Ramdulare and Another vs Motichand and Others

T.P. Sharma, J.—This second appeal is directed against the judgment & decree dated 5-3-98 passed by the 7th Additional District Judge, Bilaspur in Civil Appeal No 49-A/95 dismissing the appeal filed against the judgment & decree dated 18-7-95 passed by the 4th Civil Judge Class-1, Bilaspur in Civil Suit No. 73-A/92, whereby learned 4th Civil Judge Class-I has dismissed the suit for recovery of rent and permanent injunction to the effect that the tenant shall be directed to pay the part of rent to the Plaintiffs and not to pay to Defendant No. 1.

I have heard learned Counsel for the parties on merits as also on the application for admitting additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short ''the Code''), perused the impugned judgment & decree and record of the Courts below.

Following substantial questions of law have been formulated for deciding the present appeal:

(i) Whether rejection of application under Order 26 Rule 9 of the CPC has materially affected the decision?

(ii) Whether the appeal Court failed to exercise jurisdiction in refusing to admit additional evidence the demarcation report by revenue court, a subsequent event which materially affected the decision?

Brief facts giving rise to filing of this appeal are that vide the judgment & decree dated 24-12-91 passed by the 4th Civil Judge Class-I, Bilaspur in Civil Suit No. 161 A/90, half share of the Plaintiffs was declared along with Respondent No. 1. Respondents No. 2 to 9 are tenants and used to pay rent to Respondent No. 1. The present Appellants/Plaintiffs demanded rent of their part to the Respondents but they failed to pay rent on which civil suit for permanent injunction for paying half rent to the Plaintiffs and restraining Respondents No. 2 to 9 for paying portion of rent to Respondent No. 1 and for recovery of rent was filed. The Respondents have contested the suit and specifically alleged that the present Plaintiffs/Appellants are not co-owners of the property/shops situated upon Khasra Nos. 3604/6-7 & 3611/1. The aforesaid land was purchased by Respondent No. 1 and Respondent No. 1 has constructed shops. Respondent No. 1 is owner & landlord of the shops and is receiving rent of the aforesaid shops as landlord. The present Appellants are not landlords. On the basis of averments of the parties, issues were framed and after affording opportunity of hearing to the parties the suit was dismissed on the ground that the present Appellants/Plaintiffs are not co-owners of the property on the basis of the judgment passed by the civil Court in Civil Suit No. 161 A/90 and they are not entitled for any rent. During the pendency of civil suit after closing of evidence of the parties, the present Appellants/Plaintiffs had filed an application for appointment of Commissioner for local inspection and the same was dismissed vide order dated 25-3-95. The present Appellants had not assailed the order dated 25-3-95 before any competent forum. After passing of judgment & decree by the trial Court and during the pendency of first appeal, the Appellants also applied for taking additional evidence under Order 41 Rule 27 of the Code, the same was dismissed by the lower appellate and the appeal was also dismissed.

During the course of arguments, learned Counsel for the Appellants have frankly admitted that no decree has been passed in Civil Suit No. 161 A/90 in favour of the Appellants in which the Appellants have been declared as owners of the property.

Learned Counsel for the Appellants argued that both the parties have led evidence and tried to prove that the shops in question are situated upon the land jointly purchased by the Appellants & Respondent No. 1, and not in the plot purchased only by Respondent No. 1 i.e. upon Khasra No. 3604/2 and piece of Khasra No. 3611. In case of boundary dispute, issuance of Commission for local inspection is the only remedy and the Plaintiffs/Appellants have filed an application under Order 26 Rule 9 of the Code for issuance of Commission before the trial Court which was erroneously dismissed. The Plaintiffs/Appellants have also filed demarcation report before the lower appellate Court as additional evidence, but the Court has declined to accept the additional evidence and the Court below has thereby committed illegality. In absence of any demarcation report or local inspection by appointing Commission it is difficult to decide that the disputed property/shops are constructed upon whose land. Learned Counsel further argued that the case be remitted back for local inspection by the Commissioner. He also argued that the present Appellants have not specifically pleaded and described the property, but both the parties have led evidence and were having full knowledge of the dispute, therefore, any lacuna in pleading will not affect the merits of the case. Learned Counsel relied upon the order dated 27-3-98 passed in Civil Revision No. 2056/95 decided between the present parties in which the High Court of Madhya Pradesh has directed for appointment of Commissioner for local inspection.

Learned Counsel for the Appellants also argued on the application for taking additional evidence under Order 41 Rule 27 of the Code and submits that to decide the real controversy between the parties, copy of demarcation report and other copies of revenue records should be admitted in evidence.

On the other hand, learned Counsel for the Respondents vehemently opposed the second appeal and argued that the two substantial questions of law framed for the decision of this second appeal are mainly based on the necessity of issuance of Commission for local inspection and on the propriety for refusing to admit additional evidence which was substantially the subject matter of issuance of the alleged Commission which is not necessary for determination of the second appeal. Virtually, no substantial question of law is involved in the present second appeal and it may be disposed of in terms of Sub-section (5) of Section. 100 of the Code. Learned Counsel further submits that the allegation of the plaint clearly reveals that this is a simple suit for recovery of part of arrears of rent against Respondents No. 2 to 9 which have not been earlier paid to the Appellants. The plaint allegation does not reveal any boundary dispute, dispute relating to any adjoining property or the case of disputed identification of the property. Para 1 of the plaint clearly shows that the Appellants/Plaintiffs have been declared co-owners of the property by the civil Court in Civil Suit No. 161 A/90 vide judgment & decree dated 24-12-91. Respondent No. 1 herein/Defendant No. 1 has specifically pleaded in his written statement that he is owner of the shops constructed by him over the land which he has purchased independently and the alleged shops have not been constructed or situated over the land purchased by the present Appellants & Respondent No. 1 jointly. This is also not the case of construction of shops by both the parties mistakenly upon the land of Respondent No. 1 or upon the land of the Appellants & Respondent No. 1, therefore, there was no dispute relating to identity of plot or boundary dispute, as such, no local inspection by the Commissioner was necessary and the Court below has rightly rejected the application maliciously filed by the Appellants after closing of evidence of the parties. Learned Counsel for the Respondents also argued that after the dismissal of suit by the judgment & decree of the trial Court; the present Appellants preferred an appeal before the lower appellate Court on 30-8-95 and after lapse of two years they have filed an application for adducing additional evidence under Order 41 Rule 27 of the Code in which it has been mentioned by the Appellants that at their instance the land was demarcated on 30-3-97 after about 1 Vi years of their filing of the first appeal without any permission, intimation or knowledge of the lower appellate Court which the lower appellate Court has rightly rejected. If there was boundary dispute or dispute of identity of land then, same ground or facts were in existence at the time of filing of civil suit and the Appellants ought to have applied before the revenue Court for demarcation of the land before filing of the suit or during pendency of the suit. Just after filing of defence of the Defendants this alleged document in the form of evidence is not the evidence of subsequent event, but such ground for demarcation was available to the parties at the time of filing of civil suit. This is not the case where the trial Court has refused additional evidence or same was not within the knowledge of the Appellants or that this Court requires the document to enable for pronouncing the judgment. In absence of the aforesaid three conditions available under Rule 27 of Order 41 of the Code, additional evidence cannot be taken at the appellate stage. Learned Counsel further argued that the Plaintiffs were under obligation under Order 7 Rule 3 of the Code to give description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. But the Plaintiffs/Appellants have utterly failed to specify the identity of the property even they have not bothered to mention Khasra number, plot number or survey number of the land or area. Even according to the pleadings of the parties such description was not required because the suit was only for recovery of rent. Virtually, the suit was a B Class suit, not for declaration of any title or interest over the property. In the circumstances, neither issuance of Commission for local inspection nor any additional evidence was available or was necessary to determine the real controversy between the parties. The Courts below have rightly rejected and declined to accept such contentions and claim of the Appellants.

Learned Counsel for the Respondents contended that again before this Court the Appellants have filed an application under Order 41 Rule 27 of the Code for taking additional evidence of one order of the High Court of Madhya Pradesh passed in Civil Revision No. 2056/1995, copy of demarcation report dated 8-1-99 & copy of Khasra entries of the years 1983 to 1988 relating to Respondent No. 1. This appeal has been preferred against the appellate judgment & decree dated 5-3-98 which reveals that after the decision of first appeal again the land was demarcated that too during the pendency of this appeal without any consent, Commission, direction or knowledge of this Court. The alleged Khasra entries related to the years 1983 to 1988 that too of Respondent No. 1 herein were readily available in the year 1988 even before filing of suit, but the Appellants have not filed these documents before the trial Court or the first appellate Court. There was no reason to accept the documents in the form of additional evidence at the second appellate stage. The order passed in the civil revision may be considered as judgment or order of the High Court. There is no property or ground to permit the Appellants or admit additional evidence in second appeal. Learned Counsel also argued that parties are required to lead evidence relating to their pleadings and the Court cannot decide the case beyond the pleadings of the parties.

Learned Counsel for the Respondents placed reliance in the matter of Reserve Bank of India and Another Vs. Ramkrishna Govind Morey, in which it has been held by the Apex Court that "whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference". Learned Counsel further placed reliance in the matter of Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 in which the Apex Court has held that at the time of admitting additional evidence in appeal, the Court was required to examine that whether Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Learned Counsel also placed reliance in the matter of State of U.P. Vs. Manbodhan Lal Srivastava, in which the Apex Court has held that additional evidence at the stage of appeal should not be permitted in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage. Learned Counsel further relied upon the case of Mahesh Prasad Vs. Nathulal and Others, in which this Court has held that obtaining a decree of eviction with respect to another house is not a subsequent event which disables the landlord from seeking eviction. Learned Counsel also relied upon the matter of State of Gujarat and Anr. v. Mahendrakumar Parshottambhai Desai (D) by L.Rs. AIR 2006 SCW 2169 in which it has been held by the Apex Court that additional evidence cannot be permitted to fill up the lacunae. Learned Counsel further placed reliance in the matter of K.R. Mohan Reddy v. Net Work Inc. Rep. Tr. M.D. AIR 2006 SCW 7597 in which the Apex Court has held that for permitting additional evidence the Court must satisfy mat the ground for such additional evidence is within the conditions enumerated under Rule 27(1)(a) & (aa) of Order 41 of the Code.

Learned Counsel for the Respondents also relied upon the case of Municipal Council Mandsaur v. Dargah Hakkashah 1985 MPWN 372 in which it has been held by the High Court of Madhya Pradesh that "commission for spot inspection should be applied at earliest stage of the suit after adducing all evidence by the parties during trial appointment becomes unnecessary". Learned Counsel further placed reliance in the matter of Union of India and Anr. v. Kripal Industries AIR 1998 Rajasthan 224 in which the Rajasthan High Court has held that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence where it can get evidence itself. Learned Counsel relied upon the case of Geeta Mandir Trust v. Ramchandra 1988 11 MPWN 203 in which it has been held by the High Court of Madhya Pradesh that object of issuance of commission is not to remove the defect.

Learned Counsel for the Respondents further placed reliance in the matter of Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, in which it has been held by the Apex Court that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the Court was not entitled to grant the relief not asked for. Learned Counsel also placed reliance in the matter of Hari Chand alias Harish Chandra Vs. Daulat Ram, in which the Apex Court has held that if the Plaintiff singularly failed to prove his case as pleaded in the plaint, the suit was liable to be dismissed. Learned Counsel also placed reliance in the matter of Gulabrao Balwantrao Shinde and Others Vs. Chhabubai Balwantrao Shinde and Others, in which the Apex Court has held that "Court cannot make out a new case not pleaded". The Apex Court further held that in case of suit for partition and half share in property, the Court cannot declare owners of entire property.

Learned Counsel for the Respondents further placed reliance in the matters of Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, & Mahavir Singh and Ors. v. Naresh Chandra and Anr. AIR 2001 SC 134 in which the Apex Court has held that additional Evidence is permissible only, if conditions and limitations prescribed under Order 41 Rule 27 of the Code exist.

In order to appreciate the contentions of the parties, I have examined oral & documentary evidence adduced on behalf of the parties and their pleadings.

Originally the suit was filed for recovery of rent and for injunction to prohibit Respondents No. 2 to 9 to pay rent to Respondent No. 1, and for direction to pay rent to the Plaintiffs. Para 1 of the plaint specifically pleads that the present Appellants/Plaintiffs are owners of the property along with Respondent No. 1 on the basis of judgment & decree dated 24-12-91 passed by the 4th Civil Judge Class-I, Bilaspur in Civil Suit No. 161 A/90, but there is no such judgment & decree. Both the parties have frankly admitted that no such decree has been passed by the civil Court declaring the Plaintiffs & Respondent No. 1 as co-owners of the suit property. Apart from this description, the Plaintiffs have pleaded that the suit property & shops were situated at Ratanpur, Near Bus Stand, in front of Ganesh Talkies, but they have not specified settlement number or survey number of the land, even numbers of the shops sufficient to identify the property. Per contra, Respondent No. 1 has specifically pleaded that the shops which were given on rent to Respondents No. 2 to 9 were constructed by him and the said shops are situated upon the land purchased by him bearing Khasra Nos. 3604/2 & 3611/1 vide sale deed dated 4-7-59 and not upon the land purchased jointly by the Plaintiffs & the Defendants. Respondent No. 1 has specifically pleaded that he has constructed the shops, however, there is no pleading in the plaint that the Plaintiffs & Defendant No. 1 have constructed the shops jointly. The Plaintiffs were under obligation to give description of the property in terms of Rule 3 of Order 7 of the Code which reads as follows:

Where the subject-matter of the suit is immovable property.-- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

After closing of evidence of both the parties, the Plaintiffs have filed an application for local inspection by appointment of Commissioner before the trial Court which was dismissed. Although doctrine of merger of interim orders in final order is applicable in the present suit, but the order dated 25-3-95 whereby the trial Court has dismissed the application for appointment of Commissioner, has not been independently challenged by the Appellants before any forum.

After the judgment & decree passed by the trial Court and during the pendency of appeal, the Appellants/Plaintiffs have filed some applications before the revenue authorities and they have demarcated the property, but the Appellants/Plaintiffs have not intimated the lower appellate Court or have not filed application for permission or suitable direction for such demarcation. Although there is no legal requirement to intimate or obtain any consent of Commission from the appellate Court for demarcation of land/ property during the pendency of appeal, but judicial discipline demands that in case of determination of identity of the property if any assistance is required, it must be at least within the knowledge of the Court before whom the dispute is pending. After the judgment & decree passed by the appellate Court and during the pendency of second appeal, the land was again demarcated at the instance of the Appellants, but the Appellants have not even intimated to the second appellate Court for such demarcation and only after the alleged demarcation, they have filed application for taking additional evidence that too after lapse often years of filing of the second appeal and after nine years of the alleged demarcation.

According to the pleadings of the parties, there was no dispute of identity of immovable property. Both the parties have lead oral & documentary evidence. The Appellants/Plaintiffs & Respondent No. 1 are cousins.

Appellant No. 2/Plaintiff Shiv Dulare Jaiswal has deposed that the Plaintiffs & Respondent No. 1 are owners of the shops situated in the premises of Ganesh Talkies. He has deposed in paras 8 & 11 of his evidence that he has contributed money for construction of shops, but it has not been pleaded by the Plaintiffs. He has specifically admitted in para 8 of his evidence that after 1978, Respondent No. 1 has stopped paying rent of the shops. He has also admitted in para 11 of his evidence that he has not objected at the time of construction of shops. He has specifically admitted in para 11 that the Plaintiffs are not owners of the property sold by Kalika Prasad to Respondent No. 1. His witness Narendra Nath Sharma (PW-2) has deposed in his evidence that Kalika Prasad has sold some land. In his cross-examination, Narendra Nath Sharma (PW-2) has admitted in para 5 of his evidence that the shops were constructed by Motichandra (Respondent No. 1) and he is receiving rent. Another witness Shiv Dulare Verma (PW-3) has deposed in his evidence that previously he has recovered the rent of 12 shops. He has admitted in para 2 of his evidence that he has recovered the rent till 1973 and he was not present when the new shops were constructed. Respondent No. 1 has also examined himself and has deposed that he has constructed 12 shops over his land purchased by him. He has specifically deposed that he has constructed the shops from his money.

The scope of admitting additional evidence is limited. The provisions of Order 41 Rule 27 of the Code read as follows:

Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

For the purpose of admitting additional evidence, the parties are required to show that the Court below has refused to admit evidence which ought to have been admitted or to establish that notwithstanding the exercise of due diligence, such evidence was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. As regards the question of demarcation, if it was necessary for the party, then it was available at the time of filing of the suit. The Plaintiffs themselves have not applied for demarcation before filing of the suit, even they have not pleaded specifically the identity of the property in their pleadings/plaint. They have also not amended the plaint to specify the identity of the property.

The present suit was filed on 16-4-92 after 14 years of the alleged denial of payment of rent by the Respondent. The Plaintiffs have not filed any document to show that the shops were constructed over the joint property or that they were having the joint property. Even after the alleged denial of payment of rent in the year 1978, the Appellants/Plaintiffs had not filed any suit within reasonable time and they have filed the present suit after 14 years of the said denial that too for recovery of rent. In this case, the Appellants/Plaintiffs have not adduced any evidence to the effect that they have constructed the shops and the Plaintiffs & Respondent No. 1 are jointly holding some land or shops, even they have not pleaded such in their plaint, but they have specifically admitted that the shops were constructed by Respondent No. 1 and he is receiving the rent. Their witness Narendra Nath Sharma (PW-2) has specifically admitted in para 5 of his evidence that the shops were constructed by Motichandra & Motichandra is receiving rent. This evidence is sufficient to infer that Respondent No. 1 had constructed the shops and is receiving the rent. In absence of any pleading or evidence to the effect that the shops were constructed in the joint property by joint fund, it is difficult to hold that the Respondents were under obligation to pay rent to the Plaintiffs.

Parties are required to lead evidence in support of their pleadings and they are required to plead their case briefly and substantially. As has been held by the Apex Court in the case of Gulabrao (supra), Court cannot make out a new case not pleaded. Relevant portion of para 7 of the said judgment reads thus,

We agree with the plea raised by the counsel for the Appellants that in the absence of any pleadings to the effect that Balwantrao Shinde had given the properties to Chhabubai by way of maintenance and in the absence of any evidence to that effect, the finding that the properties were given in lieu of maintenance to Chhabubai which right could be enlarged into full ownership right could not be recorded. The High Court clearly fell in error in recording a finding to the effect that Chhabubai had become absolute owner of the properties left by Balwantrao Shinde. Another factor which persuades us to take this view is that the properties were ancestral in hands of Balwantrao Shinde in which Plaintiff No. 1 had a right by birth. The entire property therefore could not have been given to Chhabubai by way of maintenance.

While dealing with the same question of pleadings & proof, the Apex Court in the matter of Messrs. Trojan (supra), has held that the decision of a case cannot be based on grounds outside the pleadings of the parties. Relevant portion of para 22 of the said judgments reads thus,

It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the Plaintiff claimed relief in respect of these shares are clear and emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the Plaintiff in the alternative was entitled to this amount on the ground of failure of consideration. That being so, we see no valid grounds for entertaining the Plaintiffs claim as based on failure of consideration on the case pleaded by him. In disagreement with the. Courts below we hold that the Plaintiff was wrongly granted a decree for the sum of Rs. 6,762-8-0 in respect of the Associated Cement shares in this suit. Accounts settled could only be reopened on proper allegations.

Although if the parties are having full knowledge of the case of each others and have led evidence, their case cannot be rejected on the ground of technicalities or on the ground of detailed pleadings.

In the present case, the Appellants have not mentioned the specification of the property as required under Order 7 Rule 3 of the Code. The Appellants have not pleaded about joint construction of the property or construction of the property by both the parties by joint fund over the joint property i.e. the land. These are the basic and substantial pleadings necessary for the parties to establish their right over the shops. In absence of such pleadings and even specific evidence, the trial Court has rejected the application for appointment of Commissioner for local inspection. Pleadings and evidence of the Appellants do not disclose any dispute of boundary or identity of the property, the pleadings simply reveal that the Appellants were entitled for rent and the evidence reveals that the Plaintiffs had also spent money for construction of house. Entitlement of rent or question of spending of money for construction cannot be ascertained by the Commissioner. In spite of that, the Plaintiffs have not filed application at the earliest stage of the suit. Virtually, in this case, issuance of Commission would be a futile exercise. In absence of any pleading or evidence of the dispute of identity of the property, any local inspection would be of no help to any party.

It appears that the Appellants/Plaintiffs were interested to introduce new ground of establishment of co-ownership over the plot & shops constructed by Respondent No. 1, under the garb of appointment of Commissioner for local inspection. As held in the cases of Union of India (supra) & Geeta Mandir (supra), commission cannot be issued for collecting evidence where the Court can get evidence itself or with a view to remove the defect. Issuance of commission for local inspection was not necessary in the present case. By filing application under Order 41 Rule 27 of the Code, the Appellants/Plaintiffs want to set up a new case for declaration of ownership over the property, even whose description has not been pleaded in the plaint. In the case of Mahesh Prasad* (supra) this Court has held that additional evidence of subsequent event may be admitted, but in this case, admittedly if there was any necessity of demarcation of land for disposal of the suit, then it was available with the Appellants/Plaintiffs on the date of filing of the suit. Therefore, only on the ground that after decision of the suit, the land was demarcated twice at the instance of the Appellants, is not the subsequent event. In this case, in absence of any dispute and pleading of identity of the property, additional evidence of demarcation report was not necessary. As held by the Apex Court in the matter of State of U.P. (supra), additional evidence cannot be admitted to remove lacunae of the parties.

According to the pleadings and evidence, identity of the property is not under dispute. Entitlement for receiving rent on the basis of evidence and investment for construction of shops may be treated as the dispute of this case. The present Appellants have failed to satisfy the existence of ground for admitting additional evidence in terms of Order 41 Rule 27 of the Code, even they have failed to satisfy the necessity of such additional evidence.

At the appellate stage, additional evidence may be admitted/permitted within the ambits of Clauses (a) & (aa) of Sub-rule (1) of Rule 27 of Order 41 of the Code or under Clause (b) of Sub-rule (1) of Rule 27 of Order 41 of the Code, if the appellate Court requires to enable it to pronounce judgment. Ratio of the aforesaid decisions referred by the Apex Court and the provisions of law are applicable in this case.

For the foregoing reasons, substantial question of law No. (i) formulated for the decision of this appeal is decided as negative and substantial question of law No. (ii) is also decided as negative.

Rejection of application under Order 26 Rule 9 of the Code by the trial Court has not materially affected the decision and the lower appellate Court has not failed to exercise the jurisdiction in refusing to admit the additional evidence viz., demarcation report by the revenue Court, and the same was not the subsequent event which materially affected the decision. Thus, the application for admitting additional evidence in terms of Order 41 Rule 27 of the Code is also dismissed.

Consequently, on the basis of findings on the substantial questions of law formulated for the decision of this appeal, I do not find any force in the appeal, same is liable to be dismissed and it is hereby dismissed.

The Appellants shall bear their costs of the suit as well as the appeal and also the costs of the Respondents.

Advocate fees as per schedule.

Decree be drawn up accordingly.