RSA No.30 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.30 of 1990 Date of Decision: 11.05.2009 Surat Singh ..Appellant Vs. Makhan Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Vikram Bali, Advocate, for the appellant. Mr.Vishal Ranjan, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 15.9.1989 passed by learned lower appellate court vide RSA No.30 of 1990 2 which suit filed by the plaintiff-appellant seeking possession of suit property marked as ABCD measuring ½ marla out of khasra number 12R/20/6(0-1) situated at village Udhanwal Tehsil Batala, has been ordered to be dismissed. The plaintiff/appellant brought a suit against Makhan Singh for possession of the suit land shown by letters A B C D measuring half marla out of khasra number 12R/20/6(0-1) situated at village Udhanwal Tehsil Batala by removing Malba therefrom. The plaintiff/appellant claimed that he had purchased the site in dispute by way of registered sale deed dated 3.11.1978 from Joginder Singh his brother who delivered possession of the site. In the absence of the plaintiff/appellant, defendant/respondent unlawfully occupied the suit land and raised construction thereon without his consent about 1/¾ years before 4.8.1983 i.e. date of filing of suit. The plaintiff claimed that he came to know about illegal construction only about 1/¾ years before filing of the suit. The suit was contested wherein besides taking some preliminary objections the defendant pleaded that neither the plaintiff nor his brother Joginder Singh was owner of the site in dispute. The sale deed was said to be nullity. It was denied that suit property falls in Khasra No. 12/20/6. It was claimed by the defendant/respondent that Mohinder Singh and Banta Singh sons of Khem Singh were owners of khasra number in dispute, who mortgaged it with Bhajan Singh son of Surain Singh for Rs.90/- vide mortgage deed dated 15.2.1958. Mohinder Singh co-sharer RSA No.30 of 1990 3 sold khasra number in dispute to one Hira Singh son of Malla Singh vide sale deed dated 22.4.1960. Hira Singh paid off mortgagee vide receipt dated 8.11.1963 and built a shop which was still standing. He also raised boundary wall, and thereafter sold it to the defendant vide sale deed dated 11.2.1974. Since then he is owner in possession of the shop. The area of the shop was said to be 1 marla. The site plan submitted by the plaintiff/appellant was disputed. It was pleaded that on an earlier occasion a dispute arose and in the police station plaintiff/respondent received a sum of Rs.200/-, and gave up his claim to the property in dispute by admitting him to be the owner. Plea of estoppel was also raised. Learned trial court on appreciation of evidence was pleased to decree the suit on 18.9.1985. The defendant/respondent preferred an appeal. The learned lower appellate court found that material issue was not framed by the learned trial court. Accordingly, additional issue No.3-A was framed vide order dated 20.1.1986. The judgment and decree of the learned trial court was ordered to be set aside and the case was remanded back for fresh decision on all the issues. The matter was reheard after giving the parties an opportunity to lead evidence. Learned trial court on appreciation of evidence again decreed the suit by holding that the disputed site A B C D formed part of khasra number 20/6 of Rect. No.12 as claimed by the plaintiff/appellant. Learned lower appellate court has been pleased to accept the RSA No.30 of 1990 4 appeal by reversing the finding on issue No.3-A. Though the appeal has been argued on merit, however, it is pointed out by the learned counsel appearing on behalf of the appellant/plaintiff, that before the learned lower appellate court an application under Order 41 Rule 27 of the Code of Civil Procedure was moved for leading additional evidence to produce on record Jamabandi, to show the ownership of Joginder Singh. The appeal has been decided without passing any order on the application. The learned lower appellate court took note of jamabandis produced by the plaintiff/appellant by way of additional evidence, though the application remained undecided, in spite of notice. Learned counsel appearing on behalf of the respondent pointed out that no opportunity was given to the defendant/respondent to contest the application moved by the plaintiff/ appellant for leading additional evidence, nor it was decided. In view of the admitted position, this appeal raises the following substantial question of law for consideration by this court:- “Whether the judgment and decree passed by the learned lower appellate court can be sustained, when it is proved on record that the application moved under Order 41 Rule 27 of the Code of Civil Procedure moved before the learned lower appellate court remained undecided?” Learned counsel appearing on behalf of the appellant contends that substantial question of law is not required to be adjudicated, in the RSA No.30 of 1990 5 present case as the learned lower appellate court has already taken into consideration the evidence to be produced by way of additional evidence. The appeal be decided on merits irrespective of the fact whether the application under Order 41 Rule 27 of the Code has been decided or not. This plea can not be accepted, as in this eventuality, the judgment relied upon has to be ignored. Learned counsel appearing on behalf of the respondent contends that by way of application under Order 41 Rule 27 of the Code the plaintiff/appellant tried to fill up lacuna in the case. It was, therefore, not proper for the learned lower appellate court to have decided the appeal by taking note of additional evidence, without passing any order. On consideration of the matter, I find that the judgment and decree passed by the learned lower appellate court cannot be sustained in view of the law laid down in the case of Jatinder Singh & Anr. Minor through Mother Vs. Mehar Singh and Ors. 2009 (1) RCR (Civil) 253 wherein Hon'ble Supreme Court has been pleased to lay down as under:- “4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the RSA No.30 of 1990 6 admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.” In view of the law laid down by Hon'ble Supreme Court in the case of Jatinder Singh & Anr. Minor through Mother Vs. Mehar Singh and Ors. (supra), the substantial question of law is answered in favour of the appellant. This appeal is allowed. The judgment and decree of the learned lower appellate court is set aside and the case is remanded back to the learned lower appellate court to decide the appeal afresh by disposing of the application moved under Order 41 Rule 27 of the Code. The parties through their counsel are directed to appear before learned lower appellate court on 20.7.2009. 11.05.2009 (Vinod K.Sharma) rp Judge