Lal Chand vs Chanan Singh and Others

B. Rai, J.—This Regular Second Appeal arises out of Civil Suit No. 531, dated December 23, 1974.

Brief facts of the case are that respondents sought possession of the shop in dispute through redemption on payment of Rs. 2,000/- alleging that Hazara Singh, their predecessor-in-interest was the owner of the shop. He mortgaged the same with Bant Lal and Jagdish Rai, defendants, for Rs. 2,000/- on July 6, 1956 vide Mortgage Deed, Exhibit P.3. Lal Chand and Manohar Lal were in possession of shop and, as such, they were the main parties, Plaintiffs claim that they are entitled to possession by way of redemption. Hence, the suit was filed.

On notice, the suit was contested. Jagdish Rai defendant No. 2 admitted the factum of the mortgage but denied that the plaintiffs were the heirs of Hazara Singh. He claimed Rs. 1,000/- as costs of repair incurred by him. Lal Chand defendant-appellant admitted the factum of the mortgage. He pleaded that he was in possession of the shop as tenant under Hazara Singh prior to the mortgage in question. Following Issues were framed by the trial Court :

1) Whether defendant No. 3 was a tenant at the time of creation of usufructuary mortgage in his favour ? OPD

2) If issue No. 1 is proved, whether defendant No. 3 is entitled to retain possession of the shop in suit. In case the suit of the plaintiff is decreed, if so, to what effect ? OPD

3) Whether the defendants made any repairs in the shop in dispute. If so to what extent and to what effect ? OPD

4) Whether the plaintiffs are the heirs of Hazara Singh deceased ? OPP

5) Whether this Court has no jurisdiction to try this suit ? OPD

6) Relief.

After appraisal of evidence led by the parties, taking up issues 1, 2 and 5 together, it was concluded that Lal Chand defendant has not been able to prove that he was a tenant under Hazara Singh mortgagor. He is, therefore, not entitled to retain possession after redemption. All these issues were, therefore, decided against Lal Chand defendant. Under Issue No. 3, it was found that no documentary evidence was led by the mortgagees. As such, defendant was held not to be entitled to any amount spent for repairing the shop in dispute. Under Issue No. 4, it was held that plaintiffs are the only legal heirs of Hazara Singh and they had a right to file the suit. Suit of the plaintiff for possession by way of redemption of suit property was decreed against the defendants, with no order as to costs. It was further ordered that the plaintiffs shall deposit Rs. 2,000/- on or before September 27, 1977 otherwise the suit shall stand dismissed with costs and that defendants 1 and 2 shall be entitled to this amount. It was also directed that after the amount is deposited, warrants for actual possession shall follow.

The judgment and decree, dated August 25, 1977 of the trial Court were challenged in appeal by Lal Chand defendant No. 3 before the learned District Judge, Patiala. In appeal, no arguments were addressed on Issues 3 and 4. However findings on Issue 1, 2 and 5 were assailed. The pleas raised on behalf of the appellant did not find favour with the learned first appellate Court. Accordingly, the findings recorded on these issues by the trial Court were affirmed and the appeal was dismissed vide judgment and decree, dated November 15, 1979.

Hence, this Regular Second Appeal at the instance of Lal Chand defendant No. 2.

I have heard the learned counsel for the parties and have carefully gone through the record.

The Mortgage Deed, dated July 6, 1957, Exhibit P3 is on the record. The factum of mortgage was not challenged at any stage. It is also not disputed that plaintiff-respondents are heirs of Hazara Singh mortgagor. The mortgage Deed contains recital that the possession was delivered to the mortgagees. In order to show that the appellant is in possession of the shop in dispute as tenant under Hazara Singh. learned counsel for the appellant referred to receipts Exhibits R7 and R8 contained in the Handbook. These were proved by Tulsi Ram (DW1) Scribe of these receipts. On the basis of receipts Exhibits R7 and R8, it was argued that no doubt receipt Exhibit R7 dated November 12, 1955 is written on the first half of the page of the Handbook, while receipt Exhibit R8 dated November 12, 1955 is written on the second half of the said page. It was submitted by the learned counsel that Tulsi Ram (DW1) had also stated that receipt Exhibit R7 was written on the first half of the page of the Handbook. In receipt Exhibit R7 month of the year was wrongly written. Therefore merely on the ground that receipt Exhibit R7 being of subsequent date having been written on the first half of the page and receipt Exhibit R8 of earlier date on the second half of the page, the claim of the appellant that he is in possession of the shop as tenant under Hazara Singh should not have been ignored. I do not find any force in this contention. The learned counsel could not refute that no plea that month of the year was wrongly written in receipt Exhibit R7 was taken in the written statement nor any such plea was taken before the trial Court or the first appellate Court. Therefore, the appellant cannot be allowed to raise this plea for the; first time in the Regular Second Appeal.

It was next argued that before the first appellate Court, an application under Order XLI, Rule 27 of the Code of Civil Procedure, for leading additional evidence was filed, but that application was not decided by the first appellate Court. Therefore, case be remanded to the first appellate Court to decide the application under Order XLI, Rule 27 of the Code and the appeal afresh. I am of the considered view that in case the appellate Court omits to decide an application under Order XLI, Rule 27 of the Code of Civil Procedure, that implies that the appellate Court did not require any additional evidence for pronouncing the judgment. Rule 27 of Order XLI, Code of Civil Procedure, does not entitle the parties to an appeal to produce additional evidence, whether oral or documentary. The parties can be allowed to lead additional evidence only in the contingencies mentioned in clauses (a) and (aa). The appellate Court may also allow the parties to bring additional evidence on record in the form of oral or documentary evidence if the Court finds itself unable to pronounce the judgment on the basis of the evidence already on record or for any other substantial cause. If a party is allowed to lead such evidence or produce a document, the Court has to record the reasons for its admission. In case the Court finds that the judgment can be pronounced on the evidence already on the record, it is not required to record the reasons for refusal of additional evidence.

No other point has been argued.

For the reasons recorded above, the appeal being without merit is dismissed. No costs.