Judgement

This is a plaintiffs second appeal against the judgment and decree of the learned District Judge of Bilaspur dated 10-5-1951 whereby the appeal of Chaudhari defendant was allowed and the plaintiffs suit for recovery of possession of 8 bighas 15 biswas land was dismissed.

2. The land in suit was sold by the plaintiffs late father Rewalu to Chaudhari defendant under a sale-deed dated 9-6-1997 B, for Rs.225/-. It is in evidence that within about a month of the sale Rewalu died. The present suit was filed by the three sons of Rewalu on 10-5-2003 B. for recovery of the land sold on the ground that it was the joint family property of the plaintiffs and their father and that the sale was made without legal necessity.

3. The trial Court held that the defendant-vendee had failed to prove legal necessity for the sale. The learned District Judge allowed additional evidence to be produced by the defendant-vendee under Order 41, Rule 27, C.P C., and held that the sale was made for the payment of antecedent debts of the plaintiffs late father which were not shown to be illegal or immoral. The first point argued on behalf of the plaintiffs-appellants before me was that the lower appellate Court was not justified in allowing additional evidence to be produced by the defendant-vendee, and the same should be discarded. The additional evidence in question was allowed to be produced to prove certain debts alleged to have been due by Rewalu to two brothers named Nag and Bardu. It appears that the defendant produced himself and six witnesses in the trial Court on 2-6-1949 and wanted further opportunity to prove debts due to Bardu and Jiwanu. No reason was assigned why that evidence was not summoned for that date. However, the Court adjourned the case to 27-7-1949, and thus allowed opportunity to the defendant to produce further evidence. On the last mentioned date the defendant produced three witnesses the evidence of none of whom bad anything to do with the alleged debts of Jiwanu or Bardu. Bardu was also present on that date, but the Court found that transliterations of his books of account had not been filed and that deficiency and penalty were also payable in respect of those entries. Accordingly the case was again adjourned to 8-9-1949 to permit the defendant to produce evidence after removing the said defects. On 8-9-1949 Bardu witness was absent and yet another opportunity was granted to the defendant to produce him and the case was adjourned to 22-10-1949. It was specifically ordered that no further opportunity will be given to the defendant if he failed to produce the witnesses on the adjourned date. On the adjourned date, i.e. on 22-10-1949, it was again found that Bardu witness was absent. It was also found that no step had been taken by the defendant to have him summoned. The Court thereupon did not allow any further opportunity to the defendant to produce him and recorded that the evidence of parties be deemed as closed. There is nothing to show that the defendant himself wanted any further opportunity to produce the witness. It was in this state of the defendant-vendees evidence that the trial Court arrived at the finding that no legal necessity for the sale had been established.

4. Before the lower appellate Court an application was filed on behalf of the defendant-vendee under O.41, R.27, C.P.C., on 28-12-1956. It was alleged in this application that Bardu could not be produced in the trial Court owing to his illness and, therefore, opportunity should be granted to the defendant to produce further evidence. This application was opposed by the plaintiffs but the learned District Judge allowed it on 21-2-1951. The ground on which this application was granted by him was that the trial Court was in error in not taking down the statement of Bardu simply because transliteration of entries in his books of account had not been filed. It may be mentioned here that this was not the only ground on which the statement of Bardu was not taken on 27-7-1949 by the trial Court: it was further found by that Court that the entries sought to be proved by Bardu were inadmissible in evidence without making good the deficiency of stamp duty and penalty. This deficiency and penalty does not appear to have been made good in that Court at any stage.

5. From what has been stated above it is manifest that the defendant himself was responsible for the non-production of evidence in order to prove the debts alleged to be due to Bardu and has brother by the plaintiffs late father. In fact, the trial Court granted the defendant more opportunity than he was entitled to in order to produce that evidence. The learned District Judge, therefore, allowed the defendant to produce additional evidence, not because the Court from whose decree the appeal was preferred had refused to admit evidence which ought to have been admitted, or because the learned District Judge required any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, as required by O.41, R.27, but to fill up the gaps in the defendants evidence. The additional evidence in question was therefore, permitted to be produced by the District Judge contrary to the provisions of Order 41, R.27, and it will have, therefore, to be ignorad and the case decided as if it was non-existent. Arjan Singh v. Kartar Singh, AIR 1951 S.C. 193. It was argued by the learned counsel for the defendant-respondent that the finding of the lower appellate Court as to the sale in question having been made for payment of antecedent debts being a finding of fact, it should not be disturbed in second appeal. Answer to this argument is also to be found in the Supreme Court ruling just cited where it was held that although it was no doubt true that a finding of fact, however erroneous, could not be challenged in a second appeal, a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubt about their genuineness cannot be accepted as a finding that is conclusive in a second appeal.

6. According to my interpretation of the above ruling of their Lordships of the Supreme Court, it is enough that the finding of fact in question was arrived at on additional evidence which ought not to have been admitted. It so happened that tin that case there also existed the additional reason that no consideration was given to certain intrinsic and palpable defects in the additional evidence. Even in the present case there is further reason for discarding the additional evidence let in by the lower appellate Court. That additional evidence, and in fact the entire evidence produced by the defendant-vendee on the issue in question, only proved the existence of certain debts. That evidence does not prove how and when those debts were paid. It does not in any case prove that the Bale in suit had anything to do with the payment of those debts. It is not merely the indebtedness of the plff.s father that would justify the sale: what the defendant should have proved was that the sale was made for payment of antecedent debts. Leaving aside this intrinsic defect in the evidence, the additional evidence in question must be discarded on the ground that it was let in by the lower appellate Court in contravention of the provisions of O.41, R.27, C.P.C. And if that evidence is ignored, the parties are relegated to the position they occupied in the trial Court. The trial Court held that the defendant-vendee had failed to prove legal necessity for the sale. It was sought to be argued on behalf of the defendant-respondent that the sale could be justified on the evidence produced in tie trial Court. It follows, therefore, that the plaintiffs-appellants suit should be decreed.

7. In spite of the above finding, the plaintiffs-appellants suit cannot, however, be decreed in respect of the entire property which was the subject-matter of the sale. It can be decreed in respect of the property which their father was not entitled to sell The plaintiffs allegation was that then father could not sell the property because it was coparcenary property. Under the Hindu law property may be coparcenary property on more grounds than one. The sole ground on which the plaintiffs alleged the property in suit to be joint family property was that it was ancestral property. On this ground the plaintiffs were able to prove only 4 bighas and 17 biswas out of the total of 8 bighas and 15 biswas sold as joint family property. Like the defendant the plaintiffs were also allowed by the lower appellate Court to lead additional evidence under Order 41, R.27, C.P.C., in order to prove that the entire property sold was joint family property. On foot of this additional evidence the learned District Judge held that only 6 bighas and 16 biswas out of the entire property sold was ancestral, and that the plaintiffs were still unable to prove that the remaining 1 bigha 19 biswas answered to that description. According to the arguments put forward by the learned counsel for the plaintiffs-appellants before me I have discarded the additional evidence allowed to be produced by the defendant in the lower appellate Court. By the same token the additional evidence with regard to property allowed to be produced in that Court on behalf of the plaintiffs should also be ignored. Indeed, the learned counsel for the plaintiffs-appellants conceded the point. The plaintiffs suit will, therefore, have to be decreed only in respect of the 4 bighas and 17 biswas of land found by the trial Court as ancestral.

8. The appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. The plaintiffs will have two-thirds of their costs from the defendant-vendee in all the Courts, whilst the defendant-vendee will bear his own costs throughout.

Appeal allowed.