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Judgment
A.V. Chandrashekara, J—Heard the learned counsel for the appellants. The matter is at the stage of admission. Concurrent findings are called in question before this Court by filing an appeal.
Appellants were the plaintiffs in O.S. No. 168/1997. They had filed a suit for injunction, restraining the defendants from interfering with a Dargah having a tomb of saint. The tomb is stated to be situated at hillock area of Kallur village, Manvi taluk, Raichur District.
According to the plaintiffs, the suit schedule property is a Wakf property and they have been performing Sandal, Urs and Ziarat every year and that defendants were interfering with the performance of Sandal, Urs and Ziarat. According to them, the entire extent of land in Sy.No.674 measures 58.05 acres and this is a Government land. While acquiring the land in Sy.Nos.767/1 and 767/2, the Wakf Authorities had omitted to mention about the existence of Dargah in the hillock in Sy.No.674 and that a corrigendum was issued on 20.11.1998 by the Karnataka State Wakf Board. This corrigendum was issued as the said property had been omitted in the gazette notification issued by the Karnataka Wakf Board in the year 1974.
Defendants No. 6 to 12 are stated to be the powerful men in the locality and they have demolished Dargah. Therefore, a criminal case was registered against them in Crime No. 72/1991 for the offence punishable under Section 295 of IPC.
In spite of several representations given to defendants No. 1 and 2, defendants No. 6 to 12 have not reconstructed the grave of the said Dargah and defendants No. 1 and 2 have not passed any order.
Defendant No. 5 who is stated to be the Muthawalli of the said Dargah has supported the case of the plaintiffs. Defendant No. 6 died during the pendency of the appeal and his LRs. have been brought on record and other defendants have filed detailed written statement, denying all the material averments found in the plaint. According to them, there was no Dargah in the hillock of Sy.No.674 and that there is a temple of Prasanna Maruti. The suit is stated to be not maintainable and perverse one. Defendant No. 2 has also filed written statement stating that spot inspection was conducted by the Assistant Commissioner to restore the disputed place and reconstruction of said Dargah and the request of the plaintiffs to celebrate Urs from 11.11.1996 to 12.11.1996 could not be considered. According to him, there is distance between Bettad Maruti temple and disputed place and baseless allegations have been made against defendant Nos. 1 and 2. Hence, defendant No. 2 had requested the Court to dismiss the suit. Defendant No. 1 had adopted the written statement filed by defendant No. 2.
On the basis of the above pleadings, following issues came to be framed by the trial Court as follows:
"1. Whether suit of the plaintiffs in the present from is maintainable in view of contentions raised in para No. 2 of the W.S. of D.2 and para No. 15(a) of the WS of defts. 6 to 12?
Whether plaintiffs prove that, suit Dargah is built and existing on the hillock situated in Sy.No.674 of Kallur village, tq. Manvi as alleged?
Whether plaintiffs prove that, in view of alleged corrigendum to notification dated 18.02.1974 as per the provisions of Wakf Act the schedule property is deemed to have been a Dargah Hazarath Peerbale Shah Ali as alleged?
Whether defendants 6 to 12 prove that, suit Dargah is a Maruthi Katta as alleged Y& same is situated in the Sy.No.674 of village Kallur, tq. Manvi?
Whether plaintiffs prove that, defendants have illegally demolished the grave (Mazhar) of suit Dargah on 27.06.1991 as alleged?
Whether plaintiffs are entitled to the reliefs sought for?
What order or decree?"
On behalf of the plaintiffs, eight witnesses have been examined and 16 exhibits have been got marked. On behalf of the defendants, six witnesses have been examined and 13 exhibits have been got marked. Ultimately, the learned Judge has held issues No. 1 to 6 in the negative and dismissed the suit.
Against the said judgment and decree, an appeal was filed in terms of Section 96 of CPC in R.A. No. 13/2007, before the First Appellate Court i.e., Additional District Judge at Raichur. This concurrent finding is called in question before this Court. During the pendency of this appeal, few documents have been filed along with request to permit the appellants to produce additional documents in terms of Order 41 Rule 27 read with Section 151 of CPC.
One has to make out an exceptional care for producing additional evidence in the appellate Court more especially in the Second Appellate Court. No proper explanation or good grounds are made out to allow the application filed under Order 41 Rule 27 read with Section 151 of CPC. Accordingly the application is liable to be dismissed.
What is argued before this Court by the learned counsel for the appellants is that the defendants have suffered negative finding on issue No. 4 and this has not been considered by the First Appellate Court. It is also argued that Ex. P4 the proceedings of the Assistant Commissioner, Raichur is not at all considered. Ex. P4 does not specifically state about the existence of either Temple or Dargah. It cannot be considered as document, evidencing the existence of either Dargah or Temple in the disputed place. It only speaks about the request for permission to perform Urs in the disputed place.
Though, suit had been filed against defendant No. 3 the Chief Executive Officer, Karnataka Board of Wakf and it was get dismissed as not pressed vide order dated 03.03.1998. If plaintiffs had taken steps to secure the presence of defendant No. 3, the Court could have known the stand of Wakf Board about the disputed place. As rightly pointed out by the trial Court as well as First Appellate Court, Ex. P4 corrigendum was issued by the Karnataka Wakf Board during the pendency of the suit. Even otherwise nothing came in the way of plaintiffs to have examined one of the responsible officers of Wakf Board in support of their case. Admittedly, the suit is for injunction and when the very title set up by the plaintiffs was denied by the defendants, burden on the plaintiffs atleast to get the suit amended for the relief of declaration of title and no such attempt was made. As already discussed, no attempt was made to secure the presence of defendant No. 3
Initial burden cast upon the plaintiffs has not been effectively discharged as per the mandate of Sections 101 and 102 of Evidence Act and therefore onus had not shifted on the other side. In the light of the same, no good grounds are made out to interfere with impugned judgment passed trial Court as well as the First Appellate Court. Both the Courts have adopted right approach to the real state of affairs. Even otherwise no grounds are made out to consider the application for producing additional documents filed by the appellants/plaintiffs in I.A. 1/2012 at this point of time. Looking to the nature of the suit filed by the plaintiffs and inability to secure the presence of defendant No. 3 and in the light of not examining one of the responsible officers of Karnataka Wakf Board in support of their case, no interference is called for and the appeal is liable to be dismissed. No substantial question of law arises to admit the appeal.
Accordingly, appeal is dismissed as unfit for admission.
I.A. 1/2012 filed under Order 41 Rule 27 of CPC is also dismissed.
Parties to bear their own cost.