RSA No.2950 of 2007 (O&M) -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2950 of 2007 (O&M) Date of decision:07.10.2010. Gurdial Singh and others ...Appellants Versus Mam Chand and others ...Respondents CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Amarjit Markan, Advocate, for the appellants. Mr. Arun Jain, Senior Advocate, with Mr. Ankur Soni, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The plaintiffs are in second appeal against judgment and decree of the Courts below by which their suit for possession by way of pre-emption on the basis of being tenants over the suit land, has been dismissed. The case set up by the plaintiffs is that defendant No.7 as co- sharer sold agricultural land measuring 12 Kanals 08 marlas, comprised in Khewat No.49, khatoni Nos.76 and 87, Rect. No.19, Killa No.19/2(0-3), 21(0-17), 22(6-18), 23/1(2-6), Rect. No.42 Killa No.3/1/1(2-4) out of total land measuring 37 Kanals 09 Marlas comprised in Khewat No.49, 605 and 221 as per jamabandi for the year 1984-85, to defendant Nos.1 to 5 vide registered sale deed dated 05.04.1990 and that defendant No.7 executed lease deed in favour of defendant No.6 to the extent of 1/3rd share of land measuring 37 Kanals 09 Marlas for a period of 99 years from 30.03.1990 RSA No.2950 of 2007 (O&M) -2- ******* to 29.03.2089 vide lease deed dated 30.03.1990 for a consideration of `10,000/- and possession of the suit land is shown to have been delivered to the lessee, whereas defendant No.7 was not in possession on 30.03.1990 or thereafter, therefore, there is no question of delivery of possession by him to defendant No.6 and the plaintiffs, being in possession as tenants over the suit land under the vendor, had a superior right of pre-emption which was exercised by way of the present suit. Initially, the defendants were proceeded against ex-parte. Gurdial Singh, plaintiff No.1 appeared as PW1 in his ex-parte evidence and the suit was decreed ex-parte on 25.07.1992. The ex-parte decree was challenged by defendant No.5 by moving an application which was dismissed by the Trial Court on 05.01.2001. However, Civil Appeal No.72 of 2001 against the said order was allowed on 11.05.2005 and ex-parte judgment and decree of the Trial Court dated 25.07.1992 was set aside by the lower Appellate Court and the Trial Court was directed to decide the suit afresh. In the second round, defendant No.2 filed his written statement, in which, besides taking preliminary objections, it was alleged that the land in dispute is situated within municipal limits of Pehowa and is not pre-emptible. In the written statement of defendant No.5, it was alleged that the lease deed dated 30.03.1990 was executed fictitiously and the vendor was in possession of the suit property at the time of the execution of the sale deed and the possession was delivered to the vendees. It was also alleged that the plaintiffs were never tenants under the vendor. Defendant No.6 filed his separate written statement in which objection was raised that no pre-emption could be sought on behalf of the minor and the suit was also time barred. It was pleaded that plaintiff Nos.19 to 21 were minors. Defendant Nos.3, 4 and 7 were proceeded against ex-parte vide order dated 19.09.2005 and 20.10.2005 respectively whereas defendant Nos.8 to 26 were given up being unnecessary. The plaintiff filed replication only to the written statement filed by defendant No.5 and on the pleadings of the parties, the Trial Court struck following issues on 14.11.2005: - RSA No.2950 of 2007 (O&M) -3- ******* “1. Whether the plaintiffs are entitled to a decree for possession by way of pre- emption as prayed for on the grounds mentioned in the plaint?OPP. 2. Whether suit of the plaintiff is not maintainable?OPD. 2(a). Whether the suit property is situated within municipal limit of Pehowa?OPD. 3. Whether suit is time barred?OPD. 4. Whether plaintiff has no cause of action to file the present suit?OPD. 5. Whether present suit is bad for mis- joinder and non-joinder of necessary parties?OPD.” While leading their evidence, plaintiff No.1 Gurdial Singh appeared as PW1 and tendered some documents, whereas Gurcharan Singh – defendant No.5 appeared as DW5 and led his documentary evidence. The Trial Court decided issue No.1 and 2(a) in favour of the defendants and against the plaintiffs holding that the plaintiffs are not the tenants and the land in dispute is not pre-emptible as it is situated within municipal limits of Pehowa. Aggrieved against the judgment and decree of the Trial Court, the plaintiffs had filed first appeal under Section 96 of the Code of Civil Procedure, 1908 [for short “CPC”] in which they had also filed an application under Order 41 Rule 27 read with Section 151 of the CPC in order to lead additional evidence by producing copies of jamabandi for the year 1963-64, 1969-70, 1974-75 and 1979-80. The said application was, however, dismissed by the First Appellate Court vide its order dated 14.02.2007 on the ground that the reason assigned in the application that the said jamabandis could not be led as evidence in the Trial Court, despite exercise of due diligence, was not acceptable and in the absence of any other reason, the plaintiffs were not allowed to lead the additional evidence. While appreciating the evidence available on record, the learned RSA No.2950 of 2007 (O&M) -4- ******* First Appellate Court made the following observations: - “18. As regards the plaintiffs' averment being tenants over the suit land measuring 12 Kanals 08 Marlas, as detailed in para no.3 of the plaint, comprised in Khewat No.49, Khatoni Nos.86 and 87, Rect. No.19, Killa Nos.19/2, 21, 22, 23/1, Rect. No.42, Killa No.3/1/1, plaintiff No.1 Gurdial Singh PW1 deposed that they used to pay 1/3rd batai to Lal Chand etc. In fact the plaintiffs are not sure whether it was 1/4th batai or 1/3rd batai since it has been mentioned in affidavit Ex.PW1/A that it was 1/4th batai and in cross examination he stated that it was 1/3rd batai. In this regard first of all reference is made to the jamabandi for the year 1984-85 Ex.P3 wherein Subhash Chand vendor- defendant No.7 has been shown owner to the extent of 2/3rd share and Dharam Pal to the extent of remaining 1/3rd share and the plaintiffs have been shown as ghair maurusi on 1/3rd batai. 19. Ex.P4 is the copy of khasra girdawari of the suit land for the period from kharif 1985 to rabi 1990. Ex.P6 is also copy of khasra girdawari from kharif 1989 to rabi 1990. Ex.P7 is also khasra girdawari from 1992 to rabi 1995. Ex.P8 is the copy of jamabandi for the year 1999-2000 with no entries regarding nature of the rent. Likewise Ex.P9 is a copy of khasra girdawari from kharif 1999 to rabi 2000. Ex.P10 is also copy of jamabandi for the year 1994-95 and Ex.P11 is again copy of RSA No.2950 of 2007 (O&M) -5- ******* khasra girdawari from kharif 2004 to rabi 2005. In the said documents, there is no entry regarding payment of rent by the plaintiffs to Subhash Chand. 20. besides it, no document creating tenancy rights in favour of the plaintiffs has been placed on the file, nor there is any proof regarding payment of any rent by the plaintiffs to Subhash Chand and the version of the plaintiffs that they had been paying rent to Lal Chand father of Subhash Chand is not acceptable in the absence of any cogent and conclusive evidence that he was authorized in this regard to collect rent on behalf of his son from the very beginning. 21. So in these circumstances, as held by learned Trial Court, the plaintiffs have failed to prove themselves as tenants over the land in suit at the time of sale on 05.04.1990 and filing of the suit on 03.04.1991 and date of decree on 03.01.2006. The entries regarding their being ghair-maurusi cannot ipso-facto go to prove that they were tenants on the suit land unless rent column described their liability to pay rent and that entry alone in the column of cultivation cannot confer status of tenants as held in Ram Karan Versus The Financial Commissioner and others, 1980 P.L.J. 295 (P&H).” While dealing with the question of inclusion of the suit land within municipal limits of Pehowa and the land had become unpre- emptible, the finding was recorded in para No.23 of the judgment of the RSA No.2950 of 2007 (O&M) -6- ******* First Appellate Court, which reads as under: - “23. As regards the land in suit now coming within the municipal limits of Pehowa, notifications Ex.D1 and Ex.D2 in this regard have been placed on the file, which has not been refuted by the other side. So in these circumstances also, in view of this fact, learned trial court has rightly held that the land in suit was not pre-emptible.” Aggrieved against the judgment and decree of the Courts below, the plaintiffs have come up in this second appeal, in which learned counsel for the appellants has raised 3 questions, viz. i) the Courts below have misread the evidence on record in respect of determining the question of tenancy of the appellants over the land in dispute; ii) the learned First Appellate Court has erred in law in dismissing the application for additional evidence as the documents sought to be produced on record are all original documents; and iii) the notification No.33/6/80-3CI dated 24.11.1992, relied upon by the defendants to contend that the land in dispute has been included in the municipal limits of Pehowa, does not pertain to the land in dispute. Elaborating his argument on the first point, learned counsel for the appellants has submitted that as per jamabandi for the year 1984- 85, the plaintiffs are recorded as tenants under the vendor, therefore, it would not make any difference if they have not been recorded as tenants in the subsequent jamabandis as held by the learned First Appellate Court because a tenant would remain a tenant until and unless evicted by an order of a competent Court of law or when he himself relinquishes his tenancy rights. In this regard, he has relied upon a decision of the Supreme Court Mansu Vs. Shadi Ram, 1996 AIR (SC) 1818. Although, learned counsel for the appellants has also referred to the decision of the Supreme Court in the case of Ram Chand Vs. Randhir Singh and others, AIR 1995 Supreme Court 130 and a decision of this court in the case of RSA No.2950 of 2007 (O&M) -7- ******* Smt. Ratni Devi Vs. Chankanda Ram and another, 2007(2) PLR 736, but these judgments are not applicable as the ratio of these judgments is to the effect that if a person is tenant over a part of the land sold, he has a right to pre-empt the entire land sold. This question is not involved in this appeal. In respect of his second submission that the learned First Appellate Court has erred in rejecting his application for additional evidence, he has relied upon a decision of the Supreme Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., 2008 (4) JT (SC) 587 and Single Bench judgments of this Court in the cases of Ajaib Singh and others Vs. The State of Punjab, 1987 PLJ 226, Kishan etc. Vs. Narain Dass, 1990(2) PLR 51 and Ram Kishan Vs. Inder Pal and others, 2004(3) RCR(Civil) 572. In respect of his third submission that the defendants have failed to connect the suit property with the notification Ex.D1, learned counsel for the appellants has tried to persuade this Court to re-consider the notification on facts, but he could not show from the record that this objection was ever raised by the plaintiffs before the Courts below. In reply to the aforesaid issues, learned counsel for the respondents has submitted that insofar as the first question with regard to the jamabandi for the year 1984-85 is concerned, he has submitted that the said jamabandi does not help the plaintiffs because column No.9 of rent is vacant and 2/3rd share of the land in dispute is under self-cultivation and 1/3rd share is under cultivation of some other person under whom the plaintiffs claim themselves to be the tenants. Meaning thereby, the plaintiffs did not claim themselves to be the tenants directly unde the vendor. Therefore, it is submitted that the finding recorded by the Courts below in this regard cannot be termed as misreading of evidence. In respect of the second issue as to whether the First Appellate Court had rightly dismissed the application for additional evidence, he has relied upon a decision of the Supreme Court in the case of Smt. Krishana Vs. Magha Ram and another, 2010(2) RCR(Civil) 91 to contend that the plaintiffs cannot be allowed to fill up the lacuna as they knew the RSA No.2950 of 2007 (O&M) -8- ******* documents which were already in existence. In respect of the third submission with regard to notification about the inclusion of suit property in the municipal limits of Pehowa, it is submitted that the plaintiffs cannot be allowed to make out a new case in the second appeal as it has never been their case before the Courts below that the said notification is not applicable, rather the consistent case of the plaintiffs is that the notification was subsequent to the date of sale and to the date of the filing of the suit, therefore, it is prospective in nature and would not apply to the facts and circumstances of the present case. It is, thus, submitted that the plaintiffs have virtually admitted that by virtue of the said notification, the land in dispute has come in municipal limits of Pehowa, but were consistently objecting to its applicability on the ground that it is prospective in nature. In this regard, learned counsel for the defendants has read over relevant portions of the judgment of the Trial Court and the First Appellate Court and also para No.8 of the Grounds of Appeal, which reads as under: - “8. That the Lower Appellate Court has gravely erred by confirming the findings of the trial court contained under issue No.2-A even without dealing with the subsequent notification dated 24.12.1992 (Ex.D-1). Since this notification came into existence during the pendency of the suit, therefore, both the courts below have gravely erred by holding that the suit land is not pre-emtable. The suit of the plaintiffs has already been decreed on 25.07.1992 by Additional Senior Sub Judge, Pehowa Annexure A-6 and the plaintiffs- appellants had already implemented this decree through executing court and as such they have got substantial right in the suit land, therefore, subsequent notification dated 24.12.1992 Ex.D-1 is not applicable to the present suit. RSA No.2950 of 2007 (O&M) -9- ******* Both the Courts below have gravely erred by relying upon the subsequent notification dated 24.12.1992 (Ex.D-1) in this case especially when they had already implemented the pre- emption decree dated 25.07.1992 through executing court.” It was, thus, pointed out that it was never the case of the plaintiffs that khasra numbers and areas mentioned in the notification do not cover the land in dispute. In this regard, learned counsel has relied upon two decisions of this Court in the case of Rajinder Parshad Vs. Sohan Lal and others, 1988 PLJ 363 and Bachittar Singh Vs. Gurnam Kaur etc., 1980 CLJ (Civil) 296. He has further submitted that under the Pre-emption Act, 1913, the plaintiffs have to maintain their superior rights at all the three stages, namely, sale, suit and decree. In this case, sale was effected on 05.04.1990, suit was filed on 03.04.1991 and decree was passed on 03.01.2006. In support his submission, he has relied upon a decision of the Supreme Court in the case of Bhagwan Das (Dead) by LRs and others Vs. Chet Ram, 1970 PLJ 780. I have heard learned counsel for the parties and perused the record with their able assistance. First of all, I shall dispose of CM No.4610-C of 2010 filed by the appellants under Section 151 of the CPC to place on record true translated copies of the document Annexures P-2 to P-5 (jamabandis for the years 1963-64, 1969-70,1974-75 and 1979-80) on the ground that the jamabandis in vernacular (in Hindi) have already been filed with the memo of appeal and the translated copies thereof are being filed for the convenience of the Court. Reply to this application was filed by the respondents, in which it was alleged that application for additional evidence was already dismissed by the learned District Judge, Kurukshetra vide his order dated 14.02.2007, therefore, these documents cannot be allowed to be taken on record. It is pertinent to mention that during the pendency of the first RSA No.2950 of 2007 (O&M) -10- ******* appeal before the First Appellate Court, the appellants had filed an application under Order 41 Rule 27 read with Section 151 of the CPC for permission to lead additional evidence for the purpose of producing jamabandis for the years 1963-64, 1969-70,1974-75 and 1979-80, but the said application was dismissed by the learned District Judge, Kurukshetra on 14.02.2007 on the ground that the said documents were within the knowledge of the appellants earlier, therefore, in terms of Order 41 Rule 27(1)(aa) of the CPC, they were not allowed to lead additional evidence in appeal. In this case, the appellants have also challenged the said order dated 14.02.2007 passed by the First Appellate Court by which their application for leading additional evidence was dismissed. It may also be clarified that the application for leading additional evidence was dismissed on the same day when the main appeal was dismissed by the First Appellate Court. The first question, which is to be decided by this Court, is as to “whether the First Appellate Court should have or should not have allowed the application for additional evidence because learned counsel for the appellants has placed heavy reliance upon the jamabandis Annexures P-2 to P-5 in order to show that they were in possession of the land in dispute as tenants”. Before appreciating the respective contentions, it would be worthwhile to peep into the relevant provisions of law, namely, Section 107 and Order 41 Rule 27 of the CPC, which are reproduced as under: - Section 107 of the CPC “107. Powers of appellate Court.-(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. RSA No.2950 of 2007 (O&M) -11- ******* (2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” Order 41 Rule 27 of the CPC “27. Production of additional evidence in Appellate Court. --(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) 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] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission.” RSA No.2950 of 2007 (O&M) -12- ******* Section 107 of the CPC empowers an Appellate Court to determine a case finally, to remand a case, to frame issues and refer them for trial and to take additional evidence or to require such evidence to be taken. With this substantive enabling power, Order 41 Rule 27 of the CPC came into being which lays down further conditions and circumstances in which the Appellate Court could take the additional evidence. Originally, there were two conditions in Order 41 Rule 27 of the CPC, i.e. (a) if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, and (b) if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, but in the year 1976, Rule (aa) was also inserted in Order 41 Rule 27(1) of the CPC which provides that if the party seeking to produce additional evidence, establishes that despite exercise of due diligence, the evidence which is sought to be produced, was not within his knowledge or despite exercise of due diligence, the evidence could not be produced by him when the decree appealed against was passed, could be granted permission. Thus, Clause (aa) further enables the Court to give permission but Clause (b) of Order 41 Rule 27(1) empowers the Appellate Court to give permission for additional evidence if the Court itself requires any document to be produced or any witness to be examined for the purpose of its assistance for coming to a just conclusion and for any other substantial cause. Substantial cause though has not been defined, therefore, it depends upon facts and circumstances of each case. In the light of the aforesaid provisions, the order passed by the learned First Appellate Court dismissing the application of the appellants for additional evidence is to be examined. Even if the documents, namely, jamabandis which are sought to be produced on record, were within knowledge of the appellants, the Court can always allow it in terms of Order 41 Rule 27(1) (b) of the CPC. To my mind, documentary evidence which cannot be created or manufactured for the first time after the decision of the suit i.e. any official document whose authenticity is not in dispute and is capable RSA No.2950 of 2007 (O&M) -13- ******* of assisting the Court to take final decision in respect of the dispute between the parties, such evidence should not normally be disallowed to be taken on record. In this regard, the judgments relied upon by learned counsel for the appellants in the case of North Eastern Railway Administration, Gorakhpur (supra) and Ram Kishan (supra) are fully applicable, whereas the judgment relied upon by learned counsel for the respondents in the case of Smt. Krishana (supra) is not applicable as the facts of that case were altogether different because in that case, application under Order 41 Rule 27 of the CPC by which permission was sought to lead additional evidence to prove documents Mark-A to Mark-C, namely, lease deed, agreement and receipt respectively, were privately prepared documents regarding which this Court had held that those were within the knowledge of the party who could have produced those documents before the Trial Court but after the decision of the suit, in order to fill up the lacuna, the said documents cannot be allowed to be produced on record. Thus, on its own facts, there is no quarrel with the law laid down by this Court in the case of Smt. Krishana (supra). In view of the aforesaid discussion, the question with regard to order passed by the First Appellate Court on 14.02.2007 by which application filed by the appellants for leading additional evidence to produce on record certified copies of jamabandis was dismissed, is decided in favour of the appellants and the said order is set