Relevance of earlier judgment, adverse inference from withholding evidence, admissibility of oral evidence and site plan.

M.M.Kumar, J.

1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that in earlier litigation in respect of the property in dispute in the present proceedings it was held that the defendant-appellant was not adopted by Inder Singh who was admittedly the owner of the suit property. It was further found that the afore-mentioned Inder Singh did not execute any valid will in favour of the defendant-appellant bequeathing his property including the property in dispute. The plaintiff-respondent has produced a copy of the judgment dated 17.1.1992 in C.A.No. 1 of 1987 Ex.PA/1. In the afore-mentioned proceedings there were three specific issues raised before the learned Civil Judge, Barnala which were as under:

1. Whether plaintiff No. 1 Lal Singh is in possession of 1/4 share in the land in dispute on the basis of the sale-deed dated 19.6.1984 executed in his favour by Inder Singh? OPP.

2. Whether Lal Singh is in possession of 1/2 share of the land as mortgagee? OPP

3. Whether Inder Singh deceased executed a valid will dated 19.6.1984 of his property in favour of plaintiff? OPP

2. All the aforementioned issues were decided against the defendant-appellant and the findings were affirmed by the lower appellate Court vide judgment Ex.P1/A. No further appeal was disclosed to have been filed by the defendant-appellant which led to the presumption by the Courts below that the judgment dated 17 1.1992 Ex.Pl/A had attained finality. The afore-mentioned judgment has been held to be relevant under Section 42 of the Indian Evidence Act, 1872. Further reliance has also been placed on a copy of the voters list Ex.P-3 for the year 1993 in respect of village Mulowal. The name of the defendant-appellant figures in that list. The afore-mentioned factual position has also been conceded by the defendant-appellant that earlier to 1999 he used to reside at village Mulowal. The afore-mentioned evidence would lead to the conclusion that the defendant-appellant was not adopted by Inder Singh nor he ever lived with Inder Singh since his childhood.

3. Learned appellate Court has also held that best piece of evidence namely copy of the Will allegedly executed by Inder Singh in favour of defendant-appellant and copy of the civil suit earlier filed by him in respect of the property of Inder Singh have been withheld by the defendant-appellate and on the basis of the judgment of the Supreme Court in the case of Gopal Krishanjit Ketkar v. Mohame Haji Talif and Ors., it has held that withholding the best piece of evidence would lead to an adverse against such a party notwithstanding that onus to prove did not lie on him.

4. Both the Courts below further went on to hold that the site plan prepared by the plaintiff-respondent by visiting the spot would not be considered as a proof of title yet it would support and corroborate the statements made by other witnesses of the plaintiff-respondents that she has been residing in the village.

5. Having heard the learned Counsel and perusing the view taken by the two courts below I am of the considered view that no interference of this Court would be warranted, it has been concurrently found that in the earlier litigation defendant-respondent has failed to prove that he was the adopted son of Inder Singh, the original owner of the property or that Inder Singh had executed a Will in his favour. It is well settled that a judgment and decree passed in an earlier litigation in respect of the same property although not inter-parties would be relevant to determine the question raised in the later dispute albeit between the different parties. This question has been considered by the Supreme Court in the case of Sh. Madho Dass and Ors. v. Mukand Ran and Anr. 2 A.I.R, 1955 S.C. 481. In that case, Supreme Court accepted the interpretation given to a will by the Privy Council although the proceedings before the Priv