Jai Narain Pandey Vs Lallan Tiwari and Others

T.S. Misra, J.@mdashThis is a defendant''s appeal arising out of a suit for declaration of sirdari rights in respect of the plot in dispute. The plaintiff alleged that the defendant, Jai Narain Pandey was a permanent lessee of the plot in dispute who settled the land with the plaintiff and his father. Consequently he was recorded as an occupant in the cultivatory possession in the crucial years of 1356 and 1359-F and became sirdar. He further alleged that right, title and interest of the landholder extinguished on the enforcement of U. P. Act No. XX of 1954. However, as the names of the plaintiffs had been omitted from the record for sometime past, he filed the suit for declaration of his rights. This suit was contested by Jai Narain Pandey on a variety of grounds, inter alia, refuting all the allegations made by the plaintiff and asserting that he was a permanent lessee with transferable rights and had become Bhumidhar on the enforcement of U. P. Act No. I of 19,51 and is in possession of the plot in dispute in his own right. The trial court held that the plaintiffs were not sirdars and the suit was barred by time. On these findings the suit was dismissed. Against that decision the plaintiffs preferred an appeal. The appellate court below reversed the finding recorded by the trial court and allowed the appeal and decreed the suit. The defendant has now come to this Court in second appeal.

2. It appears that before the appellate court below the plaintiffs filed certified copies of the extracts of Khasra for the years 1354, 1355, 1357 and 1358 Fasli. The application filed by the plaintiffs was supported by an affidavit of Kanhaiya Lal, who is respondent No. 2 in this appeal. He stated in his affidavit that the papers sought to be filed were not within his knowledge despite exercise of due diligence and as such the certified copy thereof could not be obtained. He further alleged that those papers were relevant and necessary for the proper decision of the case. No counter-affidavit rebutting these allegations was filed by the plaintiff appellant. He simply filed an objection to the effect that the applicants had no right to file the papers under Order 41, Rule 27 C. P. C. and no sufficient ground had been disclosed for admitting those papers in appeal The fact that the present respondents in spite of due diligence could not have the knowledge of those papers was, however, not repudiated. The appellate court below admitted those papers in the interest of justice subject to payment of Rs. 10/- as costs. This costs of Rs. 10/- was paid to the defendant as would appear from the endorsement made on the application 16-Ga. The learned counsel for the defendant-appellant has urged that the appellate court below erred in admitting the said papers as additional evidence under Order 41, Rule 27 Civil P. C. inasmuch as the mandatory requirements of that provision of law were not complied with nor the conditions for admitting those papers were in existence. In support of his contention be placed reliance on the two decisions of the Supreme Court viz., Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 and Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, .

In Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 it was laid down that the discretion given to the Appellate Court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non-existent

3. Similarly in the case of the Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, it was held that under Order 41, Rule 27 the Appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the Appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the Appellate Court is empowered to admit additional evidence.

4. In Sub-rule (1) of Rule 27 of Order 41, CPC Clause (b) has been added by this Court which reads as follows:--

"(b) the evidence sought to be adduced by party to the appeal, is evidence which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made."

5. While examining the present case in the light of the principles laid down by the Supreme Court in the aforesaid two cases, we have to see, whether the discretion exercised by the Appellate Court below was a judicial one circumscribed by the limitation specified in that rule. One of the conditions prescribed by Rule 27 is that the additional evidence was not within the knowledge of the party seeking to produce the same in spite of the exercise of due diligence. In the present case while moving an application for admission of certain documents as additional evidence under Order 41, Rule 27, the present respondent had deposed on oath that the documents in question were not within his knowledge in spite of exercise of due diligence. This fact as pointed out earlier was not repudiated. The documents sought for were found by the Appellate Court below to be relevant documents and in these circumstances, it therefore allowed the documents to be filed in the interest of justice subject to payment of Rs. 10/- as costs. In my opinion the exercise of discretion by the appellate Court below in this behalf was not improper or arbitrary. Moreover the present appellant acquiesced to that order by accepting payment of Rs. 10,00 as costs. If he was aggrieved by that order, he should not have accepted the costs allowed by the Court.

6. The next point urged by the learned counsel for the appellant was that the observation of the appellate Court below to the effect that the entry of 1356-F, is almost sacrosanct is not correct in law. In this connection he placed reliance on a recent decision of the Supreme Court made in the case of Bachan and Another Vs. Kankar and Others, , wherein it has been held that the entry under Sec. 20 (b) (1) of the U. P. Zamindari Abolition and Land Reforms Act, 1950, in order to enable a person to obtain adhivasi rights must be an entry under the provisions of law. Entries which are not genuine cannot confer adhivasi rights. A fictitious entry is one which is not genuine. It is an unreal entry. An incorrect or fabricated entry can be said to be fictitious. An entry which is incorrectly introduced into the records by reason of ill-will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis. Thus, where a Patwari introduces entry by dubious methods, such entry is mendacious.

7. The learned counsel referred me to an observation made by the trial Court in regard to the entry of the year 1356-F. While dealing with the entry in 1356-F, the trial Court has observed, "In this Khasra the names of Lallan, Kanhaiya and Deota Nand are recorded as Dar Shikmi tenants in the remarks in black ink on an annual rent of Rs. 8/-. The entry of 1356-F, which appears to be repetition of the dubious entries in the Khasra of 1353-F, was not repeated after 1356-F." The learned counsel submitted that the trial Court had thus found the entry of Khasra of 1356-F'' as dubious entry and therefore, the entry of 1356-F was not sacrosanct and the appellate Court below should have considered the other evidence and surrounding circumstances to come to the conclusion whether the plaintiff had acquired any right as alleged. To appreciate this argument, it will be necessary to refer to the observations made by the appellate Court below in this behalf. The Appellate Court below had observed "By now it is well known that the entry of 1356-F is almost sacrosanct and unless it is established to be a forgery, the Court has no option but to accept it as correct and give full effect to such entries." The appellate Court below itself had thus made it clear that if the entry was found to be forgery, it would not be taken to be sacrosanct. The appellate Court below consequently considered the entire evidence on record including entries of Khasra from 1355 to 1358-F as also previous entries and came to the conclusion that the plaintiffs were in actual cultivatory possession of the plots in suit prior to the abolition of Zamindari and as such sirdar rights accrued in their favour. A Full Bench of this Court in Swami Prasad v. Board of Revenue, U. P. 1960 RD 133 (All) has held that in case of persons who are recorded in actual occupation as "dar shikmis," it cannot be said that they are occupying the plot on behalf of some other person and therefore such persons, if recorded in actual occupation of the land in 1356-F, become adhivasis. The plaintiffs were recorded in actual occupation in 1356 F and therefore they became adhivasis and subsequently sirdars.

8. No other point was pressed.

9. In the result the appeal fails and is accordingly dismissed with costs.