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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Mohan Singh & Ors. - Appellants
Versus
Tulsi Ram (Since Deceased) Through Lrs & Ors. - Respondents
Regular Second Appeal No. 195 of 2007
Decided On : 27-09-2022
Civil Procedural Code, 1908 - Order 2 Rule 2 - Order 41 Rule 27 - Section 96 – Appeal - Suit for decree of possession - Production of additional evidence in Appellate Court - Whether adjudication of application under Order 41 Rule 27 before decision of main appeal will vitiate the judgment and decree passed by learned lower appellate Court - Whether defendant is owner in possession of suit property as alleged – Court had missed an opportunity of assessing necessity of documents for adjudication of the main matter. (Para 17)
Findings of Court : Application for additional evidence at time of final adjudication of appeal, it would not have missed an opportunity of assessing necessity of documents for adjudication of main matter. The first substantial question of law is thus decided in affirmative - As regards other substantial question of law framed by this Court, same is answered in negative. There was no issue framed on limitation. In fact, there was no objection to that effect in written statement Limitation was not an issue before learned lower appellate Court. Even otherwise, from facts and circumstances of case, issue of limitation cannot be made out.
Result: Appeal disposed of
JUDGMENT :
By way of instant appeal, appellants have assailed judgment and decree dated 23.9.2006, passed by learned Additional District Judge-II, Kangra at Dharmshala, in Civil Appeal No. 104 of 1999, whereby the judgment and decree dated 7.9.1999, passed by Sub Judge, Kangra in Civil Suit No. 67 of 1992, was affirmed.
2. Parties hereafter shall be referred to by their names, as find mention in the memorandum of parties in the civil suit filed before learned trial Court.
3. Brief facts for adjudication of the appeal are that Tulsi Ram filed a suit for decree of possession in respect of suit land, which was described as land comprised in khata No. 124 min, khatauni No. 233, khasra No. 1385, measuring 7 square meters, situated at Mohal Tehsil Chowk, Tehsil and District Kangra, H.P. (hereafter referred to as the suit land). The facts averred in the plaint were that the plaintiff was a perpetual tenant over the suit land on payment of rent at the rate of Rs. 40/- per month. The tenancy was claimed by plaintiff under Fateh Singh by virtue of agreement dated 21.12.1981. The plaintiff claimed himself to have remained in possession of suit land till December, 1991, whereafter, he alleged his illegal and forcible dispossession at the hands of defendants. It was submitted that the plaintiff had a structure standing over the suit land, having value of more than Rs. 20,000/-, which was also demolished by defendants by exercising force. As per plaintiff, defendant Bangali Ram had also instituted a suit for possession by demolition of structure against the plaintiff in respect of the suit land, but during the pendency of the said suit, Tulsi Ram was forcibly dispossessed and thereafter his suit was withdrawn by Bangali Ram on 5.12.1991.
4. The suit was contested by Bangali Ram. Objections as to maintainability of the suit, non-joinder of necessary parties, valuation, estoppels etc. were raised. The suit was also stated to be barred under Order 2 Rule 2 CPC. On merits, Bangali Ram claimed himself to be the owner of the suit land on the basis of its purchase from previous owner in the year 1960. It was alleged that Tulsi Ram had occupied the suit land by deceitful means. He had given an undertaking to vacate the suit land but had failed. As per Bangali Ram, he had filed suit for possession but during its pendency on 17.8.1991, the “Khokha” (kiosk) raised by Tulsi Ram on suit land got demolished. Tulsi Ram had removed his belongings and vacated the land. The plea of tenancy raised by Tulsi Ram was also denied.
5. On the basis of pleadings of the parties, following issues were framed by learned trial Court :
2. Whether the plaintiff is entitled to claim damage if so, to what extent? OPP.
3. Whether the suit is not maintainable in the present form? OPD.
4. Whether the suit is bad for misjoinder of necessary parties? OPD.
5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.
6. Whether the suit is barred U.O. 2 Rule 2 CPC? OPD.
7. Whether the act and conduct of the plaintiff is bar to the present suit? OPD.
8. Whether the defendant is owner in possession of the suit property as alleged? OPD.
9. Whether the plaintiff has removed his structure voluntarily and vacated the land as alleged? OPD.
9A. Whether the plaintiff fabricated any document as alleged, if so, its effect? OPD.
The learned trial Court decided issues No. 1 and 2 in affirmative, whereas issues No. 3 to 9A were decided in negative. Accordingly, the suit of Tulsi Ram was decreed in following terms: -
Point of Law : Provisions of clause (b) of Rule 27 of Order 41CPC. Said rule applies when Court feels that production of any document or examination of any witness is necessary to enable it to pronou....
Appellate court cannot admit additional evidence under Order 41 Rule 27 CPC absent due diligence proof or necessity for judgment; must record reasons; erroneous allowance despite negligence and delay....
Second appeals under CPC S.100 do not permit re-appreciation of evidence; concurrent findings upheld absent perversity or substantial question of law. Adverse possession claim fails without rebutting....
The main legal point established in the judgment is the strict interpretation and application of the provisions of Order 41 Rule 27 C.P.C regarding the admissibility of additional evidence in the app....
The Appellate Court cannot remand a case without meeting the specific criteria outlined in the Civil Procedure Code, particularly under Order 41, Rules 23, 23-A, or 25.
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