Honble Pankaj Mithal, J.—The dispute involved in this second appeal is about an ‘Abchak’ (small piece of land used for flowing water) and a 9 ft. wide ‘Rasta’.

2. The plaintiff/appellants herein i.e. Ram Bharose Lal and Ram Autar instituted a suit for possession and permanent injunction in respect of the above disputed properties. The basis of the suit happens to be a sale deed dated 3.9.59 which was executed by Kunwar Hari Raj Singh transferring some land in their favour. The defendant/respondents contested the suit denying the title of the plaintiff/appellants over the aforesaid properties and at the same time claiming easementary right by prescription over the ‘Rasta’. The suit was dismissed by the Court of first instance and the appeal of the plaintiff/appellants also met the same fate. Thus having lost from both the Courts below they have preferred this second appeal.

3. The appeal was admitted vide order dated 15.10.1976 and a substantial question of law was framed on 31.3.2008 which is as under :

“Whether both the Courts below committed an error of law in misinterpreting the title deed of the plaintiff-appellants.?”

4. Heard Sri Anil Sharma learned Counsel for the plaintiff/appellants and Sri S. Alim Shah, learned Counsel for respondents.

5. The contention of the learned Counsel for the plaintiff/appellants is that the Courts below have misinterpreted and misconstrued the sale deed dated 3.5.59 in so far as on the complete and harmonious reading of the same it is evident that the plaintiff/appellants have purchased not only a piece of land but also the disputed ‘Rasta’ under the said sale deed.

6. As regards the ‘Abchak’ he has moved an application for taking additional evidence on record under Order XLI Rule 27, C.P.C. He contends that the partition deed between the family members of the defendant/respondents which he seeks to adduce as additional evidence clearly indicates that the ‘Abchak’ in dispute is not the property of the defendant/respondents. The application has been strongly opposed by the defendant/respondents and it has been alleged that any such evidence which was within the knowledge of the plaintiff/appellants cannot be taken as additional evidence at this stage of the second appeal after it had remained pending for more than 22 years as no reasons have been disclosed for not bringing it on record earlier or in the Courts below.

7. In my opinion, the aforesaid controversy with regard to the ownership right of the plaintiff/appellants over the ‘Abchak’ can be resolved even without referring to any additional evidence. The plaintiff/appellants are the persons who are claiming ownership over the same, therefore, it is for them to prove their title over it. The statement of the Counsel for the plaintiff/appellants as recorded under Order X Rule 2, C.P.C. in the lower Court on 19.7.71, in unequivocal terms states that the plaintiff/appellants are claiming ownership of the ‘Abchak’ on the basis of the sale deed dated 3.5.59. The relevant portion of his statement as recorded on 19.7.71 is reproduced here-in-below :

“Sri O.P. Goyal for the plaintiff states that the plaintiffs are owners of the ‘abchak’ mentioned in para 5 (b) of the plaint through the deed of sale dated 5.9.1959.”

8. In view of the above statement the entire claim of the plaintiff/appellants in respect of the ‘Abchak’ is only by virtue of the sale deed dated 3.5.1959. I have gone through the above sale deed Ex. 1 on record. The sale deed nowhere recites that the said ‘Abchak’ is also a subject matter of the transfer therein. The ‘Abchak’ as such, has not been transferred by the said sale deed in favour of the plaintiff/appellants. Therefore, the entire thrust of the claim of the plaintiff/appellants in respect of the said ‘Abchak’ on the basis of the above sale deed falls to the ground. Apart from the above, P.W.1 i.e. Ram Bharose Lal himself specifically states as per his statement that he is not the owner of the ‘Abchak’. Thus, the cla