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Regular Second Appeal No. 123 of 1949, decided on 8^th January 1950.

S. 107 and O. 41, r. 27 Document not filed with plaint‑Not even relied on‑Document was within knowledge of plaintiffs and they had ample oppor tunity to produce it at proper stage‑No explanation forth coming for delay‑Lack of diligence‑Additional evidence not allowed.

From the point of view of the appellants, the fresh evi dence, sought to be produced, is of great importance. But this circumstance alone is not sufficient to entitle the appellants to ask the Court to exercise its powers under Order XLI rule 27 (b), Civil P. C. in their favour. The document was all along within the knowledge of the plaintiffs and they had ample opportunity to produce it at the proper stage. As already observed, no explanation has been offered for not producing it at that stage, although the suit remained pending for nearly two years. It is, therefore, obvious that the plaintiffs and their counsel betrayed gross lack of diligence in conducting the suit.

Jawala Singh v. Jagdish Singh A I R 1941 Lah. 144, Sadhu Singh v. Mst. Harnaman A I R 1946 Lah. 444, Dasaundhi Khan v. Rabian Bibi A I R 1935 Lah. 648, Parsotim Thakur v. Lal Mahar Thakur I L R 1931, 10 Pat. 654 (P. C.) and Kessowji Issur v.. Great Indian Peninsula Railway I L R (1907) 31 Born. 381 (P. C.) ref.

B. Z. Kaikaus for Appellant

Yaqub Ali Khan and M. A. Khan for Respondents.

‑This is a plaintiffs' appeal against the appellate decree of the Senior Subordinate Judge. Sialkot, dated 17th February 1949, confirming the decree of the Additional Subordinate Judge 1st Class, Sialkot, dated 25th October 1948.

The facts of the litigation which have led to this appeal may be stated as follows. The appellants instituted a suit' against the respondents for possession of land measuring 5 marlas, alleging that they had encroached on the site in dispute, which forms part of Khasra No. 1753/628. of which they were the owners. It was further alleged that the en croachment was made about two years before the suit. The defendants denied the plaintiffs ownership of field No. 1753/628. They also denied that they had encroached upon any land belonging to the plaintiffs. They further pleaded that the suit was barred by time and that they had been in adverse possession of the land in dispute for more than twelve years. It was also asserted that the plaintiffs were estopped by their conduct from suing. On the pleadings of the parties the learned Additional Subordinate judge framed the following issues : ‑

(1) Are the plaintiffs owners of the site in dispute

(2) Is the suit within time

(3) Have defendants been in continuous adverse posses sion of the suit property for more than 12 years before the suit

(4) Are plaintiffs estopped by their conduct from the present suit

Issues Nos. 1 and 2 were decided against the plaintiffs and issues Nos. 3 and 4 against the defendants. In view of his findings on Issues Nos. 1 and 2, the learned Additional Sub ordinate Judge dismissed the plaintiffs' suit. Against the decree of the Additional Subordinate Judge the plaintiffs preferred an appeal in the Court of the Senior Subordinate Judge. Besides challenging the correctness of the findings of the Additional Subordinate judge on issues Nos. 1 and 2, the plaintiffs com plained before the Senior Subordinate Judge that the Additional Subordinate judge had not properly and judicially exercised his discretion in refusing to receive in evidence copy of the jamabandi of the year 1945‑46, and asked the Senior Subordinate Judge to admit the document as additional evi dence under Order L rule 27, Civil P. C. The learned Senior Subordinate Judge not accede to this request and upholding the conclusions of the learned Additional Sub ordinate Judge on the merits dismissed the appeal. The plaintiffs have now come up in second appeal to this Court.

The learned counsel for the appellants has repeated the argument that the learned Additional Subordinate judge ought not to have refused to admit in evidence copy of the jamabandi of 1945‑46 and that I should now admit the document under Order LXI, rule 27, Civil P. C. The relevancy of the jamabandi is that it proves that the plaintiffs are recorded as owners of field No. 1753/628. It is, however, admitted that the copy was not produced with the plaint, and I find from the list of reli ance that the document was not even relied upon by the plaintiffs. The suit was instituted on the 8th August 1946 and issues were framed on the 14th March 1947. The plaintiffs closed their evidence on the 15th April 1948 and the defendants on 19th August 1948. The case was then adjourned for orders to 18th October 1948. On that date an application was put in praying that the jamabandi of 1945‑46 may be admitted in evidence. The prayer was rejected on two grounds, firstly, that the document was not included in the list filed under Order VII, rule 18, and, secondly, that no satisfactory reason was given for its non‑production before the plaintiffs closed their case. Even before me the learned counsel for the appel lants is unable to give any satisfactory explanation for the non -production of the document at the proper stage. He, however, contends that in view of the importance of the document, I should admit it under Order XLI rule 27 (b) Civil P. C. As stated above, the document, if admitted in evidence, will prove the plaintiffs' ownership of field No. 1753/628, since there is no evidence to rebut the presumption arising from the entries in the jamabandi. Learned counsel for the respondents contends that in the circumstances of this case it would not be proper for me to admit the jamabandi as additional evidence. In support of his contention he has cited Jawala Singh v. Jagdish Singh 1941 A I R (Lah.) 144, Sadhu Singh v. Mst. Harnaman 1946 A I R (Lab.) 444 and Dasaundhi Khan v. Rabbian Bibi 1935 A I R (Lab.) 648. In the first two rulings the additional evidence was produced for the first time in the High Court and the learned judges refused to admit it under Order XLI, rule 27, Civil P. C., mainly on the ground that it had not been explained why the document was not' produced at the trial. The learned judges further observed that the parties cannot be allowed at the appellate stage to fill gaps in their case by calling additional evidence. The facts of Dasaundhi Khan v. Rabian Bibi A I R 1935 Lah. 648 are on all fours with the facts of the present case. In that case one of the disputed facts was whether the property was ancestral or self‑acquired. After the plaintiffs had closed their case they asked for permission to produce a certified copy of the pedigree‑table of the proprietors of the village prepared at the Settlement of 1892‑93, together with the foot‑note appearing thereunder. The learned Subordinate Judge, however, declined to admit the document at that stage. On the material before him the learned Subordinate Judge came to the conclusion that only a portion of the land in dispute was ancestral. Against the decree of the Subordinate Judge the plaintiffs preferred a first appeal to the High Court. The learned counsel for the appellants conceded that he could not assail the finding of the learned Subordinate judge as to the ancestral character of the land, on the material on the record, but he asked the Court to admit the pedigree‑table prepared at the Settlement of 1892‑93 as additional evidence under Order XLI, rule 27, Civil P. C. His first contention was that the learned Subordinate judge had erroneously declined to admit it in evidence. After referring to the fact that the application for the admission of fresh evidence was made to the Subordinate Judge five days after the conclusion of the arguments, their Lordships observed :‑

"The learned Subordinate Judge rejected the applica tion remarking that no document could be taken after arguments had been heard. It has not been shown that the plaintiffs, with the exercise of due diligence, could not have obtained a copy of this document at the proper stage, nor has any other reason been shown for its non -production before they closed their case. In these circumstances, I have no doubt that the learned Sub ordinate judge acted rightly in declining to receive it in evidence".

It was contended by the learned counsel that the learned Judges should exercise their own discretion and admit the document as additional evidence under Order XLI rule 27, Civil P. C. The learned Judges, in order to satisfy them selves whether the document had any bearing on the point in dispute and to see whether they should exercise their powers under Order XLI rule 27., Civil P. C. proceeded to examine the document and came to the conclusion that, even if admitted in evidence, the document would afford to help to the appellants. Having come to that conclusion, they did not consider it necessary to go into the question whether it was a fit case for the exercise of their discretion under Order XLI rule 27 (b), Civil P. C. In the present case also, as stated above, it cannot be held that the Additional Subordinate judge did not properly exercise his discretion in declining to admit copy of the jamabandi of 1945‑46 in evidence. The question now remains to be considered is whether should exercise my powers under Order XLI rule 27, Civil P. C. It has to be conceded that from the point of view of the appellants, the fresh evidence, sought to be produced, is of great importance. But this circumstance alone is not sufficient, in my opinion, to entitle the appellants to ask me to exercise my powers under Order XLI rule 27 (b), Civil P. C., in their favour. The document was all along within the knowledge of the plaintiffs and they had ample opportunity to produce it at the proper stage. As already observed, no explanation has been offered for not producing it at that stage, although the suit remained pending for nearly two years. It is, therefore, obvious that the plaintiffs and their counsel betrayed gross lack of diligence in conducting the suit. In Parsoam Thakur v. Lai Mohar Thakur I L R (193L) 10 Pat. 654 (P C), which is the leading authority on the point, their Lordships of the Privy Council, while expressing their views about the admission of additional evidence by the Patna High Court in appeal, observed :‑‑

"If the respondents desired to give evidence as to the thumb‑impression, they had ample opportunity to do so in the trial Court. The provisions of section 107 of the Civil Procedure Code, as elucidated by Order XLI rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch. up the weak parts of his case and fill up omissions in the Court of appeal".

Their Lordships further observed:-

"Turning to the provisions of rule 27, clause (1) (a) has no application in the present case. Under (1) (b) it is only where the Appellate Court 'requires' it (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub‑clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'. This is laid down in the most positive terms by Lord Robertson in Kessowji Issur v. Great Indian Peninsula Railway I L R (1907) 31 Hom. 381 (P C). He was dealing with the words of section 568 of the Code of 1882, but they are substantially the same as those of Order XLI, rule 27 of the present Code. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by rule 27 (2) to record its reasons for so doing, and under rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Their Lordships regret to find that, so far as the record discloses, none of these conditions was complied with in the present case''.

On examining the evidence, as it stands, I have not been able to discover any inherent lacuna or defect. It is true that an important piece of evidence was left out by the appellants. but for this they themselves or their counsel is entirely to blame; and I feel that I would not be exercising my powers under Order XLI, rule 27, Civil P. C. legitimately, if I admitted the additional evidence in order to enable the appellants to patch up the weak parts of their case and fill up omission" in this Court. I am therefore, unable to accede to the request of the learned counsel for the appellants that I should admit copy of the jamabandi as fresh evidence. The appellants produced oral evidence to prove their owner ship of the land in suit, but that evidence has been rejected by both the Courts below. There being no reliable evidence on the record in support of issue No. 1, it was, in my opinion, rightly decided against the appellants.

The appeal is liable to be dismissed on another ground also. There is the concurrent finding of the learned Courts below that the appellants have failed to prove that the site in dispute falls within field No. 1753/628. To prove this crucial fact the appellants relied on a report of the Girdawar, a copy of which, Exh. P. 2, was placed on the record. The learned trial Court excluded this report from consideration for reasons which were accepted by the learned Senior Subordinate Judge as sound. No further attempt appears to have been made by the appellants to prove this highly material fact, The learned counsel for the appellants drew my attention to the fact that his clients had applied to the trial Court to inspect the spot. The record shows that this request was also made at a belated stage, after the arguments had been heard and the case was adjourned for orders. The Court, therefore, rejected the prayer of the appellants. The appellants applied in the lower appellate Court for the first time that a local commis sioner may be appointed in order to carry out the measure ments. This prayer was also rejected as no such attempt was made by the appellants while the case was pending in the trial Court. It seems that the appellants had shown no diligence in conducting their case, and I am of opinion that the learned lower appellate Court was right in holding that they were not entitled to any indulgence. The position, as it stands, is that there is no proof of the fact that the site in dispute falls within field No. 1753/628, and therefore, even if the copy of the jamabandi of 1945‑96 is admitted under Order XLI rule 27, Civil P. C., it would not materially advance the case of the appellants.

There is no force in this appeal and it is hereby dismissed with costs.

K. M. A. Appeal dismissed.

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