Hari Singh & Anr. v. Birma

Present: Mr. Ashwani Talwar, Sr. Advocate with Ms. Pra(ksha Sharma, Advocate for the appellants. **** DEEPAK GUPTA, J. (ORAL) Trial Court record has since been received. Applica(on bearing CM-130-C-2026 has been moved by the appellants under Order 41 Rule 27 CPC seeking permission to lead addi(onal evidence. Learned counsel for the par(es have been heard on the appeal as well as on the said applica(on. Background of the Case

2. Defendants No.3 and 4 of the suit are before this Court in the present appeal assailing the concurrent findings recorded by the Courts below. The suit for a decree of permanent injunc(on filed by the plain(ffs– respondents No.1 to 4, namely Smt. Birma( and others, was partly decreed by the learned trial Court vide judgment and decree dated 30.05.2016. The appeal preferred by defendants No.3 and 4 was dismissed by the learned First Appellate Court on 18.02.2022, thereby affirming the findings of the trial Court.

3. The plain(ffs pleaded that they were owners in possession of land measuring 38 kanal 8 marla, as detailed in the head-note of the plaint. It was asserted that their predecessors had been cul(va(ng the land YOGESH MEHTA 2026.01.15 17:27 I attest to the accuracy and integrity of this document (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:5)(cid:6)(cid:10)(cid:6)(cid:6)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) (cid:1)(cid:1)(cid:1)(cid:1)(cid:16)(cid:6)(cid:17)(cid:1) without payment of rent or batai. According to the plain(ffs, the revenue entries showing cul(va(on of defendants over 17 kanal 12 marla of land were factually incorrect. On their applica(on, the cul(va(on entries were corrected by the revenue authori(es a?er spot inspec(on. It was further pleaded that the defendants had no right or interest in the suit property and were threatening to dispossess the plain(ffs forcibly, which constrained them to file the present suit for permanent injunc(on.

4. The suit was contested by the defendants by asser(ng that defendant No.1 – Jaidev Inder Singh had executed an agreement to sell dated 04.08.2011 in favour of defendant No.4 – Hari Singh, and that possession of the suit property had been delivered pursuant thereto. It was pleaded that defendants were in actual and physical possession of the en(re suit land and that correc(on of khasra girdawari entries in favour of the plain(ffs was illegal. Dismissal of the suit was sought. Findings of the Courts Below

5. Upon framing of issues and appraisal of evidence, the learned trial Court recorded a finding that defendant No.1 was a co-sharer in the suit land. However, it was further found that the plain(ffs were in actual cul(va(ng possession of 17 kanal 12 marla of land. Consequently, the defendants were restrained from interfering in the possession of the plain(ffs over the specifically described killa numbers, except in due course of law. The said findings were affirmed by the learned First Appellate Court, which independently re-appreciated the evidence and found no infirmity in the conclusions drawn by the trial Court. Submissions in Appeal and Addi(cid:27)onal Evidence Applica(cid:27)on

6. Assailing the concurrent findings, learned Senior Counsel for the appellants contends that Munshi son of Harphool, father of appellant YOGESH MEHTA 2026.01.15 17:27 I attest to the accuracy and integrity of this document (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:5)(cid:6)(cid:10)(cid:6)(cid:6)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) (cid:1)(cid:1)(cid:1)(cid:1)(cid:16)(cid:18)(cid:17)(cid:1) Hari Singh, was recorded to be in possession of the en(re suit land measuring 38 kanal 8 marla in the jamabandi for the years 1974-75 and 1984-85. To substan(ate this plea, the appellants seek to place on record cer(fied copies of the said jamabandis by way of addi(onal evidence. Prayer is also made to take on record applica(ons and reports rela(ng to demarca(on allegedly conducted on the orders of the Tehsildar, Madlauda. Considera(cid:27)on and Analysis

7. This Court finds no merit either in the appeal or in the applica(on filed under Order 41 Rule 27 CPC.

8. It is not in dispute that defendant No.1 – Jaidev Inder Singh is a co-sharer in the suit property. However, the suit in ques(on is one for permanent injunc(on, where the determina(ve factor is actual possession on the date of ins(tu(on of the suit, and not (tle alone.

9. Though jamabandis for the years 1974-75 and 1984-85 record possession of Munshi, the Courts below have rightly relied upon subsequent records, which reflect the plain(ffs to be in cul(va(ng possession of 17 kanal 12 marla of land. The correc(on of khasra girdawari entries in favour of the plain(ffs was proved by documentary evidence, including rapat Roznamcha Ex.P-4 and Ex.P-5, prepared a?er spot inspec(on by the revenue authori(es. These correc(ons were never set aside by any competent authority.

10. Significantly, appellant Hari Singh (defendant No.4) claims possession on the basis of an agreement to sell dated 04.08.2011 allegedly executed by defendant No.1. The Courts below have concurrently found that no sale deed was ever executed pursuant to the said agreement, nor was any suit for specific performance filed. It is seHled law that an agreement to sell does not confer any right, (tle or interest in immovable YOGESH MEHTA 2026.01.15 17:27 I attest to the accuracy and integrity of this document (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:5)(cid:6)(cid:10)(cid:6)(cid:6)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) (cid:1)(cid:1)(cid:1)(cid:1)(cid:16)(cid:19)(cid:17)(cid:1) property, nor does it by itself confer lawful possession. The appellants, therefore, failed to establish any independent or legally enforceable right to remain in possession. Applica(cid:27)on under Order 41 Rule 27 CPC

11. The scope of Order 41 Rule 27 CPC is well circumscribed. Addi(onal evidence at the appellate stage can be permiHed only when: a) The trial Court has wrongly refused to admit evidence; or b) The evidence was not within the knowledge of the party or could not be produced despite due diligence; or c) The appellate Court requires such evidence to pronounce judgment.

12. In the present case, learned counsel for the appellants fairly concedes that the proposed demarca(on applica(ons and reports were never produced before the trial Court and that Annexure A-6 was procured subsequent to the decisions of the Courts below. Such evidence cannot be permiHed to fill up lacunae or to re-open factual findings already recorded a?er full trial.

13. As regards jamabandis of the years 1974-75 and 1984-85, even otherwise, they have liHle relevance for determining possession at the (me of filing of the suit, par(cularly when subsequent records relied upon by the Courts below show possession of the plain(ffs. Therefore, none of the statutory requirements of Order 41 Rule 27 CPC are sa(sfied.

14. The applica(on for addi(onal evidence is thus wholly misconceived and deserves dismissal. Conclusion

15. The concurrent findings of fact recorded by the Courts below are based on proper apprecia(on of oral and documentary evidence. No perversity, illegality or misreading of evidence has been demonstrated so as YOGESH MEHTA 2026.01.15 17:27 I attest to the accuracy and integrity of this document (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:5)(cid:6)(cid:10)(cid:6)(cid:6)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) (cid:1)(cid:1)(cid:1)(cid:1)(cid:16)(cid:8)(cid:17)(cid:1) to warrant interference by this Court.

16. Consequently, the applica(on under Order 41 Rule 27 CPC as well as the present appeal are dismissed.

14.01.2026 Yogesh (DEEPAK GUPTA) JUDGE Whether speaking/reasoned:- Whether reportable:- Yes/No Yes/No YOGESH MEHTA 2026.01.15 17:27 I attest to the accuracy and integrity of this document