Judgment

Mr. Anil Kshetarpal, J.

The defendants (Petitioners herein) assail the correctness of the order passed by the first appellate court dated 02.11.2019 while permitting the plaintiffs (respondents herein) to lead additional evidence during the pendency of Ist appeal. Some facts are required to be noted.

2. The plaintiffs (respondents herein) filed a suit for declaration that the judgment and decree dated 20.12.2008 passed in Civil Suit No.397 of 2008, has been obtained by the defendants fraudulently and it does not affect their proprietary rights. They claim that the property in question is ancestral as well as coparcenary property and hence, they have acquired a vested right since the time of their birth. The defendants contested the suit on various grounds.

3. The learned trial Court dismissed the suit on 08.09.2015. The plaintiffs filed an appeal against the judgment of the trial court. During the pendency of the appeal, they filed an application for permission to lead additional evidence on the ground that when they previously searched for the old revenue record relating to the said property, they could not trace the same despite due diligence on their part as the record was found missing. Now the record has been traced out which proves that the property is coming from Jai Ram Dass who was predecessor-in-interest of the parties. Thereafter, the property fell to the share of Paras Ram, who was having two sons, namely, Radha Krishan and Hans Raj. After the death of Radha Krishan, his two sons Banarsi Dass and Sunder Lal succeeded to his share in the property. When Banarsi Dass died, he left behind three sons, Som Nath, Dharam Parkash @ Pahari and Brij Mohan. Hence, they filed an application for permission to lead additional evidence by producing the following documents:-

“a- jamabandi 1887-88

b- jamabandi 1930-31

c- jamabandi 1950-51

d- jamabandi 1958-59

e- jamabandi 1963-64

f- jamabandi 1966-67

g- Besides this there are various Intkals bearing No.753, 1201, 425, 57.

h- Khatanu Istemal

i- Khatauni Paimaish and

j- Naksha Hakdarwar

k- jamabandi 1904-1905"

They also requested the First Appellate Court to direct the Revenue Officials to prepare an excerpt of the revenue record for its facility. The aforesaid application was opposed by the defendants.

4. The learned first appellate court, on appreciating the evidence available on the record, considered it appropriate to allow the application after noticing that the plaintiffs previously despite due diligence could not trace the old record. The court further found that the documents sought to be produced in additional evidence are public documents and the copies of the jamabandi (the record of right) carry the presumption of truth as to their contents. The defendants have challenged the aforesaid order passed by the first appellate court.

5. This Bench has heard the learned counsel for the parties and with their able assistance perused the paper book. The learned counsel representing the petitioners contends that the plaintiffs had filed two applications before the first appellate court, i.e. an application for permission to amend the plaint which was dismissed, whereas the second application under Order 41 Rule 27 CPC which was allowed. He submits that the first appellate court erred in deciding the application independently without hearing the appeal on merits. He contends that the application for permission to lead additional evidence cannot be decided independently. He, in support thereof, relies upon the judgment passed by the Hon’ble Supreme Court in Union of India vs. Ibrahim Uddin and Another , (2012) 8 SCC 148 . The learned counsel heavily relies upon paragraph 52 of the judgment. He further submits that since the plaintiffs were in the knowledge of the documents which are sought to be produced in additional evidence, hence, they cannot be permitted to lead additional evidence, at the stage of the First Appeal. He further contends that since the plaintiffs themselves have closed th