RSA No. 1428 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1428 of 2007 Date of Decision: 20.10.09 1. Labh Kaur widow of Gurdial Singh; 2. Gurtej Singh @ Teja singh son of Gurdial Singh; 3. Satnam Singh son of Gurdial Singh; 4. Hardial Singh son of Amar Singh; 5. Karnail Singh son of Amar Singh; 6. Balwinder Singh son of Mukhtiar Singh son of Amar Singh; 7. Naib Singh son of Mukhtiar Singh son of Amar Singh; 8. Dharshan Singh son of Mukhtiar Singh son of Amar Singh; all residents of Kular Khurd, Tehsil and District Sangrur. 9. Karamjit Kaur daughter of Mukhtiar Singh son of Amar Singh, now wife of Kulwant Singh, resident of village Sanghrerri, Tehsil and District Sangrur. 10. Charanjit Kaur daughter of Mukhtiar Singh, son of Amar Singh, now wife of Joginder Singh, resident of village Gharachon, Tehsil and District Sangrur (legal representative of Mukhtiar Singh deceased). ... Appellants Versus 1. Lachman Singh son of Dhan Kaur wife of Bishan Singh; 2. Chand Singh son of Dhan Kaur, wife of Bishan Singh; 3. Darbara Singh son of Dhan Kaur wife of Bishan Singh; 4. Tej Singh son of Dhan Kaur wife of Bishan Singh; RSA No. 1428 of 2007 2 5. Gurnam Kaur daughter of Dhan Kaur wife of Bishan Singh; 6. Chand Kaur daughter of Dhan Kaur wife of Bishan Singh; all residents of Regla, Tehsil Sunam, District Sangrur. ...Respondents 7. Manjit Kaur daughter of Gurdial Singh son of Amar Singh; 8. Sukhjit Kaur, daughter of Gurdial Singh son of Amar Singh; both residents of village Kular Khurd, Tehsil and Distt. Sangrur. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. A.S. Jattana, Advocate, for the applicants/appellants. Mr. Jatinder Singla, Advocate, for respondents No. 1 to 3, 5 and 6. Respondent No. 4, already exparte. Service of respondents No. 7 and 8, already dispensed with, being proforma respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 07.11.05, rendered by the Court of Additional Civil Judge (Senior Division), Sangrur, vide which, it decreed the suit of the plaintiffs, and the judgement and decree dated 19.03.07, rendered by the Court of Additional District Judge, Sangrur, vide which, it dismissed the appeal. RSA No. 1428 of 2007 3 2. The facts, in brief, are that, the plaintiffs, claimed themselves to be the owners in possession of the land, in dispute, to the extent of 1/6 share, which they inherited from Dhan Kaur, being her legal heirs, who died on 25.11.96. It was stated that defendants No. 1 to 4, illegally got mutation No 4465, sanctioned, in their favour, vide the order of the Assistant Collector IInd Grade, on the basis of a forged Will dated 08.12.95. It was further stated that, during her life time, Dhan Kaur, did not execute any Will, in respect of her estate, in favour of defendants No. 1 to 4. It was further stated that the Will, in question, was the result of fraud, which was prepared, just with a view to usurp the land, in dispute. It was further stated that the land, in dispute, was still joint, and had not yet been partitioned. It was further stated that the plaintiffs, being the legal heirs of Dhan Kaur (deceased), are entitled to joint possession to the extent of 1/6 share, in the land, in dispute. The defendants, were many a time, asked to admit the claim of the plaintiffs, over the land, in dispute, but to no avail. Ultimately, a suit for joint possession, declaration, and injunction, was filed. 3. Defendants No. 1 to 4, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable; that the suit was not within limitation; that the plaintiffs, had no locus-standi, to file the suit; that the plaintiffs, had not come to the Court with clean hands; that the plaint, had not been verified, as per the law; and that no cause of action, accrued to the plaintiffs, to file the suit. It was admitted that RSA No. 1428 of 2007 4 Dhan Kaur, was having 1/6 share, in the land, in dispute. It was further admitted that Dhan Kaur, died, on 25.11.96. It was stated that Dhan Kaur, used to reside with the sons of her nephews i.e. defendants No. 1 to 4, at villge Kular Khurd. It was further stated that defendants No. 1 to 4, used to serve her, as her own sons and daughters, refused to take care of her, as a result whereof, she executed a Will, on 08.12.95, in respect of the land, in dispute, in their favour. It was further stated that, on the basis of the said Will, mutation, was got sanctioned, in their favour, on 25.01.97. It was further stated that the plaintiffs, had no concern with the land, in dispute, nor they had any right, in the same. It was further stated that the plaintiffs, never raised any objection regarding the mutation, before the revenue authorities, although they knew, that the same, had been sanctioned, on the basis of the Will dated 08.12.95. It was further stated that, at the relevant time, the quality of the land, was very poor, and it were defendants No. 1 to 4, who improved the same, by spending amount, and putting their labour. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether plaintiffs are owners in possession of 1/6 share in the suit land being heirs of Dhan Kaur? OPP (ii) Whether plaintiffs are entitled to declaration prayed for? OPP (iii) Whether plaintiffs are entitled to joint possession of the suit land? OPP RSA No. 1428 of 2007 5 (iv) Whether plaintiffs are entitled to injunction prayed for? OPP (v) Whether Dhan Kaur executed a valid Will dated 08.12.95, in favour of defendants No. 1 to 4? OPD (vi) Whether suit is not maintainable in the present form? OPD (vii) Whether suit is barred by limitation? OPD (viii) Whether plaintiff has no cause of action and locus standi to file the present suit? OPD (ix) Whether suit is not properly verified? OPD (x) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the defendants/appellants, which was dismissed, by the Court of Additional District Judge, Sangrur, vide judgment and decree dated 19.03.07. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. During the pendency of appeal, an application, under Order 41 Rule 27, read with Section 151 of the Code of Civil Procedure, for production of additional evidence of the Will dated 08.12.95, was filed. It was stated, that the applicants/appellants, examined Didar Singh, RSA No. 1428 of 2007 6 DW4, scribe, and Bhagwan Singh, Namberdar, DW5, an attesting witness. It was further submitted that the applicants/appellants, being poor and rustic villagers, during the trial, could not get produced the Will, inspite of best efforts. It was further stated that, at the time of mutation, the applicants/appellants, could not retain photocopy of the Will. The original Will, was, on the record of mutation. The mutation file, could not be traced, despite best efforts by the revenue authorities. It was further stated that Ran Bihari Lal, Tehsildar (Retd.), DW2, stated that mutation was sanctioned, on the basis of Will. It was further stated that the production and proof of the Will, was essential, for the just decision of the case as the same had been traced now by the revenue authorities. Accordingly, the prayer for producing the additional evidence, referred to above, was made. 10. In reply to the application, filed by the respondents, it was stated that the applicants/appellants, relied upon the Will dated 08.12.95, allegedly executed by Dhan Kaur. The issues, were framed, on 24.12.02. The applicants/appellants, took about one year, to produce the evidence. The suit was decreed on 07.11.05. An appeal, was filed, which was dismissed, on 19.03.07. It was further stated that, though the proceedings of the case, in the Courts, took about six years, the applicants/appellants, did not take pains to apply for the certified copy of the alleged Will. It was further stated that the application, could not be allowed, as that would amount to filling up the lacunae, left in the case, by the applicants/appellants. Accordingly, a prayer, was made, RSA No. 1428 of 2007 7 that the application be dismissed. 11. The Counsel for the applicants/appellants, submitted that the original Will, executed by Dhan Kaur, in favour of the applicants/appellants, was produced, at the time of sanction of mutation, and it was attached with the mutation file. He further submitted that all efforts, were made, for getting produced the original Will, by summoning the record of mutation, but the original Will, was not found traceable. He further submitted that, it was, under these circumstances, that neither the same, nor the certified copy thereof, could be produced, on record. He further submitted that the witnesses, were examined. He further submitted that, now the record of mutation alongwith the original Will, had been traced. He further submitted that, under these circumstances, at the relevant time, the Will, could not be produced. He further submitted that the document, being essential, for the just decision of the case, the application, be allowed. 12. On the other hand, the Counsel for the respondents, submitted that, no efforts for procuring the Will dated 08.12.95, were made, and, as such, the application, was liable to be dismissed. He further submitted that the application had been filed, just with a view, to fill up lacunae, left in the case, and delay the proceedings. 13. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal as also the application, are liable to be accepted, for the reasons to be recorded, hereinafter. Normally, in the Regular RSA No. 1428 of 2007 8 Second Appeal, the Court, is very slow, in allowing such an application. However, when the facts and circumstances of the case, so demand, and sufficient cause, is shown, by a party, for non-production of a particular document, essential for the just decision of the case, in the trial Court, then certainly, the Court, keeping view the ends of justice, is duty bound, to allow such an application. In the instant case, the Will, was produced, at the time of mutation. The mutation, was sanctioned. The original Will, was attached with the mutation proceedings. The applicants/appellants, could only summon the relevant record, from the Revenue Court, through an official of the same. When the official of the Revenue Court, was summoned, alongwith the mutation file, he deposed that, the same, was not traceable. The Will, which was attached with the mutation proceedings, was also not traceable. No copy of the same, was retained, by the applicants/appellants, at the time of producing the original, in the mutation proceedings. Certified copy thereof, could not be obtained, as the original Will, was not traceable, in the Revenue Court. It was, under these circumstances that, at the relevant time, the original Will, could not be got produced. There was, thus, no fault, on the part of the applicants/appellants, in producing the original Will. Now, as submitted by the Counsel for the appellants, the original mutation record, alongwith the Will, has been traced. In these circumstances, in my considered opinion, the additional evidence, sought to be adduced is most essential, for the just decision of the case. Even otherwise, RSA No. 1428 of 2007 9 procedure is, in the ultimate, the hand-maid of justice, meant to advance the ends thereof, than to thwart the same. When the procedural wrangles and the substantial justice, are pitted against each other, then the latter will prevail over the former. In Arjan Singh Vs. Kartak Singla, AIR 1951 (SC), 193, the principle of law, laid down, was to the effect that, Order 41, Rule 27 of the Code of Civil Procedure, is not intended to allow an unsuccessful litigant, to patch up the weak parts of his case, and fill in the lacuna, in the Appellate Court. Under clause I (b) thereof, additional evidence, can be admitted only when the Appellate Court, requires it to enable it to pronounce the judgement or for any other substantial cause. Reception of such evidence should be the necessity of the Court for proper adjudication of the dispute, between the parties. In K. Venkataramiah Vs. Seetharama Reddy, AIR, 1963 (SC), 1526, the principle of law, laid down, was to the effect, that there may well be cases, in which, even though the Court finds that it is able to pronounce judgement, on the state of record, as it is, and so it cannot strictly say that it requires additional evidence, to enable it to pronounce the judgement, but it still considers that, in the interest of justice, something which remains obscure, should be filled up, so that it can pronounce its judgement in a more satisfactory manner. Such a case, will be one for allowing additional evidence for any other substantial cause under Rule 27(1) (b) of the Code of Civil Procedure. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the present case. The application for RSA No. 1428 of 2007 10 additional evidence, is, thus, allowed. 14. Once the application, for additional evidence, has been allowed, the trial Court, is required to record the evidence, in respect of the execution, validity and legality of the Will, set up by the applicants/defendants, and afford an opportunity, to the opposite party, to rebut the same, and, thereafter, decide the case afresh. 15. For the reasons recorded above, the appeal, is accepted. The judgements and decrees of the Courts below, are set aside, and the case, is remanded back to the trial Court. The trial Court, is directed to record the additional evidence, in respect of the Will, in question, produced by the applicants/appellants, and after the closure thereof, afford an opportunity, to the plaintiffs/respondents, to lead evidence, in rebuttal thereto. Thereafter, the trial Court, shall decide the suit afresh, on the basis of the evidence already led, and to be led, after the remand of this case. The applicants/appellants, are, however, burdened with costs of Rs. 10,000/-, the payment whereof, shall be a condition precedent. The parties, are directed to appear in the trial Court, on 23.11.09, at 10.00 AM, sharp, for further proceedings. 20.10.2009 (SHAM SUNDER) Amodh JUDGE