IMPORTANT POINT
Where documents which were sought to be produced by the appellants formed the very basis of the claim made by appellants in the civil suit and their consideration by the court was necessary for a just decision of the case then Appellate Court as also High Court erred in law in not accepting the application for additional evidence.

ORDER

Surinder Singh Nijjar, J. —

Leave granted.

2. This appeal has been filed against the judgment of learned Single Judge of the Rajasthan High Court, Jaipur Bench, dated 03.01.2008 rendered in S.B. Civil Second Appeal No.305 of 2006 whereby the appeal as well as the application under Order 41 Rule 27 CPC filed by the plaintiff/appellants have been dismissed. The appellants claimed to be owners in possession of the suit land.

3. They claim ownership rights on the basis of the order passed by the Additional District Collector, Ajmer, Rajasthan dated 11.01.1971 passed in Case No.159 of 1970, wherein predecessors- in-interest of the appellants, namely, Meghraj was declared to be owner of the suit land. An application had been filed by Meghraj and his brother on 15.12.1959 in the Court of Additional District Collector, Ajmer, Rajasthan seeking a declaration that the suit land was their personal property. Upon due investigation the declaration was issued that “the lands of the Khasra Nos. 427,440,441,2202,2241 and 2242 admeasuring 6 bighas 6 biswas 10 biswansi are declared personal properties of the applicants under Section 6 of the Rajasthan Biswedari & Abolition of Jamindari Act.”

4. Another order was passed in Revenue Suit No.176 of 1989 by the Sub Divisional Officer, Ajmer, Rajasthan on 20.06.1994 whereby Urban Improvement Trust, Ajmer (hereinafter referred to as “UIT”) was directed “not carry out any construction without applying & initiating legal proceedings, and the Urban Improvement Trust, Ajmer has no restriction in carrying out the proceedings of acquisition in accordance with practice.” This direction was issued on the basis of the averments made in the application that the appellants are the Khatedar cultivators of the land in dispute. It was apprehended that UIT wants to construct the road through the aforesaid land without legally acquiring the same. The aforesaid judgment of the Sub Divisional Officer was not challenged by the UIT.

5. On 31.10.1994, the appellants submitted an application seeking demarcation of the land in question which was duly ordered by the Sub-Divisional Officer. Thereafter the appellants received a letter dated 23.11.1994 from the UIT disclosing that the land in question had been acquired vide Award dated 25.01.1994. The appellants and the other co-owners were asked to receive the compensation from the office of UIT. On receipt of the aforesaid letter the appellants sent notice challenging the legality of the award. The predecessors of the appellants Meghraj then filed a civil suit in the Court of Additional Civil Judge (A.B.) & Judicial Magistrate First Class, No.2, Ajmer seeking an injunction and declaration. In the suit the entire acquisition proceedings had been challenged on the ground that due notice was not sent to the owner of the land. It was pleaded that the land acquisition procedure as prescribed under Section 4, Section 5(a) and Section 11(a) of the Land Acquisition Act had not been followed. After completion of the pleadings the trial court framed the following issues:

“1. If the disputed property has been declared as personal property of the plaintiff?

2. If this court has jurisdiction to hear this suit.

3. If the defendant has a right to dispossess the plaintiff from the disputed property?

4. Relief.”

Issue Nos. 1 and 2 have been decided by the trial court with the following observations:

“The onus of proving the above issues was on the plaintiff. But the plaintiff has not produced any type of oral and documentary evidence in support of the above issues. Hence, under these circumstances, both the above issues are decided against plaintiff and in favour of defendant.”

With these observations the suit of the plaintiff was dismissed by judgment and order dated 26.10.1998.

6. Aggrieved, the appellants filed Civil Appeal No.134 of 1998 in the Court of Additional District Judge No.1, Ajmer, Rajashtan. Along with this appeal an application under Order 41 Rule 27 CPC was also filed to add