Muhinder Singh vs Narain Singh and others

Shamsher Bahadur, J.—This is a ven ee''s appeal in a pre-emption suit in which a decree in favour of the pre emptor passed by the trial Judge has been affirmed in appeal by the learned Senior Subordinate Judge, Ferozepur.

Narain Singh plain tiff-Respondent brought a suit claiming in the first instance that the orai sale of 24th of January, 1955, of the disputed land measuring 56 kanals and 7 marlas for Rs. 7,000/- by the 6th and 7th Defendants in favour of Defendants Nos. 1 to 5 would not bind his reversionary rights having been made without consideration and legal necessity, and alternatively, possession of the land by pre-emption in case the first relief was not granted. The mutation of the sale was sanctioned on 25th of December, 1958, and the limitation for the preemption suit was claimed to have started from that date. The first five Defendants resisted the suit while the vendors did not contest it. Various pleas were raised against the claim made for a declaration. These are the subject-matter of first four issues. The fifth issue centres round the preferntial right of the Plaintiff to pre-empt. The claim with regard to declaration was not pressed and eventually the decision of the case rested on issues Nos. 6 and 7 which are to this effect:

Whether the vendee Defendants Nos. 1 and 2 have sold the land in dispute to Kapur Singh, if so, when and what is its effect ?

Whether the suit is bad for non-joinder of Defendants ?

Defendants Nos. 1 and 2 in their written statement, pleaded that they had sold their share of land in dispute to one Kapur Singh son of Ujagar Singh without mentioning the particulars of the sale and according to them the suit merited a dismissal because Kapur Singh had not been impleaded a party.

The trial Judge considered the evidence adduced on behalf of the Defendants and was of the opinion that the mere statement of Albel Singh the first Defendant, as D. W. 2, was insufficient to prove that the land had in fact been sold to Kapur Singh for a sum of Rs. 4,000/- before the institution of the suit. No sale-deed was at all placed on the record and no witness was summoned to corroborate what was stated by Albel Singh. In this state of evidence the trial Judge did not consider that there was any merit in the objections raised by the Defendants forming subject-matter of issues Nos. 6 and 7. The suit for possession was accordingly decreed on 8th of October, 1960, in favour of the Plaintiff on payment of Rs. 7,000/-.

Before the appellate Court the sale in favour of Kapur Singh was sought to be proved by adducing additional evidence of the sale-deed. Albel Singh appeared as a witness on 8th of October, 1960, on the day when the judgment was delivered Considering that the sale-deed had been registered on 16th of July, 1960, before Albel Singh actually appeared as a witness, the lower appellate Court did not consider itself entitled to receive the document in additional evidence. It may further be mentioned that though an appeal was filed on 5th of November, 1960, the application under Order 41, Rule 27 was not made till 30th of July, 1961, that is to say more than a year after the registration of the sale-deed The lower appellate Court having rejected the evidence of the sale-deed under Order 41, Rule 27, affirmed the rinding of the trial Judge that the Defendants had failed to prove issues 6 and 7. The appeal has accordingly been dismissed.

In second appeal, it has been urged by Mr. Gandhi that the lower appellate Court should have accepted the additional evidence of the sale-deed. The law relating to this aspect of the case has been repeatedly reiterated by the highest judicial authorities. In the Privy Council case of Parsotim Thakur v. Lal Mohar Thakur ILR 10 Pat 654 , it was laid down that "it is only where an appellate Court ''requires'' it (that is, finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but it must be the Court that requires it. The power cannot be exercised on an application by a party before the appeal is heard." In other words, the requirements is that of the Court upon its appreciation of the evidence as it stands. It has not been found by any of the Courts below that it required or found it needful to admit the sale-deed at the late stage when it was sought to be received in evidence. Indeed, it has not been explained at all why the document was not forthcoming at the time when Albel Singh appeared as a witness, the sale-deed having been registered much earlier. Neither any substantial cause nor the requirement of the Court necessitated the reception of this piece of evidence under Order 41, Rule 27. As observed by their Lordships of the Supreme Court in Arjun Singh alias Puran Vs. Kartar Singh and others, "the legitimate occasion for the application of order 41, Rule 27, is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. The true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced." In the case before their Lordships it was found that the additional evidence which had been admitted should not have been taken into account as its reception was unjustifiable under the provisions of Order 41, Rule 27. If the additional evidence is adduced contrary to the principles laid down in Order 41, Rule 27, it would be an imroper exercise of discretion in the view of the Supreme Court to bring this additional evidence on record. Truly, in effect the object of the Plaintiffs in making an application under Order 41, Rule 27 was to fill in the gap which existed in their case. It has been expressly ruled by their Lordships of the Supreme Court i State of U.P. Vs. Manbodhan Lal Srivastava, that the additional evidence cannot be permitted at the appellate stage to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps.

In the last analysis, the finding of the Courts whether a portion of the land in suit has been sold by the first two Defendants to Kapur Singh is one of the fact and based as it is on evidence adduced by the parties the question is no longer open to any challenge in second appeal.

I am accordingly of the view that there is no merit in this appeal which must fail and is dismissed with costs.