Case: Arjan Singh Alias Puran Vs. Kartar Singh And Others

appellate Ct. that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well-known case ofKessowji v. G. I. P. Railway,34 I. A. 115 : (31 Bom. 381(P. C.)),"the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence and the appln. is made to import it;"and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan,58 I. A 254 : (A. I. R. (18) 1931 P. C. 143). The true test, therefore, is whether the appellate Ct. is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.8. In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is dated 17-3-1942.The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.9. Even conceding that the reception of additional evidence was proper, the Dist. J. has failed to consider the inherent infirmities of the entries in the settlement registers relied on for the applt. and the several criticisms that could justify be levelled against them for showing that they were spurious. He took the entries to be genuine. The only reason assigned by the learned Judge for treating the entries to be genuine and not forged appears to he that the records had all along remained in proper custody. As against this rather perfunctory remark, we must set the following observations of the learned Judges of the H. C. :"Even a superficial observation of the original documents leads one irresistibly to the conclusion that this entry was a subsequent interpolation. Innaqsha kama beshithere was already a remark in that column and the remark relied upon which has very awkwardly been inserted there is with a different pen and in a different ink. It is even impossible to read it clearly. Further, although there are 2 or 3 other places where the names of Jodha and Jai Singh appear, no such remark has been made against them. It may also be observed that though a corresponding remark appears in the column of sharah lagan in muntakhib asami-warwhere it is evidently out of place in the copy retained in the Tahsil Office, there is no such remark in the copy which is preserved at the Sadar Office. Even otherwise it does not stand to reason why a remark to this effect should have been made in this column. The way in which these entries were said to have been traced also throws a lot of suspicion on their genuineness."10. We find ourselves in entire agreement with these observations of the learned Judges. It is no doubt true that a finding of fact, however erroneous, cannot be challenged in a second appeal, but a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness, cannot be accepted as a finding that is conclusive in second appeal11. If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.12. The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these terms :"Notwithstanding anything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom."13.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R. 27, Civil P. C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent.In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is datedappeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these termsanything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom."