R.S.A No. 1662 of 1984 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A No. 1662 of 1984 (O&M) Date of decision:- July 5th, 2011 Gurudwara Sahib Damdama Sahib Bunga Mata Sunder Kaur ... Appellant. Versus Ajaib Singh & Anr. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. S.K.Gupta, Advocate, for the appellant. Mr. Kabir Sarin, Advocate, for respondent No.2. Gurdev Singh, J (oral) This is the second appeal preferred by the appellant/plaintiff- Gurudwara Sahib Damdama Sahib Bunga Mata Sunder Kaur Sahib Diwan Ji, Padshahi Daswin at Talwandi Sabo, against the judgment and decree dated 26.3.1984 passed by Additional District Judge, Bathinda, vide which he dismissed the first appeal preferred by the plaintiff against the judgment and decree dated 17.9.1979 passed by Senior Sub Judge, Bathinda, dismissing the suit of the plaintiff for possession of the land in dispute bearing Khasra No.108 measuring 13 Kanals 10 Marlas situated in Village Guru Sar Jaga, Tehsil and District Bathinda. According to the plaintiff the land in dispute belongs to the Padshahi Daswin (Bunga Mata Sunder Kaur- Sahib Dewan Ji) and the Gurudwara itself was being managed and controlled by Mahant Narain Singh as R.S.A No. 1662 of 1984 (O&M) -2- Mohtamin till his death, which took place in the month of February 1976. That Mohtamim was coming in possession of this land on behalf of the Gurudwara. Balwant Singh – defendant No.2/respondent No.2, illegally and without any authority occupied this land in the year 1975 in collusion with Ajaib Singh- defendant No.1/respondent No.1, after getting the same mutated in his favour as owner, vide mutation No.1034. That mutation order is just a paper transaction and is without jurisdiction and is liable to be ignored. The suit was contested only by defendant No.2. In his written statement he denied the allegation of the plaintiff and inter alia pleaded that he purchased the land in dispute from Ajaib Singh – defendant No.1 vide registered sale deed dated 10.6.1975 for a valuable consideration of `12,000/- and is a bona fide purchaser. The plaintiff was never in possession of this land and it was Narain Singh, who was the owner in possession and after his death the same was mutated in the name of defendant No.1. He took preliminary objections to the effect that the suit is not maintainable in the present form and plaintiff has no cause of action nor any locus standi to file the same. In the replication to the written statement the plaintiff controverted the contentions of defendant No.2 and reiterated the pleadings made in the plaint. On the pleadings of the parties, following issues were framed by learned trial Court:- 1. Whether the plaintiff is the owner of the suit land?OPP. R.S.A No. 1662 of 1984 (O&M) -3- 2. Whether Ajaib Singh was the owner of the suit land and defendant No.2 purchased the same from him as alleged?OPD. 3. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction?OPD. 4. Whether the suit has been filed by a duly authorised body?OPP. 5. Whether the suit is not maintainable in the present form?OPD. 6. Relief. To succeed, in the suit the plaintiff examined Balwant Singh PW1 and tendered in evidence number of documents. On the other hand, defendant No.2 himself stepped into the witness box as DW1 and also proved on record the documents pertaining to the land in dispute. After having gone into the evidence so produced by the parties and hearing learned counsel on their behalf, the learned trial Court decided the issues No. 1 and 2 against the plaintiff and other issues in his favour and resultantly dismissed the suit. Those findings were affirmed in the appeal by the first Appellate Court. I have heard learned counsel for both the sides. According to the plaintiff the following substantial questions of law are involved in the present appeal:- 1. Whether the lower appellate court has erred in dismissing the application for permission to produce additional evidence? 2. Whether the Courts below have erred in holding that Narain Singh has owned the property in his individual capacity and not as the office holder of the institution? R.S.A No. 1662 of 1984 (O&M) -4- 3. Whether respondent/defendant has failed to prove on record that Ajaib Singh is legal heir and son of Narain Singh? So, the mutation/sale by Ajaib singh in favour of Balwant Singh is illegal. The learned counsel appearing on his behalf tried to assert that the evidence which the plaintiff wanted to produce before the first Appellate Court was very much material for deciding the controversy between the parties and the same consists of the documents of unimpeachable nature. Had that evidence been allowed to be produced the decision of the case would have been different. From those documents it stands proved that the land in dispute was gifted to Prem Singh, predecessor in interest of Narain Singh as Mohtamin of the Gurudwara and as such it was in the ownership of plaintiff-Gurudwara. Once that evidence would have been produced the findings of the lower Appellate Court would have been different and as such all the above said questions are substantial question of law giving right to the plaintiff to file the second appeal thereby challenging the findings recorded by the lower Court and the first Appellate Court. On the other hand learned counsel for defendant No.2 tried to contend that no such substantial question of law is involved and the second appeal is not competent. Concurrent findings of fact have been recorded by the lower Courts, which cannot be upset in the second appeal. He tried to place reliance on the following two judgments of the Hon'ble Supreme Court in support of his contentions:- 1. Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & Ors, R.S.A No. 1662 of 1984 (O&M) -5- (1999) 3 Supreme Court Cases 722 2. Narayanan Rajendran and Anr. Vs. Lekshmy Sarojini and Ors., (2009) 5 Supreme Court Cases 264 It was held in Kondiba Dagadu Kadam's case (Supra) that after amendment made in Section 100 of the Code of Civil Procedure vide Amending Act 104 of 1976, second appeal can be filed only if substantial question of law is involved. It was also held that it was not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first Appellate Court. Again it was held by the Hon'ble Supreme Court in Narayanan Rajendran's case (Supra) that the scope of interference by the High Court in the second appeal under Section 100 C.P.C, after the 1976 Amendment, has been drastically changed and is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. Therefore, the first exercise to be done is whether any substantial question of law arises in the present appeal and is to be formulated as such? Questions No.2 and 3 so formulated by the counsel for the plaintiff would become substantial questions of law only in case the permission is granted to the plaintiff to lead additional evidence, which according to the plaintiff is sufficient for proving that the land in dispute was gifted to Prem Singh as Mohtamin of plaintiff-Gurudwara and as such it became the property of the Gurudwara itself. R.S.A No. 1662 of 1984 (O&M) -6- The application filed by the plaintiff for producing additional evidence did not find favour with the first Appellate Court and was dismissed on the grounds incorporated in the judgment. I do not find any reason to differ with those grounds. As per order 41 Rule 27 C.P.C, no party is entitled to produce additional evidence in the appeal whether oral or documentary, unless the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within 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 requires any document to be produced or any witness to be exercised to enable it to pronounce judgment or for any other substantial cause. After having perused the records, it cannot be said that the plaintiff was able to make out a ground that this evidence was not in his knowledge or he could not produce the same, after exercising due diligence, at the time the decree under appeal was passed. Learned counsel for the plaintiff after having made this Court to go through the contents of the documents, which the plaintiff wants to produce by way of additional evidence, was not able to connect the land in dispute with the land allegedly gifted to Prem Singh nor it can be made out from those documents that any land was gifted to Prem Singh as Mohtamin of plaintiff-Gurudwara or that at any point of time Prem Singh was the Mohtamin of this Gurudwara,. Then how it can be said that these documents are required to be produced before this Court for deciding the controversy R.S.A No. 1662 of 1984 (O&M) -7- between the parties effectively or that there is substantial cause for producing this additional evidence. The plaintiff was not able to make out a case for additional evidence. Therefore, it cannot be said that any substantial question of law is involved in the present appeal and the same is dismissed accordingly. July 5, 2011 (Gurdev Singh) tripti Judge