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Judgment
Honourable Mr. Justice Shailesh Kumar Sinha
The appeal is directed against the judgement and decree dated 21st September, 1982 passed by 5th Additional Subordinate Judge, Siwan in Title Suit No. 54 of 1976/10 of 1982, whereby the plaintiff''s suit for partition is dismissed, as such, the appellant has preferred the present appeal. Shortly stated facts are that the plaintiff filed the suit for partition and prayed for declaration of 3 Ana 10 Karat share in the landed property described in schedule I & II of the plaint and the land mentioned in schedule III with a house in Mouza Hasanpura, P.S.- Amdah, District- Siwan. Plaintiff''s case is that there was a partition between his father, Monawar Hussain and his brother Manzoor Imam. The property possessed by Monawar Hussain after partition with his brother is a subject matter of partition amongst his sons and daughters in the partition suit in question. It is the case of the plaintiff that after the death of Monawar Hussain the properties remained in joint possession of his heirs having unity of title and possession, and as such, on demand the properties mentioned in schedules I & II of the plaint is liable to be partitioned allotting specific share to the plaintiff as claimed in the suit. On the other hand, the contesting defendants resisted the claim for partition on the ground that the properties mentioned in schedules I & II of the plaint could not be the subject matter of partition since Monawar Hussain had already made an oral gift in the year 1928 in favour of Kadir, one of his sons, in respect to all his properties which included the properties mentioned in schedules I & II of the plaint. Further case of the defendants is that after the oral gift all the relevant documents with respect to the properties of Monawar Hussain were delivered to his son Kadir who dealth with the properties by way of executing registered sale deeds and also settling the lands. The name of Md. Kadir was mutated in the revenue records of the State. Consequently, rent receipts and chowkidari receipts were being issued in his favour. The family was maintained by Md. Kadir who also got his sisters married. Further case of the defendants is that Monawar Hussain had mortgaged certain lands which were redeemed by Kadir. In other words, the case of the defendants is that there was an oral gift by Monawar Hussain which was acted upon and dealt with by Kadir since the time of oral gift and he continued to do so even after filing of the suit. Defendants have also raised the question of maintainability of the suit in absence of the necessary parties and also that in sum and substance the plaintiff challenges the gift, and as such, required to pay the ad voleram court fee keeping into consideration the market value of the property. The plaintiff as also the defendants in support of their respective cases adduced oral as well as documentary evidence.
The trial Court upon considering the evidence meticulously accepted the defendants'' case of oral gift in light of the oral evidence as also large number of documentary evidence brought on record on behalf of the defendants. The trial Court further held to the effect that the suit in question in fact challenges the oral gift of the year 1928 and further found that the suit was bad in absence of the necessary parties as also for want of ad voleram court fee on the value of the suit property. The suit was accordingly dismissed by the judgement and decree under appeal.
Mr. Abbas Haider, learned counsel appearing for the plaintiff-appellant herein relying upon the evidence of the plaintiff''s witnesses i.e. P.Ws 3 to 6 as also the statement of one Farzand Ali (Exhibit-9/1) submits that there was unity of title and possession over the property in question between the legal heirs of Monawar Hussain. Learned counsel further submits that the claim of oral gift by the contesting defendants was disputed by other sons and daughters of Monawar Hussain who have accordingly deposed in their oral evidence. It was also submitted that the claim of oral gift could not be acceptable as evident from the fact that the sale deed dated 04.06.1932 was executed by Monawar Hussain vide Exhibit-C-1/5 and had there been any oral gift as claimed by the defendants there could have no occasion for him to execute the sale deed after oral gift. However, the other documents brought on record by way of evidence in support of oral gift could not be disputed. Learned counsel accordingly submits that the judgement and decree under appeal deserves to be set aside and the suit be decreed. Learned counsel further submits that notwithstanding the evidence available on the record, it is in the interest of justice that the plaintiff-appellant herein be permitted to bring on record additional evidence as permitted under Order 41 Rule 27 of the CPC as prayed for in its application dated 21st March, 1986 annexing the documents as mentioned in Annexure-1 series that the same be taken as additional evidence since those documents are very important to show that the mortgages in question were not redeemed by the defendants as claimed.
Mr. Sushil Kumar Mazumdar, learned Senior Counsel appearing for the respondents (contesting defendants) submits that the defendants have adequately brought on record the oral evidence on its behalf to substantiate the claim of oral gift. Notwithstanding the oral evidence, large number of documentary evidences i.e. the rent receipts (Exhibit-A series) issued by the State in respect of the suit land in favour of Kadir, the chowkidari receipt (Exhibit-B/1) issued in favour of Kadir, good number of sale deeds (Exhibit-C series) executed by Kadir in favour of different persons as also the sale deed executed by his wife Mausama Begum besides large number of revenue challans (Exhibit-J series) were brought on record to show that Kadir was the owner of the suit property. Learned counsel submits that oral evidence as also large number of documentary evidence amply supports the case of the defendants that Monawar Hussain gifted all his property and after the gift those were dealt with by Kadir and his family. It was further contended that the trial Court thoroughly considered the evidence of both the sides in its correct perspective and accepted the case of the defendants. As regards the sale deed dated 04.06.1932 (Exhibit C-1/5), it was submitted that the said document along with other documents are to show that Monawar Hussain after oral gift handed over all the documents relating to the property to Kadir. Moreover, the solitary deed of 1932 cannot ignore the oral gift in face of large number of documents in support of the gift beside oral evidence. As regard the prayer of the appellant for allowing the additional evidence in order to show that the mortgages were not redeemed by Kadir. It is submitted that no additional evidence can be allowed in order to patch-up the lacuna in evidence of the concerned party. The appellant was free to bring any document on record. Admittedly, the documents in question were available with the appellant. Reliance is placed on a decision of the Apex Court in the case of The State of Gujarat and Another Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs., . It was accordingly submitted that the application of the plaintiff-appellant for allowing additional evidence be rejected and the appeal being devoid of any merit deserves to be dismissed.
Upon considering the rival submissions of the parties vis-a-vis their respective pleadings and the evidence; oral and documentary, it would appear that the real bone of contention is the oral gift by Monawar Hussain in favour of his son Kadir in the year 1928. The plaintiff filed the suit for partition in respect of the properties of Monawar Hussain between his legal heirs claiming unity of title and possession. The contesting defendants, on the other hand, claimed exclusive right and title in respect of the suit property on basis of the oral gift. On perusal of the plaint as filed by the plaintiff, it appears that there is no pleading in any manner with respect to the oral gift. The contesting defendants besides taking objection with respect to the maintainability of the suit on various counts specifically pleaded claiming the oral gift by Monawar Hussain in the year 1928 with respect to all his properties, in paragraphs 9, 10 & 16 of the written statement. The plaintiff-appellant herein as also the defendant nos. 7 to 11 (contesting defendants) adduced their respective evidences. From the side of the plaintiff, the witnesses deposed that there is unity of title and possession, however, none of the plaintiff witnesses denied the fact of oral gift except the plaintiff himself. At the same time, no document has been brought on record of whatsoever nature to suggest that there was unity of title and possession. On the contrary, the contesting defendants besides supporting the oral gift through the oral evidence brought on record a large number of documents which were elaborately discussed even though plaintiff did not challenge the gift in its pleading inasmuch as from the statement of Farzand Ali (Exhibit-9-1) the fact of gift finds support. On perusal and appreciation of the oral as well as the documentary evidence brought on record, I agree with the findings of the Court below that the plaintiff could not substantiate on basis of the evidence adduced on its behalf that there was unity of title and possession and in face of large number of documents brought on record by way of documentary evidence on behalf of the defendant besides the oral evidence, the claim that Monawar Hussain had gifted all his property by oral gift which was acted upon by dealing with the property by executing the sale deeds and also settlement, the claim of oral gift cannot be disbelieved as such I am in complete agreement with the findings and reasons assigned by the trail Court in dismissing the suit. As regards the prayer for allowing additional evidence by bringing on record the copy of the mortgaged deeds as annexed with the application filed by the appellant, I do not find any justification in law to allow the prayer since the appellant could not establish that even after exercise of due diligence the documents sought to be adduced as an additional evidence was not within his knowledge or the same could not have been in his knowledge even after exercise of due diligence at the material time. The additional evidence cannot be allowed to fill up the lacuna as held in the aforesaid decision of the Apex Court. The law is well settled that parties to an appeal shall not be entitled to adduce additional evidence in the appellate Court except when a case is made out for the same in terms of the provisions of Order 41 Rule 27 (1)(a) or (aa) of the CPC and as noticed above, the appellant could not establish the same as required as per law. Moreover, in this case evidences on the record are sufficient to pronounce the judgement in the appeal, and as such, I do not find any valid reason to allow the prayer. The prayer for allowing additional evidence is thus rejected. For the reasons and discussions made above, I do not find any merit in this appeal. The same is accordingly dismissed. No costs.