JUDGMENT
M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’) challenging judgment and decree dated 24.9.1982 passed by the Additional District Judge, Bhiwani wherein judgment and decree of Sub Judge, 1st Class, Biwani dated 31.3.1967 has been reversed. The suit filed by the plaintiff-appellants which was decreed by the Sub Judge has been dismissed by the learned Additional District Judge.
2. The plaintiff-appellants who are sons of defendant-respondents 3 and 4 – Ganga Ram and Bhim Sain filed Civil Suit No. 94/572 of 1966 claiming joint possession of the suit land. They challenged the sale deed dated 24.2.1956 executed by defendant-respondents 3 and 4 in favour of defendant-respondents 1 and 2 alleging that it was without consideration and legal necessity. They further claimed that the suit land was ancestral in relation to the plaintiff-appellants and was a joint Hindu coparcenary property. The case set up is that if the sale deed executed on 24.2.1956 was shown to be for consideration then the same had been executed without any legal necessity nor it could be an act of good management. Therefore, it was asserted that the alienation of land by sale deed dated 24.2.1950 was not binding on the plaintiff-appellants.
3. Defendants-respondents 1 and 2-the vendees contested the suit and raised various preliminarily objections concerning its maintainability and they also questioned the locus standi of the plaintiff-appellants. It was further claimed that the suit was barred by time and that there was no cause of action. The assertion of the plaintiff-appellants that they were sons of defendant-respondents 3 and 4 was also disputed. On merit, it was averred that the suit land was sold for consideration and legal necessity. It was further averred that the vendors were having their business in Bihar and the sale was necessitated on account of requirement of funds in the business. It was claimed that after 1957 the vendors had become very rich person. The sale was claimed to be for consideration and legal necessity. As the sale was for benefit of the family, it was binding on the ‘ plaintiff-appellants. However, the defendant-respondents 1 and 2 denied the fact that the nature of the land was ancestral.
4. On the pleadings of the parties, the following issues were framed:-
1. Whether the suit in the present form is not maintainable? OPD
2. Whether the land in suit is ancestral and joint family property qua the plaintiff? OPP
3. Whether the plaintiffs have a locus standi to file the present suit ?OPP
4. If issue No. 3 is proved in favour of the plaintiffs, whether the plaintiffs and proforma defendants are not members of a joint Hindu family? OPD
5. Whether the sale is for legal necessity and consideration? OPD
6. Whether the suit is within time? OPP
7. Whether the suit is collusive? OPD
8. Whether the plaintiff are estopped from bringing the present suit? OPD
9. Relief.
The learned trial Court decreed the suit in favour of the plaintiff-appellants by deciding issue Nos. 1 to 4 in their favour. On issue No. 5 the finding recorded was against the defendant-respondents, whereas issue No. 6 was decided in favour of the plaintiff-appellants. The other issue Nos. 7 and 8 were also determined against the defendant-respondents.
5. Feeling dissatisfied, the defendant-respondents challenged the judgment of the Sub Judge before the Additional District Judge, On 2.1.1971 the appeal of the defendant-respondents was dismissed as having been abated. The defendant-respondents filed R.S.A. No. 308 of 1971 before this Court which was allowed on 27.11.1981. This Court found that the right to sue has since sue survived to the surviving members of the coparcenary in the suit. Therefore, the order of abatement was set aside and the appeal was remitted back to the learned Additional District Judge for decision on merits.
6. The learned Additional District Judge by the impugned judgment and decree has reversed the findings recorded by the Sub Judge and has dismissed the suit of the plaintiff-appellants. On issue No. 2 the learned Additional District Judge has found that oral evidence produced to prove the ancestral character of the land was insufficient and the Sub Judge was absolutely incorrect when he relied upon the excerpts of jamabandies and other revenue record. The Additional District Judge found that in the absence of any cogent documentary evidence, it was not warranted to accept the findings that the property in dispute was ancestral in character. Once the character of the property was not proved ancestral, there was no question of any challenge to the sale of such a property. However, the learned Additional District Judge went further to record findings on issue No. 5 whether there was any valid consideration and legal necessity to sell the suit land. The issue was decided against the defendant-respondents and the findings of the Additional District Judge in this regard read as under:-
“It may be mentioned here that though in their plaint, the plaintiffs pleaded that the sale was without consideration but except this averment in the plaint there is not even a whisper in evidence. The pleading is no proof. It is significant to note here that Ganga Ram proforma defendant appeared as PW 1 but nothing was put to him in this respect. The only other witness is Siri Kishan one of the plaintiffs. He appeared twice but had not said anything that the sale was without consideration. The learned trial court was mainly influenced by the fact that the vendees were unable to tell the exact sale consideration and therefore, returned the finding against the vendees. Another ground taken is that the sale deed had not been produced.
To my mind both these reasons are wholly untenable. The sale as such has not been disputed. As regards the absence of the copy of the sale deed, it is worth nothing that even the plaintiffs did not produce the copy though they challenged the document. Moreover, when there is not even a scintilla of evidence on behalf of the plaintiffs to rebut the version given by the vendees that it was not justified in holding that the sale without consideration. This is more so when there was not even a suggestion to the D.Ws that the sale was without consideration.
The case of the plaintiffs in this respect is also half hearted because they have pleaded that the sale consideration was not spent for the benefit of me family which averment itself would imply that the sale was for consideration. Then there is also a plea in the alternative that in case the sale is proved to be for consideration it is not binding being for legal necessity. Thus, looking to the nature of the pleadings and the absence of rebuttal on behalf of the respondents it is difficult to hold that the impugned sale is without consideration. Thus, the finding of the learned trial court on this aspect of the case is reversed.”
7. The learned Additional Judge also found that the sale was not only for legal necessity but it was an act of good management. Reversing the findings of the Sub Judge, the learned Additional District Judge entered into close analysis of the whole evidence showing that no questions were asked to Ganga Ram one of the vendors who appeared in the witness box. Another factor which has influenced the learned Additional District Judge to reverse the findings of the Sub Judge is the delay in filing the suit because the sale deed was executed on 24.2.1956 and the suit was filed in the year 1966. The view of the learned Additional District Judge in this respect reads as under;-
“… The case set up by the vendee defendants is that vendors sold the suit land as they needed money for their business. The legal proposition is well settled that the vendees are either required to prove that the necessity in fact existed or that they had made bona fide enquiries. They are not required to prove the actual application of the amount. The vendees have led evidence in support of their plea. There is statement of Ramji Lal DW 1 who stated that the Mukhtar of Ganga Ram talked to him about the sale of land and he told this fact to the vendees. He has also stated that the vendors wanted to sell the land as they needed money for their business. Similar statement has
also been made by Munshi Ram DW 2. Sadhu defendant has appeared as DW 3 and Sanwal as DW4 and they have made statements that the vendors needed money for their business.
The learned trial court has relied upon a circumstance appearing in the statement of DW4 who admitted that necessity was not mentioned in the sale deed but even he was not sure on this point. The plaintiffs have also not placed on record the copy of the sale deed for getting any benefit out of this evidence. In any case the absence of recital of necessity in the sale deed by itself is no ground to reject the plea. The necessity though not mentioned in the sale deed can be pleaded and proved during the trial. The plea set up by the vendees also appears to be plausible because the vendors are mahajans by caste which is primarily a business community. Evidence also shows that the sons of the vendor Ganga Ram were in service or were studying at the time of sale. It is admitted by Sri Krishan plaintiff that they had hardly any income from the suit land. He has also admitted that his father sold the land of village Dinond. The plaintiff himself is unable to give the income of Joint Hindu Family. It is in the evidence of the vendee defendants that the suit land was not under the self cultivation of the vendors. In these circumstances, if it was represented to vendees that the land was being sold for money needed for business it could well be believed. Even otherwise the sale of land from which the vendors had no income was for the belief the family and also an act of good management on their part. So far as the other allegation that the vendors were spend thrift and satta gamblers, is concerned, there is hardly any reliable evidence on this point. Ganga Ram one of the vendors has come in the witness box but nothing was put to him. The other vendor to Sadhu D.W. on this point and he denied the same. It was affirmative case of the plaintiff-respondents but except the bald statement of Siri Krishan one of the plaintiffs, there is no other evidence which may prove that the vendors were spend thrift and satta gamblers. The suggestion to Sadhu DW was only with respect to Ganga Ram. The sale which was effected in the year 1956 was challenged in the year 1966. So the plea of the vendee defendants is quite logical that the suit was filed by the plaintiffs being actuated by greed because of the rise in the prices, it is unfortunate that in order to succeed in this mission the plaintiffs have not hesitated in levelling baseless allegations against their fathers. However, on the strength of the evidence led by the plaintiffs, the vendors cannot be as spend thrift persons. On the other hand, from the evidence it is not only proved that the sale was for legal necessity but it is also an act of good management and is liable to be upheld. The finding of the learned trial Court to the contrary cannot be accepted and the same is reversed. In result the finding of the learned trial Court on issue No. 5 is reversed and the same is decided in favour of the defendants and against the plaintiffs.”
8. It is pertinent to mention that the plaintiff-appellants had filed an application before the learned Additional District Judge under Order XLI Rule 27 of the Code in which prayer was made to allow the production of excerpts of the revenue record with the object of proving the ancestral nature of the property. However, the learned Additional District Judge dismissed that application by giving variety of reasons and the same read as under:-
“After giving my careful consideration to the facts and circumstances of the case it is not possible to accept the argument of the learned counsel for the respondents. The language of Order 41 Rule 27 CPC is in the negative form because it says that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, in the Appellate Court but it can only be allowed in certain circumstances explained therein. The case of the respondents is not covered under Order 41 Rule 27(a) nor it can be said to be covered under Order 41 Rule 27(b) because the judgment can be pronounced even without this document. Now turning to the authority relied upon on behalf of the respondents, Official Assignee v. Sunhkaran, A.I.R. 1974 Rajasthan 49 it may be noted that the copy of some order which was per se admissible in evidence was allowed as additional evidence stating that it is a public document. The excerpt now sought to be proved by way of additional evidence cannot be termed as a public document because it is extract of various jamabandis and the evidence of the person who prepared the excerpt is necessary. That being the case of ratio of the authority relied upon on behalf of the respondents is of no avail to their case.
Though the excerpt was got prepared through the agency of the court but that would not make any difference when no steps were taken by the respondents in getting this document proved by summoning the special kanungo. No plausible explanation has also been given for this lapse. The mere saying that it is a case of inadvertence cannot be accepted because the document was not even tendered in evidence during the trial of the suit. So this is a case of gross negligence on the part of the plaintiff-respondents for which no cogent explanation is forthcoming. By summoning the witness now it is a clear attempt made by the plaintiff-respondents to fill in the lacuna left in their case and in cases such a request is allowed it would work great injustice to the other party, more so, in a case of this nature which is a dishonest litigation. Apart from this there is another hurdle in the way of the respondents. Since the application is being decided today the present provisions of Order 41 Rule 27(aa) would also apply to this case. According to this newly added provisions’ the party seeking permission to produce additional evidence has to establish that notwithstanding due diligence such evidence was not within its knowledge and could not, inspite of exercise of due diligence, be produced by him when the decree appealed against was passed. There is no material at all in the application which may satisfy the aforesaid requirement and therefore, the plaintiff-respondents cannot be permitted to produce the additional evidence after lapse of many years. Even the request was made after two adjournments for arguments and when the counsel for the appellant had raised this point. The application, therefore, also cannot be described as bonafide. Thus, looking from any angle I find no merit in this application seeking permission to produce additional evidence and the same is, therefore, rejected.”
9. Mr. C.B. Kaushik, learned counsel for the plaintiff-appellants has argued that the learned Additional District Judge has committed grave error in law by rejecting the application filed by the plaintiff-appellants for adducing additional evidence under Order XLI Rule 27 of the Code. According to the learned counsel, the documents sought to be produced by adducing additional evidence were such that the same could not be fabricated and, therefore, such documents should have been permitted to be adduced in evidence. He has urged that the documents were necessary to prove the issue that the suit land was ancestral property in the hands of the fathers of the plaintiff-appellants i.e. defendant-respondents 3 and 4. In support of his submission, the learned counsel has placed reliance on three judgments of this Court in the cases of Gurnek Singh v. Gurbachan Singh and Ors., (1992-2)102 P.L.R. 205, Pirbhu Dayal v. Prem Dass Chela Kishan Lal and Ors., (1995-2)110 P.L.R. 119, and Ram Chander v. Saheed Ahmed and Ors., (2002-2)131 P.L.R. 115. The learned counsel has further argued that the allegations of sale without any consideration could have been effectively met by the defendant-respondents by producing the sale deed and an adverse inference is liable to be raised in favour of the plaintiff-appellants that the sale was without any consideration. According to the learned counsel there is nothing in the cross-examination conducted by the defendant-respondents showing that the sale was for consideration and for a legal necessity. The learned counsel has maintained that there is no plea set up that the suit land is self-acquired property by defendant-respondents 3 and 4.
10. Mr. N.S. Panwar, learned counsel for the defendant-respondents has argued that onus to prove the ancestral character of the suit land was heavily on the plaintiff-appellants and they have miserably failed to discharge that onus. He has referred to issue No. 2 to show that onus of that tissue was placed on the plaintiff-appellants and they were to adduce cogent evidence to show that the suit property was ancestral in nature. The learned counsel has also submitted that in order to successfully prove the ancestral character of the property, it was required to show that the property was owned by a common ancestor and had descended to the party concerned by inheritance and in no other manner. The learned counsel has pointed out that no evidence has been produced showing inheritance by the plaintiff-appellants. He has placed reliance on the judgment of this Court in the case of Smt. Sham Kaur v. Hari Singh and Ors., (1971)73 P.L.R. 318. He has also argued that the sale deed should have been produced by the plaintiff-appellants which could have been showed whether the sale was for a consideration. Referring to the statement of Ganga Ram, the learned counsel has pointed out that this witness is one of the vendors and even he did not say that no consideration was paid. The delay of ten years in challenging the sale transaction entered in 1956 after a period of 10 years is also urged to be a factor showing that the plaintiff-appellants acquiesced and accepted the sale. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Thimmaiah v. Ningamma and Anr., A.I.R. 2000 S.C. 3529. He has maintained that even for payment of his personal debt, a Karta of Hindu Undivided Family is competent to sell the coparcenary property as long as the debt was not obtained for immoral purposes. In this regard the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Sunder Das v. Gajananrao and Ors., A.I.R. 1997 S.C. 1686. He has also argued that the findings have been recorded by the learned Additional District Judge on the basis of detailed analysis of evidence and the same should not be interfered with under Section 100 of the Code because there is no substantial question of law which would arise for determination. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003(2) S.C.C. 91.
11. Having heard the learned counsel for the parties at a considerable length and perusing the record of both the Courts below, I am of the considered opinion that this appeal is liable to be dismissed. For the sake of convenient discussion, the controversy can be divided in two parts: (a) the question concerning additional evidence; and (b) whether the sale deed dated 24.2.1956 was for consideration and legal necessity and whether the suit property was ancestral in character.
12. Re: Additional Evidence.-
It is trite to observe that under Order XLI Rule 27 of the Code additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence;(c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunas or to patch up the weak points in the case as has been held by the Supreme Court in the case of N. Kamalam v. Ayyaswami, 2001(7) S.C.C. 503. The discretion given to the Courts for allowing additional evidence under Order XLI Rule 27 of the Code has to be exercised judicially and sparingly as is the view expressed by the Supreme Court in the case of Mahavir Singh v. Naresh Chandra and Anr., 2001(1) S.C.C. 309.
13. When the aforementioned principles are applied to the facts of the present case, it becomes evident that the additional evidence sought to be produced by the plaintiff-appellant could not be allowed. Various reasons have been given by the learned Additional District Judge which deserve to be accepted. There is gross negligence on the part of the plaintiff-appellants as the document collecting the experts of revenue record was not even tendered in evidence during the trial of the suit. The document was required to be proved by summoning the Special Kanungo. There is no plausible explanation for such a negligence Moreover, the summoning of the witness at the stage of first appeal would result in great prejudice and injustice to the defendant-respondents especially in a litigation of this nature. There is no evidence on record to show that despite exercise of due diligence, the evidence was made after the counsel for the defendant-respondents had raised the argument and the case was adjourned twice. Moreover no request for adducing additional evidence was not within their knowledge and could not be produced by the plaintiff-appellants at the time when the judgment and decree was passed. I am inclined to accept the view of the learned Additional District Judge that the request for adducing additional evidence was made when the first appeal was earlier dismissed on 2.1.1971. Such a request cannot be considered as bona fide. Therefore, the application of the plaintiff-appellant is not covered by the requirement of Order XLI Rule 27 of the Code.
14. Re: Consideration and Legal Necessity.-
For the sake of argument if the additional evidence is allowed and the revenue record produced in support of issue No. 2 that the suit property is ancestral in nature, the plaintiff-appellants are still required to cover a long way. The finding recorded by the learned Additional District Judge is that no evidence has been produced to prove that the sale deed was without any consideration or that it was not for a legal necessity. It has been found by the learned Additional District Judge that the sale of the land was necessitated on account of requirement of funds for the business of defendant-respondents 1 and 2 – the vendors. It has also been found that defendant-respondents 1 and 2 became very rich in the year 1957 which goes to prove that the sale of the land was an act of good management. Even Ganga Ram one of the vendors who appeared as a witness failed to depose that no consideration had passed to them. 1 am further of the view that the failure on the part of defendant-respondents 1 and 2 to contest the suit would show collusion between the plaintiff-appellants and defendant-respondents 1 and 2. Moreover, it has been found that the land was not churning out any income to the vendors i.e. defendants-respondents 1 and 2. Reliance in this regard could be placed on a judgment of the Supreme Court in Sunder Das’s case (supra). There is a huge delay of ten years in challenging the sale transaction which would show that price of the land must have gone up and attempt had been made to recover back that land. It is also well settled that the vendor is not to show whether the sale proceeds had been utilised for the welfare of Hindu Undivided Family because even a sale deed executed for discharging the debts of the Karta is also a valid sale. The aforementioned view has been taken by the Supreme Court in the case of Manibhai v. Hemraj and Ors.,1990(3) S.C.C. 68.
15. It has been repeatedly held that the findings recorded by the first Appellate Court cannot be assailed in an appeal filed under Section 100 of the Code unless it is shown that the findings are without any evidence or are perverse. It has further been held that for exercise of jurisdiction under Section 100 of the Code by this Court, the existence of a substantial question of law is a sine qua non. In cases where the findings of facts of the first Appellate Court are based on evidence, the High Court cannot substitute its own findings by reappreciating evidence merely on the ground that another view, could be possible. Even in cases concerning title and ownership, the findings of facts as recorded by the Courts below are considered by their Lordships of the Supreme Court to be final. The aforementioned view has been taken by the Supreme Court in the cases of Janki Narayan Bhoir’s case (supra); Kulwant Kaur v. Gurdial Singh, (2001-2)128 P.L.R. 492 (S.C.); Bondar Singh v. Nihal Singh, 2003(4) S.C.C. 161, and Kanhaiyalal v. Anupkumar, 2003(1) S.C.C. 430.
16. In the instant case, the learned Additional District Judge has reversed the findings recorded by the Sub Judge by holding that there was lack of evidence or oral evidence could not constitute a basis for concluding that the suit land was ancestral in nature. The view taken by the learned Additional District Judge is based on close analysis of evidence and would not call for interference by this Court in exercise of its jurisdiction under Section 100 of the Code. Therefore, on that score also, the appeal is liable to be dismissed.
For the reasons stated above, this appeal fails and the same is dismissed.