Balbir Singh & Ors. v. Dayal Kaur & Ors.

Judgment

1. The appellants are seeking permission under Order 41 Rule 27 C.P.C. to place on record additional evidence on the ground

that learned first Appellate Court has denied the permission to the appellants to produce additional evidence in first appeal.

2. I have heard learned Counsel for the parties and perused C.M. No.3503-C of 1987 and -2- RSA No.3037 of 1987 (O&M) the record.

3. By way of present application, appellants seek permission of this Court to produce on record copy of the family register to prove relationship with deceased Smt. Ram Kaur enabling the plaintiffs to prove that they are the persons who have inherited the estate of Smt. Ram Kaur and have locus to file and contest the present suit.

4. Rule 27 of Order 41 C.P.C. reads as under:- “27. Production of additional evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

5. Parties can be permitted to produce additional evidence under Rule 27 of Order 41 C.P.C. only in three contingencies C.M. No.3503-C of 1987 and -3- RSA No.3037 of 1987 (O&M) provided under Rule 27:- (i) Learned trial Court refuses to admit the evidence which ought to have been admitted; (ii) Party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge; (iii) Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment.

6. First of all, this Court makes it clear that this Court does not require any document to be produced to enable this Court to pronounce judgment. Undisputedly, learned trial Court never refused to admit the alleged evidence nor alleged evidence was ever sought to be produced before the learned trial Court. Now let me examine as to whether third ingredient of Rule 27 of Order 41 C.P.C. is available to the appellants? Perusal of the application shows that appellants have not pleaded anywhere in the application that despite of due diligence the said evidence was not within their knowledge at the time of trial of the suit, hence, this ground is also not satisfactorily explained. In view of the above, case of the appellants does not fall in either of the ingredient of Rule 27 of Order 41 C.P.C.

7. Civil miscellaneous application is accordingly dismissed. RSA No.3037 of 1987 (O&M)

1. Present second appeal is filed by the plaintiffs/appellants challenging judgment and decree dated 14.3.1986 passed by learned trial Court/Sub-Judge, IInd Class, Fatehgarh Sahib and judgment and C.M. No.3503-C of 1987 and -4- RSA No.3037 of 1987 (O&M) decree dated 23.5.1987 passed by learned first Appellate Court/Addl. District Judge, Patiala. Both the Courts below have dismissed the suit for possession filed by plaintiffs/appellants vide impugned judgments and decrees.

2. The contentions of the plaintiffs in plaint are that Smt. Ram Kaur, widow of Hira Singh was having only life interest in the property in dispute; Smt. Ram Kaur had no right or authority to transfer the property in dispute in favour of defendants/respondents; Defendants played fraud with Smt. Ram Kaur by getting a sale deed executed in their favour on 30.4.1975; Sale deed in question dated

30.4.1975 is without consideration and the outcome of fraud and misrepresentation and is also not for legal necessity; Plaintiffs being legal heirs of Smt. Ram Kaur are entitled to seek possession from the defendants.

3. Defendants have refuted contention made by plaintiffs. Defendants have taken legal pleas about the maintainability of the suit and also strongly pleaded that plaintiffs are not the legal heirs of Smt. Ram Kaur, hence, have no locus to file the present suit. Defendants also contended that sale deed in question is not the outcome of fraud and misrepresentation and it was rightly executed by Smt. Ram Kaur; Smt. Ram Kaur was duly authorized and had every right to make transfer of her property and she had after receiving the consideration thereof transferred the properties in question in favour of the defendants.

4. Both the Courts below have dismissed the suit of the plaintiffs vide impugned judgments and decrees by returning findings C.M. No.3503-C of 1987 and -5- RSA No.3037 of 1987 (O&M) of fact that plaintiffs could not prove themselves to be legal heirs of Smt. Ram Kaur, deceased, hence, have no locus or right to seek possession from the defendants, who are in possession of the property in dispute vide sale deed dated 30.4.1975.

5. Mr. F. S. Virk, learned Counsel for the appellants vehemently argued that both the Courts below have misunderstood the judgment of Hon’ble Apex Court in the matter of Satish Kumar vs. Surinder Kumar reported in AIR 1970 S.C. 833. According to learned Counsel for the appellants Award in question is not a mere waste paper and has some legal effect. According to Mr. F.S. Virk, learned Counsel for the appellants, it is not the case of enforcement of the Award but is a case where award is required to be seen to find out as to whether Smt. Ram Kaur was sole absolute owner or was having only life interest.

6. Mr. G.S. Poonia, learned Counsel for the respondents stated that be as the case may be question of locus is important and defendants can only be dispossessed by person having interest in the property in dispute and the person rank outsider cannot dispossess the defendants.

7. Having heard learned Counsel for the parties and having perused the record, in the opinion of this Court, the following substantial questions of law are required to be formulated for just and fair adjudication of this case:- i) As to whether plaintiffs are legal heirs of Smt. Ram Kaur, if not, as to whether plaintiffs being rank outsider can maintain suit for C.M. No.3503-C of 1987 and -6- RSA No.3037 of 1987 (O&M) dispossession of the defendants in view of Section 110 of the Evidence Act? ii) If answer to the question No.(i) is in favour of the plaintiffs then as to whether Smt. Ram Kaur was having only life interest in the property in dispute vitiating sale deed in question?

8. Substantial Question of Law No.1:- To resolve the controversy, the main question involves is as to whether plaintiffs have any locus to dispossess the defendants or in other words, whether it is sine qua non for the plaintiffs to prove the right or title over the property in dispute before suing the defendants for seeking possession.

9. Section 110 of the Evidence Act reads as under:- “110. Burden of proof as to ownership - When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

10. From the perusal of Section 110 of the Evidence Act, I have no doubt in my mind to hold that in a suit for possession plaintiffs have to prove that in fact they are the owners of the property in dispute and defendants are not the owners of the property in dispute. In other words, person in possession can be dispossessed from the immovable property only by the lawful owner thereof. To maintain suit for possession, right or title of the plaintiffs is required to C.M. No.3503-C of 1987 and -7- RSA No.3037 of 1987 (O&M) be proved.

11. Both the Courts below, having perused the record, have returned the findings of fact that plaintiffs could not prove their relationship with Smt. Ram Kaur, deceased, and could not prove that they have inherited any right or title from Smt. Ram Kaur. Learned Counsel for the appellants could not point out any perversity or illegality in the findings recorded by both the Courts below on this aspect. Learned Counsel for the appellants vehemently argued that perusal of the Award dated 15.2.1958 would show that after the death of Smt. Ram Kaur property would be inherited by Ram Rattan and Rabbi Ram. Since plaintiffs are the legal heirs of Ram Rattan and Rabbi Ram, hence, in view of the Award dated 15.2.1958, plaintiffs would have inherited property. Hence, they are entitled to maintain suit for possession against the defendants. Learned Counsel for the appellants vehemently placed reliance on the judgment of the Hon’ble Apex Court in the case of Satish Kumar (supra) and argued that even if award is not made rule of the Court, its contents can be read to find out the locus of the plaintiffs.

12. I have carefully examined the judgment of the Hon’ble Apex Court in the matter of Satish Kumar (supra). The question involved before the Hon’ble Apex Court was as to whether arbitration award creating or extinguishing the right requires registration thereof under Section 17(1)(b) of the Registration Act even if it is not made rule of the Court. The Hon’ble Apex Court in the matter of Satish Kumar (supra) has held that an arbitration award creating or extinguishing any right over the immovable property of more than C.M. No.3503-C of 1987 and -8- RSA No.3037 of 1987 (O&M) Rs.100/- value requires registration irrespective of the fact that it is made or not made rule of the Court. The Hon’ble Apex Court further held that if award requires registration and not registered then same cannot be read in evidence in view of Section 49 of the Registration Act. The Hon’ble Apex Court has further clarified that Section 17 of the Registration Act does not concern itself with the enforcement of right, this section is attracted as soon as its requirements are satisfied. Award which is neither registered nor made rule of the Court cannot be enforced. In my humble opinion, the Hon’ble Apex Court in the matter of Satish Kumar (supra) nowhere held that contents of unregistered award can be read to find out intention of the award even if it is not made rule of the Court. Since award in question is neither registered nor was made rule of the Court, hence, the same cannot be read in evidence in view of Section 49 of the Registration Act and cannot be enforced for want of valid decree.

13. In view of the above, substantial questions of law are answered against the plaintiffs and I find that plaintiffs could not prove their title or entitlement over the property in dispute, hence, have no locus to maintain suit for possession against the defendants in possession.

14. Since, substantial question of law No.(i) is answered against the plaintiffs/appellants, hence, substantial question of law No.(ii) needs no answer.

15. In view of the above, the appeal is devoid of merit. Hence, the appeal is dismissed with no order as to costs. C.M. No.3503-C of 1987 and -9- RSA No.3037 of 1987 (O&M) 07th April, 2010 ashish ( ALOK SINGH ) JUDGE