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 set aside.

JUDGMENT :

Romesh Verma, J.

The present petition arises out of the order dated 02.07.2022, passed by the learned Additional District Judge-III, Kangra at Dharamshala, District Kangra, H.P., whereby application filed by the respondents under Order 41 Rule 27 read with Section 151 CPC has been allowed.

2. The brief facts of the case are that the respondent-plaintiff filed a suit in the Court of learned Civil Judge (Jr. Div.), Baijnath, District Kangra, H.P. on 19.05.2011. As per the averments made in the plaint, it was stated that he is joint owner in possession of the suit land comprised in Khata No. 41, Khatauni No. 50, Khasra Nos. 206, 293, 342, 428/374 and 429/374 Kita-5, measuring 0-37-90 hects its ½ share being equal to 0-18-95 hects situated at Mohal Jamrela, Mauza and Tehsil Baijnath, District Kangra, H.P., as per Jamabandi for the year 2007-08 and the mutation No. 118 dated 26.12.2006, which has been wrongly sanctioned and attested in favour of defendants showing them to be the sole owners in possession of the suit land, be declared as null and void, not binding upon him, being sanctioned at his back.

3. The plaintiff also sought relief of declaration and further for injunction, restraining the defendants from changing the nature, taking forcible possession, alienating the suit land in any manner whatsoever.

4. It was further averred by the plaintiff that he alongwith defendants and other co-owners is in possession of the suit land to the extent of ½ share but defendants never claimed themselves as tenant through any other co-owner, but they in connivance with the revenue staff got sanctioned mutation No. 118 on 26.12.2006 under Section 104(3) of H.P. Tenancy and Land Reforms Act, thereby declaring themselves to be as absolute owners in possession of the suit land.

5. It was further averred that no notice was ever received by him and defendants on 18.04.2011 threatened to dispossess the plaintiff from the suit land, which is in his possession and when he requested them to admit his case, the defendants proclaimed that they have become owners of the suit land by spending a sum of Rs. 16,000/-. Therefore, the plaintiff filed suit seeking declaration and injunction.

6. The defendants contested the suit by filing written statement wherein they took preliminary objections with regard to cause of action, locus standi, maintainability, valuation, limitation, misjoinder/non-joinder of necessary parties and suppression of material facts.

7. It was averred that Mangta Ram was recorded as Bazate Baniz Maroosi Digar Hisadaran and all the owners were aware about the said fact and after the death of said Mangta, the defendants inherited the suit land and mutation No. 118 to this effect has been sanctioned in their favour. It was admitted that the plaintiff is a co-owner but his status is totally different and it is he who got entry changed with respect to Khasra No. 303 in the revenue record and he never remained in possession over the suit land. Earlier, the plaintiff had also filed suit against some of the defendants which was dismissed. Plaintiff had also filed an application for correction of revenue entries before Tehsildar which was dismissed on 15.03.2000 and then filed Civil Suit bearing No. 5/98 on 23.03.1998 with respe