1996 Supreme(MP) 1256

IN THE HIGH COURT OF MADHYA PRADESH
A.K. MATHUR, S.C. PANDEY, JJ.
Jailal - Appellant
Vs.
Smt. Kamla Bai - Respondents
L.P.A. No. 7 of 1987 (J)
Decided On : 25-01-1996

Headnote:(1) Evidence Act, 1872 – S. 3 – panch faisla – not an evidence in a case.

       (2) Civil Procedure Code, 1908 – O. 41 R. 27 – additional evidence at appellate stage – evidence contained in document sought to be produced – rightly rejected.

        Short Note

       1. The land in dispute was owned by late Parmanand. Patibai is widow of Parmanand who is appellant No. 3 in this appeal. Appellants No. 4 and 5 are daughters and sons of Parmanand. The original suit was filed by Makardhwaj whose legal representatives are respondent, No. 1 to 6 in this appeal. Makardhwaj claimed in this appeal that he was the owner of the land in dispute because he had purchased the suit land from Parmanand vide registered sale deed dated 30.5.70 for a consideration of Rs. 34,000/ – . It was also claimed by Makardhwaj that he was placed in possession after execution of the sale deed. Makardhwaj claimed in the plaint that he was threatened for dispossession from the suit land by force, by the appellants, therefore, he filed a suit for declaration of his title.

       2. The appellants, in their defence, submitted that the sale in favour of Makardhwaj was Benami and he had not paid any consideration. According to the appellants the sale deed dated 30.5.70 was null and void.

       3. The trial Judge, after recording the evidence, relied on the evidence of P.W.2, Abdul Jabbar and came to the conclusion that this witness is reliable. He was not even cross examined by the opposite parties and, therefore, he found no infirmity in the sale deed. The learned trial Judge, however, further found that even it is held that the sale deed was not legal, the appellants are not entitled to disturb the possession of the respondents on the basis of their prior title to the land in dispute, as they had already parted with the possession and title of the land in favour of Nandlal. In coming to this conclusion, the learned trial Judge relied on the testimony of D.W.2, Nandlal who proved that he has purchased the suit land from Parmanand and paid entire sum to Parmanand. In view of the above finding of sale in favour of Nandlal by Parmanand, the learned trial Court held that there can be no dispute between the appellants/defendants and the plaintiffs. The appellants had no title to the land in dispute. It was only Nandlal who had title to the land in dispute after Parmanand sold away his land to Nandlal (D.W.2). In view of the aforesaid position, the trial Judge found that even the defence of the appellants is accepted then also they had no case because they could not disturb with the right and title of Makardhwaj and his legal representatives. The right, if any, was with Nandlal who had admittedly purchased the land in dispute from Parmanand.

       4. The learned Single Judge also relied on the evidence of D.W.2 Nandlal, examined by the appellants. He has found that Nandlal had purchased the land in dispute and lost all his title to the land in dispute after having received full consideration for it. The learned Single Judge also held that Nandlal was the witness of the appellants and, therefore, they were bound by his testimony. In other words, the conclusions of the learned Single Judge were that the appellants were tress – passers and they could not interfere with the possession of Makardhwaj or his legal representatives by force. The decision of the trial Judge was confirmed by the learned Single Judge.

       5. During the argument an application u/O XLI rule 27 of the C.P.C. was filed by the appellants and they wanted to adduce an evidence of Panch – Faisla at appellate stage. The learned Single Judge found that the Panch – Faisla was not binding on the respondents under any law. It was also found that the facts stated in the Panch – Faisla, on the basis of which the said Panch – Faisla was made, were already on record by way of document – Ex. D – 1 and sworn testimony of Nandlal (D.W.2). In view of the above finding recorded by the learned Single Judge, the application u/O XLI rule 27 of the Code of Civil Procedure was rejected by him.

       6. In this appeal, the learned counsel for the appellants, Shri K.S. Wadhwa, tried to argue that the learned Single Judge has wrongly rejected the application u/O XLI rule 27 of the C.P.C. we find no merit in this contention. The learned Single Judge has rightly held that Panch – Faisla was not binding on the respondents. Moreover, the Panch – Faisla was not a new material because testimony of D.W.2 Nandlal and Ex. D – 1 forming the basis of Panch – Faisla were already on record. It is well established that the Court has discretionary power to accept or reject an application u/O XLI rule 27 of the C.P.C. The learned Single Judge has considered the matter of admission of further document u/O XLI rule 27 and exercised his discretion against the appellants. The learned counsel was unable to satisfy us that there was any infirmity in the judgment of the learned Single Judge, rejecting the application u/O XLI rule 27 of the C.P.C. Appeal dismissed.