Point of Law: Appellate Court may permit additional evidence to be produced whether oral or documentary, if conditions mentioned in Order 41 Rule 27 are satisfied.

JUDGMENT :

1. The civil suit filed by the respondent for vacant possession of suit land on the strength of his title and on the basis of a demarcation report showing encroachment on the suit land by the appellant/defendant has been decreed by both the learned Courts below. This is defendant’s second appeal.

2. Facts

2(i) Plaintiff’s case was that he was owner of land comprised in Khata No. 167, Khatauni No. 230 and Khasra No. 899/160, measuring 2 kanals 1 marla, situated in Up Mohal Anu, Mauza Matti Tihra, Tehsil and District Hamirpur, H.P. He applied for demarcation of the suit land. Demarcation was conducted and its report was affirmed by Assistant Collector First grade Hamirpur on 11.04.2012 in Case No. 65 of 2012 titled Gopala Vs. Om Parkash and others. In this demarcation report, the defendant was found to have encroached over 19.38 Sq. meters of plaintiff’s land comprised in Khasra No. 899/160. The encroached area was reflected as Khasra No. 899/160/1. Plaintiff pleaded that despite requests, the defendant did not hand over the vacant possession of 19.38 Sq. meters of land to him, hence he filed the civil suit for possession of the aforesaid land measuring 19.38 Sq. meters.

2(ii) In his written statement, the defendant took preliminary objections regarding locus standi, cause of action and maintainability of suit. The defendant also pleaded that suit filed by the plaintiff was barred by principle of estoppel as previously also, on the same issue, the plaintiff had filed a civil suit that was dismissed by the learned trial Court. An objection of suit being barred by limitation was also raised. The defendant also submitted that his house was constructed on the suit land in the year 1985 after getting the site plan approved from the competent authority. He also submitted that the house was constructed over the suit land with the consent of its previous owner in the year 1985, whereas the plaintiff had purchased the land in question in the year 1995. Plaintiff having stepped into the shoes of previous owner could not have instituted the civil suit for possession. Regarding the demarcation report, the defence was that the said demarcation was one sided, conducted in violation of principles of natural justice behind the back of the defendant and was also not in consonance with the instructions issued by the Financial Commissioner.

2(iii) The parties led oral and documentary evidence in support of their respective pleadings. On considering the same, learned trial Court decreed the suit of the plaintiff on 16.03.2021. The plaintiff was held entitled for vacant possession of the suit land measuring 19.38 Sq. meters comprised in Khasra No. 899/160/1, situated in Up Mohal Anu, Mauza Matti Tihra, Tehsil and District Hamirpur after demolition of the structure raised by the defendant. The judgment and decree passed by the learned trial Court was upheld by the learned first appellate Court on 31.12.2021.

2(iv) Aggrieved against the aforesaid judgments and decrees passed against him, the defendant preferred the instant Regular Second Appeal on 28.03.2022. After filing of the appeal, the defendant on 28.07.2022 moved an application being CMP No. 13262 of 2022 under Order 41 Rule 27 of the Civil Procedure Code for permission to lead additional evidence for exhibiting the pleadings and evidence of an earlier litigation between the parties i.e. of Civil Suit No. 79 of 1995 by summoning the original records thereof and examining the custodians of record after summoning them.

3. With the consent of learned counsel for the parties, the matter has been heard at the admission stage.

Contentions

3(i) Learned counsel for the appellant-defendant submitted that the judgments and decrees passed by learned Courts below have not correctly appreciated either the pleadings or the evidence on record. That the plaintiff had earlier filed a civil suit on the same cause of action against the same defendant in the year 1995. That Civil Suit No. 79 of 1995 was