permit transfer of ancestral 4 land in the manner it was allegedly transferred by late Kishan Singh. The defence of the petitioners is that the suit land was not ancestral and was also not governed by agriculture custom. In order to prove that the suit land was not ancestral, the petitioners intended to bring on record mutation No. 58 and Will dated 21.3.1960 of Gopala. The petitioners had not closed their evidence and at that stage, the petitioners filed application for proving mutation No. 58 and Will dated 21.3.1960 in each suit. The learned Civil Judge has observed that the petitioners have not explained sufficient reasons as to why they did not produce the aforesaid documents on record. The petitioners in their applications have pleaded that due to inadvertence or bona fide mistake, they could not produce the same at an early stage. 8. In Om Prakash Keshri versus Smt. Chintu Devi, 2007 (4) CCC 769, it has been held what is required to be considered is the relevancy of the document in the background of the pleadings and controversy. In view of defence of the petitioners, it cannot be said that documents sought to be produced by petitioners are not relevant. The respondent will get an opportunity to cross-examine the witnesses, who will prove the documents in question. The learned Civil Judge has not exercised jurisdiction properly while dismissing the applications for placing on record mutation No. 58 and Will, dated 21.3.1960. The learned Civil Judge has not appreciated that substantial rights of the parties are involved in the case. The procedural law is meant to do justice and is to be applied to do substantial justice. The documents were not relied by the petitioners and only for that reason they filed the applications seeking permission of the court to produce the documents in question. The judgments Prithvi Raj and Sohan Lal (supra) are on the point of amendment of pleadings and, therefore, not applicable in the facts and circumstances of the present case. In Yunus Ali (supra), the Supreme Court has held that under Section 115 CPC, High Court cannot re- appreciate evidence. This is not the question involved in the present case. 5 9. The result of the above discussion, both the petitions are allowed, the impugned orders, dated 6.2.2010 in both the petitions are set aside. The application dated 20.10.2008 under Order 8 Rule 1-A (3) read with Section 151 CPC filed by petitioners in each suit is allowed. The parties through their Counsel are directed to appear before the learned Civil Judge (Senior Division), Court No.1, Hamirpur, on 9.9.2010. 10. Both the petitions stand disposed of, so also the pending application(s) if any. August 19, 2010 ( Kuldip Singh ) (pankaj) Judge.