SAO No. 52 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SAO No. 52 of 2010 (O&M) Date of decision: December 6, 2010 Sukesh Kumar ...Appellant Versus Amar Singh and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. KS Cheema, Advocate, for the appellant. GURDEV SINGH, J. The appellant/plaintiff filed suit for declaration to the effect that the Will dated 14.2.1989 and the mutation No. 1282 sanctioned on the basis thereof in favour of the defendant No.1 and the sale deed dated 9.6.1995 executed by that defendant in favour of defendants No. 2 to 5 regarding the land in dispute are illegal, null and void and not binding on his rights and for permanent injunction restraining the defendants from interfering in his peaceful possession. The suit was decreed by the Additional Civil Judge (Senior Division), Jhajjar, vide judgment and decree dated 19.11.2003. The defendants preferred first appeal against that judgment and decree in which an application was filed for leading additional evidence. That application was allowed and resultantly, the appeal was accepted by the Additional District Judge, Jhajjar, and the suit was remanded to the trial court for re-trial after recording the statement of SAO No. 52 of 2010 2 Chhattar Singh, vide order dated 28.9.2010. The present second appeal has been preferred against that order. The plaintiff averred in his plaint that Anand Singh was the owner in possession of ½ share of the land in dispute situated in the revenue estate of village Kutani, Tehsil and District Jhajjar. He died issueless on 6.10.1992, leaving behind him as his nephew. During his life time, he treated him (plaintiff) as his own son and executed a registered Will in his favour, while in sound disposing mind. After his death, he became the owner in possession of the land in dispute. However, defendant No.1 claimed herself to be the owner in possession on the basis of the registered Will dated 14.2.1989 and mutation No. 1282 dated 13.3.1993 sanctioned on the basis of that Will. No notice was served upon him before sanctioning that mutation and the Will is a result of the collusion with the scribe and the attesting witnesses. Anand Singh was not in sound mind at the time the alleged Will was executed. The plaintiff also averred that defendant No.1 executed sale deed dated 9.6.1995 in favour of defendants No. 2 to 5, which is illegal, null and void and not binding upon his rights. The suit was contested by defendants No. 2 to 5. In their written statement, they pleaded that Anand Singh had executed Will dated 3.11.1986 in favour of the plaintiff but the same was revoked by him during his life time by executing the second Will dated 14.2.1988 in favour of his own wife Ram Vati-defendant No.1. After his death, defendant No.1 became the owner of the land in dispute and the mutation was duly sanctioned in her favour. She was competent to sell this land and accordingly sold the same in their favour, vide sale deed dated 9.6.1995. In the replication to the written statement of defendants No. 2 SAO No. 52 of 2010 3 to 5, the plaintiff denied the contentions raised therein and reiterated all the averments made in the plaint. On the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether the plaintiff is owner and in possession of suit land as detailed & described in para no.1 of the plaint ? OPP 2. Whether the impugned Will dated 14.2.1988 registered on 14.2.1989 is wrong, illegal, nul and void and not bindings on the rights of the plaintiff ? OPP 2A. Whether the Will dated 14.2.1989 is valid one and binding upon the rights of the plaintiff ? OPD 3. Whether the mutation No. 1282 sanctioned in favour of the defendant No.1 on the basis of impugned Will aforesaid is also liable to be set aside being wrong, illegal, null and void and not bindings on the rights of the plaintiff ? OPP 4. Whether the impugned sale deed dated 9.6.1995 executed by defendant No.1 in favour of the defendants no. 2 to 5 is also liable to be set aside being wrong, illegal, null and void and not bindings on the rights of the plaintiff ? OPP 5. Whether the defendants no. 2 to 5 are illegally interfering into the peaceful possession and ownership of the plaintiff over the suit land and are illegally dispossessing the plaintiff therefrom ? OPP SAO No. 52 of 2010 4 6. Whether the plaintiff has no locus-standi to file the present suit ? OPD 7. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 8. Whether the suit of the plaintiff is barred by limitation ? OPD 9. Whether the plaintiff is estopped from filling the present suit by his own act & conduct ? OPD 10. Whether the plaintiff has no cause of action to file the present suit ? OPD 11. Whether the defendants are entitled to special costs U/s 35-A CPC ? OPD 12 Relief.” Both the sides produced their evidence in support of their respective cases. After going through that evidence and hearing learned counsel on their behalf, the trial court recorded the findings on all the issues and resultantly, decreed the suit of the plaintiff. I have heard learned counsel for the plaintiff. It has been submitted by the learned counsel for the plaintiff that the first appellate court committed an illegality while allowing the application of the defendants permitting them to examine Chhattar Singh, the other attesting witness of the Will propounded by them, by way of additional evidence. The defendants have already examined one of the attesting witnesses of the Will and in view of the statement of that attesting witness there was enough evidence before the first appellate court to decide the appeal. No case for additional evidence was made out by the SAO No. 52 of 2010 5 defendants. When such is the position, substantial question of law arises, whether the additional evidence was validly allowed by the first appellate court ?. In support of his submissions, he placed reliance on Kamini Das Vs Upendra Biswal 2006 (2) Civil Court Cases 754. The relevant para of the judgment, so relied upon by the learned counsel, is re-produced below:- “15. Order 41, Rule 27, C.P.C. is an exception to the general rules relating to the stage at which evidence should be introduced in a proceeding. That is evident from the language employed in Sub-rule 1 of Rule 27 when it states that, “the parties to an appeal shall not be entitled to produce additional evidence.” The exceptions are (i) when the Trial Court refused to admit evidence which ought to have been admitted, (ii) the party seeking to produce additional evidence in spite of exercise of due diligence was not aware of existence of such evidence or that he could not have produced such evidence at the relevant time in the Trial Court and (iii) the Appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial case. In his application under Order 41, Rule 27, C.P.C. filed before the Appellate Court, Opp. Party did not explain any reason either to state that the Voter list was not admitted into evidence though it ought to have been so admitted. She also did not state that the Voter lists were not within her knowledge or could not have been produced by her at the time of hearing of the election dispute. Then it is to be SAO No. 52 of 2010 6 considered whether the Appellate Court would have been required that document to be produced to enable it to pronounce judgment or for any other substantial cause. Generally litigants invoke this clause whenever they fail to satisfy the exceptions as provided in Clauses (a) & (aa) in Sub- rule 1 of Rule 27. It is borne in mind that Court is to decide a dispute on the basis of evidence available on record. Both the parties are equal before it at every stage of proceeding. Negligence of a party to prove his case cannot be encouraged by invoking Clauses (b) of Sub-rule 1 so as to do prejudice to the interest of the opponent. But, where the Court finds that evidence available on record are evenly counter balance and some evidence are available to arrive at the truth to decide the dispute or that evidence available on record is not sufficient to decide the dispute in one way or the other and some more evidence is required, then in such cases Clause (b) of Sub-rule 1 is to be invoked. Putting the fact situation in this case with that requirement, we have already recorded that there is no dearth of evidence to decide the issue. Therefore, this Court does not need the Voter Lists of 1999, 2000 & 2001 to be introduced as additional evidence. No doubt, such evidence if would have been introduced at the time of trial, then that could have facilitated the Opp. Party to canvass her case in a better manner on the issue of her age. Since she neglected her case at that stage by not adducing such evidence and when the court does not need those documents, therefore, we do not find any SAO No. 52 of 2010 7 illegality in the conduct of the learned District Judge in rejecting the application under Order 41, Rule 27, C.P.C.” It has been observed by the first appellate court in the judgment that the execution of the Will so propounded by the defendant does not stand prove from the statement of the attesting witnesses examined by them. He deposed in the court that his thumb impressions were obtained forcibly. It is also very much clear from that judgment that the defendants were able to prove that previously the other attesting witness Chhattar Singh was not traceable and they could not examine him on that ground and now he has been traced. The case of the defendants clearly falls within one of the exceptions carved out under Order 41 Rule 27 of the CPC. A correct finding was recorded by the first appellate court that Chhattar Singh could not be examined by the defendant at the time of the passing of the decree. No such illegality has been committed by the first appellate court while allowing the application of the defendants for additional evidence. There is no merit in this appeal and the same is dismissed. December 6, 2010 (GURDEV SINGH ) prem JUDGE