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PUNJAB & HARYANA HIGH COURT
G.R.Majithia, J.
Savitri
Versus
Manphool
Regular Second Appeal No. 2364 of 1989,
Decided On : NOVEMBER 25, 1991
ADVERSE POSSESSION - LIMITATION ACT, 1963 - SECTION 27 - ADVERSE POSSESSION - SUIT FOR DECLARATION OF OWNERSHIP - ADDITIONAL EVIDENCE - ORDER XLI, RULE 27, CIVIL PROCEDURE CODE, 1908 - ADDITIONAL EVIDENCE CAN BE ADMITTED IF IT IS REQUIRED TO ENABLE THE COURT TO PRONOUNCE JUDGMENT - THE COURT MAY BE ABLE TO PRONOUNCE JUDGMENT EVEN IN THE ABSENCE OF ADDITIONAL EVIDENCE, BUT IF PRODUCTION OF ADDITIONAL EVIDENCE CAN ENABLE THE COURT TO DISPOSE OF THE APPEAL IN A MORE SATISFACTORY MANNER, CONDITIONS MENTIONED IN THE SUB-CLAUSE WILL BE SATISFIED.
Fact of the Case:
Plaintiffs filed a suit for declaration of ownership of the suit land by way of adverse possession. The trial court dismissed the suit, but the first appellate court reversed the finding and held that the plaintiffs had perfected their title over the suit land by adverse possession. The defendants filed a regular second appeal.
Finding of the Court:
The High Court held that the first appellate court erred in disallowing the production of additional documentary evidence in the form of revenue records, including the record of rights, which were sought to be produced by the plaintiffs. The court held that the production of these documents would have enabled the first appellate court to conclusively adjudicate on the plea of abandonment and which would enable them to establish their plea of ownership by adverse possession.
Issues: 1. Whether the plaintiffs have become the owners of the suit land by way of adverse possession in accordance with shares as detailed in the head-note of the plaint? 2. Whether the suit is not maintainable in the present form? 3. Whether the suit is bad for mis-joinder of parties and causes of action?
Ratio Decidendi: The court held that the additional evidence sought to be produced was free from any suspicion and that the revenue record, including the record of rights, was sought to be produced. These are public documents and admissible without formal proof. The defendants could not challenge the authenticity of these documents. The production of these documents would have enabled the first appellate court to conclusively adjudicate on the plea of abandonment and which would enable them to establish their plea of ownership by adverse possession.
Final Decision: The High Court reversed the order of the first appellate court dated April 1, 1989, and directed the first appellate court to permit the plaintiffs to produce additional evidence and any other connecting evidence or oral evidence in this behalf. It also directed the first appellate court to give one opportunity to the defendants to lead rebuttal evidence. After recording the evidence, the first appellate court was directed to re-determine issue No. 1 in the light of the evidence already present on the record and the additional evidence brought on record and to submit its report to the High Court within three months from the date of receipt of copy of the order.
G.R.Majithia, J.
1. The defendants have come up in regular second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and decreeing the suit of the plaintiff-respondents for declaration that they were owners-in-possession of the suit land.
2. The facts:-
Slier Singh and Partap Singh, sons of Lachhman were the owners of the suit land, part of which is situated in village Naguran and part in village Nheri Naguran; that they left the village and settled in Jind in 1950 and since then the plaintiff-respondents (hereinafter the plaintiffs) had been in possession as owners thereof without payment of any batai, rent or other charges t6 the defendant-appellants (hereinafter the defendants); that their possession had been continuous, open, hostile and to the knowledge of the defendants and, thus, they had become its owners by adverse possession.
3. The suit was contested by defendant-appellant No. 1 and she took preliminary objection that the suit was not maintainable in the present form ; that the suit was bad for mis joinder of parties and cause of action. The allegation that the plaintiffs had become owners by adverse possession was controverted.
4. On the pleadings of the parties, the following issues were framed :-
(1) Whether the plaintiffs have become the owners of the suit land by way of adverse possession in accordance with shares as detailed in the head-note of the plaint ? O. P. P.
(2) Whether the suit is not maintainable in the present form ? O. P. D.
(3) Whether the suit is bad for mis-joinder of parties and causes of action ? O. P. D.
(4) Relief.
5. The trial Judge decided issue No. 1 against the plaintiffs ; issues No. 2 and 3 were decided against the defendants since they were not pressed and, oh ultimate analysis, the suit was dismissed.
6. On appeal, the first appellate Court, on appraisal of the evidence brought on record, reversed the finding of the trial Judge under issue No. 1 and held that the plaintiffs had perfected their title over the suit land by adverse possession.
7. Defendant No. 1 and the legal representatives of defendant No. 2 Partap Singh have come up in this regular second appeal.
8. At the time of hearing of the appeal, an application was filed in Court by the plaintiffs seeking permission to withdraw the appeal with permission to file fresh suit on the same cause of action. It was pleaded in the application that material facts were not pleaded in the plaint and that documentary evidence, viz., sanctioning of mutation in 1908 by which the name of the predecessor-in-interest of the defendants was removed from the revenue record, having remained absent from the village for a long time, was not brought on record. The application was opposed by the learned counsel for the defendants.
9. After examining the same, I am not satisfied that the suit is likely to fail on account of some technical or procedural error. The application is accordingly dismissed. The office is directed to register this application.
10. Learned counsel for the appellants challenges the finding of the first appellate Court under issue No. 1. While examining the record of the first appellate Court, it came to my notice that the plaintiffs moved an application under Order 41, rule 27, Civil Procedure Code (for short, the Code) in the first appellate Court seeking permission to produce certified copies of mutation No. 728 and 1209 sanctioned on August 31, 1908 and September 27, 190S, respectively. The certified copies of the mutations were, placed on record. A perusal thereof reveals that Lachhman, predecessor-in-interest of the defendants, was shown gair kabzan (without possession) and the mutation for removing his name from the revenue record Was sanctioned. That application was rejected by the first appellate Court with the following observations : -
"2. I have heard the ld. counsel for both the parties.
3. It is true that copy of jamabandi for 1886-87 and copies o
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