The single judge bench of Justice Nidhi Gupta of the Punjab and Haryana High Court in the case of Kaka Singh Vs Pal Singh & Ors held that the discretion has been granted to the Appellate Court to determine whether such evidence is necessary to enable it to pronounce judgment.
BRIEF FACTS
The factual matrix of the case is that the plaintiff has filed the civil suit for the declaration and joint possession. It was alleged that the suit property is joint Hindu property of the parties and they are coparceners. It was further alleged in the suit that Jangir Singh, father of the parties was Karta of the families and therefore, though Jangir Singh was not entitled to, yet had suffered a decree in favor of present petitioner/defendant no.1 to the extent of 1/3rd share of the land. The plaintiff/respondent argued that the verdict should be overturned on the basis of his rights because he learned of the ruling only after Jangir Singh's passing and the mutation was authorised illegally. Thereafter, the written statement was filed and it was alleged that the property is not an ancestral property and a self-acquired property. Furthermore, the learned Sub Judge Ist Class held that the property in dispute is Hindu family ancestral coparcenary property and plaintiff has right by birth and Jangir Singh was karta of the entire property and he could not have transferred the entire land in favour of petitioner/defendant no.1 and could only transfer his share.
During the pendency of the appeal before the first appellate court, the application under Order 41 Rule 27 CPC to prove the mutation of inheritance and for producing certified copy of the abovesaid mutation as additional evidence.
The learned counsel appearing on behalf of the petitioner has contended that the first appellate court could not have permitted to produce the additional evidence, as it was required to give a decision on the basis of the material before it. It was further submitted that it is a clear violation of Rule (v) and (vi) of Chapter 9 of High Court Rules and Orders. It was further contended that the property was acquired by the parties' father through Chanan Singh, therefore it is improbable that the respondent/plaintiff was unaware of the mutation. As a result, the filing of the current application was an abuse of the legal system, and it should have been rejected. It is further argued that the Regular Second Appeal was remanded back to be decided only on the basis of evidence on record, and the plaintiff/respondent cannot now be allowed to profit from his own mistake. He was required to produce the relied-upon evidence/mutation in proper form at the relevant time and not just in the form of excerpt Ex.PX because he was fully aware of the mutation and that it had passed to his father.
The learned counsel appearing on behalf of the petitioner relied upon the judgment titled Union of India v Ibrahim Uddin and another (2012) 8 SCC 148.
The learned counsel appearing on behalf of the respondent has contended that in accordance with law, which of necessity would imply and would not preclude the respondent/plaintiff from placing on record anything and everything that is necessary for proper adjudication of the matter. It was further submitted that the first appellate court has committed no error in allowing the application under order 41 rule 27 of the CPC.
The learned counsel further relied upon the judgements titled Gurdial Singh and others v Mam Chand and others, Arshnoor Singh v Harpal Kaur, and Sanjay Kumar v Sita Devi.
COURT’S OBSERVATION
The hon’ble court held that discretion has been granted to the Appellate Court to determine whether such evidence is necessary to enable it to pronounce judgment. This view of the Hon’ble Supreme Court has been followed by this Court in Gurdial Singh’s case (supra). In the present case, as has been noticed above, the First Appellate Court has opined that the evidence has probative value, and therefore, has exercised its discretion as thought fit. As such, nothing more needs to be seen. Nonetheless, it cannot be disputed that the core issue requiring consideration in the present case is to determine whether the suit property is ancestral joint Hindu coparcenary property of the parties? Needless to say, in the determination of such an issue the mutation of inheritance of Chanan Singh ancestor of the present parties would have decisional bearing. The issue is intrinsic to the dispute in hand and the mutation is imperative for proper adjudication of this issue. In fact, perusal of the record shows that though the trial Court had decided this issue as noticed above, the matter was remanded back to the First Appellate Court only because it had failed to decide whether property is coparcenary property or not. In the court’s view, this evidence in form of mutation is a valuable piece of evidence to arrive at a proper decision regarding the dispute and issues at hand. As such there is no error in the impugned order passed by the learned First Appellate Court in permitting the respondent/plaintiff in producing the mutation in question as additional evidence.
CASE NAME- Kaka Singh Vs Pal Singh & Ors
CITATION- CR No.8393/2018(O&M)
CORUM- Justice Nidhi Gupta
DATE- 24.11.22
Read Judgment ;
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