R. S. A. No. 2076 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2076 of 2008 (O&M) Date of Decision : January 14, 2010 Jaspal Singh .... Appellant Vs. Nirmal Singh alias Gurmail Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. M. L. Sharma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiff, who has remained unsuccessful in both the courts below. Plaintiff filed suit alleging that his father Mehar Singh was owner of the suit land, which was ancestral property in the hands of Mehar Singh having been inherited from his own father Maan Singh. From the marriage of Mehar Singh with Nasib Kaur, plaintiff and defendants no.5 and 6 were born. After death of Nasib Kaur, Mehar Singh performed second marriage with Pritam Kaur – defendant no.7. Out of the said wedlock, defendants no.1 to 4 were born. The plaintiff has alleged that the plaintiff and defendants no.1 to 3 were cultivating the suit land along with their father Mehar Singh during his life time. After the death of Mehar Singh, the plaintiff has become owner in possession of half share of the suit land. R. S. A. No. 2076 of 2008 (O&M) 2 However, the plaintiff learnt in October 1998 that defendants no.1 to 3, by playing fraud, obtained a collusive decree in their favour against their father Mehar Singh, vide judgment and decree dated 26.05.1988, passed by learned Senior Sub Judge, Ambala. The said decree has been challenged in the suit alleging that Mehar Singh could not have suffered the said decree on account of ancestral nature of the suit land. Defendants no.5 and 6, who are real sisters of the plaintiff, admitted the claim of the plaintiff. Defendants no.1 to 3 contested the suit and controverted the plaint allegations. It was denied that the suit land was ancestral in the hands of Mehar Singh. It was pleaded that the suit land was self-acquired property of Mehar Singh and he voluntarily suffered judgment and decree dated 26.05.1988, in view of family settlement between defendants no.1 to 3 and said Mehar Singh, who was their father. It was also pleaded that Mehar Singh separated the plaintiff by giving him due share in his property. Mehar Singh also executed valid Will dated 31.12.1981 in favour of defendants no.1 to 3. Learned Civil Judge (Junior Division), Ambala City, vide judgment and decree dated 10.01.2005, dismissed the suit of the plaintiff-appellant. First appeal preferred by the plaintiff also stands dismissed by learned Additional District Judge (Fast Track Court), Ambala, vide judgment and decree dated 14.01.2008. Feeling still aggrieved, the plaintiff has filed the instant second appeal. During pendency of appeal, application bearing C. M. No. 1524-C of 2009 under Section 151 of the Code of Civil Procedure (in short – CPC) for placing on record five jamabandis for the years 1917-18, 1935- 36, 1939-40, 1943-44 and 1955-56 as Annexures A-6 to A-10 was moved by the appellant. The appellant also moved another application bearing C. M. No.7788-C of 2009 for additional evidence under Order 41 Rule 27 read with Section 151 CPC for producing the same jamabandis as additional evidence as Annexures A-11 to A-15. I have heard learned counsel for the appellant and perused the R. S. A. No. 2076 of 2008 (O&M) 3 case file. The plaintiff-appellant placed on record inheritance mutation of the land of Maan Singh in favour of his son Mehar Singh. However, the plaintiff-appellant failed to connect the said land mentioned in the mutation inherited by Mehar Singh from his father with the suit land to prove ancestral nature of the suit land. Learned counsel for the appellant concedes that from the evidence on record, ancestral nature of the suit land is not proved. Learned counsel for the appellant does not press C. M. No. 1524-C of 2009. The same is accordingly dismissed as not pressed. Learned counsel for the appellant, however, vehemently contended that the appellant be allowed to lead additional evidence vide C. M. No.7788-C of 2009 to produce jamabandis Annexures A-11 to A-15. It was argued that production of said documents is essential for just decision of the case. I have carefully considered the contention. No ground for permitting the appellant to produce the proposed additional evidence at the stage of second appeal is made out. In fact, no ground has been pleaded in the application as to why these documents were not produced in evidence in the trial court at the appropriate stage. Case of the appellant is admittedly not covered by clauses (a) and (aa) of Order 41 Rule 27 (1) CPC. However, learned counsel for the appellant referred to clause (b) of Order 41 Rule 27 CPC. Under the said clause, additional evidence may be allowed in appeal, if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause. In the instant case, this Court does not require the proposed additional evidence to enable it to pronounce the judgment. The facts are very clear on record. The plaintiff-appellant has miserably failed to prove the suit land to be ancestral in nature. Consequently, the plaintiff- appellant cannot be permitted to fill up lacuna in his case at the stage of R. S. A. No. 2076 of 2008 (O&M) 4 second appeal. As already noticed herein above, no ground whatsoever has been made out by the appellant for production of additional evidence at the stage of second appeal, not it has been explained as to why these documents were not produced in evidence in the trial court at appropriate stage. Accordingly, C. M. No.7788-C of 2009 is dismissed being without merit. For the reasons recorded in the preceding paragraph, C. M. No.6276-C of 2008, filed along with the appeal under Order 41 Rule 27 read with Section 151 CPC for producing additional evidence i.e. copies of jamabandis for the years 1963-64, 1966-67, 1971-72, 1976-77 and 1986-87, is also dismissed. There is concurrent finding of fact by both the courts below that the suit land is not proved to be ancestral in nature and the said finding is based on proper appreciation of evidence. In fact, as per documents placed on record, the suit land is not proved to be ancestral in nature because the suit land has not been linked with the land which was inherited by Mehar Singh from his own father Maan Singh. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. January 14, 2010 ( L. N. MITTAL ) monika JUDGE