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Buddha Vs. Mangal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 57 of 1967
Judge
Reported in1974WLN(UC)164
AppellantBuddha
RespondentMangal and anr.
DispositionAppeal dismissed
Excerpt:
.....the first appellate court did not consider the plaintiff's evidence as good and reliable and at any rate wholly insufficient to prove the plaintiff's title to the land......first appellate court held that the oral evidence was not at all sufficient to prove either title or possession of the plaintiff over the land in dispute and the sketch ex. 1 was of no evidentiary value in as much as it neither bore the seal of the thikana, nor there was any thing in it to show that the land bad been granted by the thikana to the plaintiff. the plaintiff applied for admission of additional evidence before the first appellate court in the shape of a certified copy of the order of the thikana dated 16-3-1946 under order 41, rule 27 civil p.c. the application for permission to produce additional evidence was disallowed, and in the result the appellate court set aside the judgment and decree by the trial court and dismissed the plaintiff's suit. hence this second.....
Judgment:

C.M. Lodha, J.

1. This is a plaintiff's second appeal in a suit for possession of an open piece of land described as 'Gwara', situated in village Anandpur Tehsil Behror.

2. The plaintiff based his case on title and the defendants in their written statement asserted their own title and possession over the land. Both the parties relied on oral evidence. The trial court accepted the plaintiff's evidence regarding possession supported by a rough sketch Ex. 1, alleged to have been prepared by the Pastwari at the time of grant of the land to the plaintiff by the erstwhile Thikana Neemlan of the former State of Alwar, and decreed the plaintiff's suit. The learned first appellate court held that the oral evidence was not at all sufficient to prove either title or possession of the plaintiff over the land in dispute and the sketch Ex. 1 was of no evidentiary value in as much as it neither bore the seal of the Thikana, nor there was any thing in it to show that the land bad been granted by the Thikana to the plaintiff. The plaintiff applied for admission of additional evidence before the first appellate court in the shape of a certified copy of the order of the Thikana dated 16-3-1946 under Order 41, Rule 27 Civil P.C. The application for permission to produce additional evidence was disallowed, and in the result the appellate court set aside the judgment and decree by the trial court and dismissed the plaintiff's suit. Hence this second appeal.

3. After hearing learned Counsel for the appellant I have come to the conclusion that the plaintiff's application under Order 41, Rule 27 Civil P.C. was rightly disallowed, and no substantial cause had been made out before me for allowing the same. It is not a case of the requirement of the court and merely because the plaintiff was not able to obtain a copy of the order of the Thikana Court and they came to know of it after the decision of the case by the trial court, cannot be a sufficient ground for production of additional evidence. More over no affidavit is filed in support of the application and admittedly there is nothing in the order which may go to connect the land in dispute with the land in respect of which the order was passed.

4. Coming to the merits of the case, both the parties alleged acts of possession such as stocking fodder and tethering of cattle in the 'Gwara' in question. The first appellate court did not consider the plaintiff's evidence as good and reliable and at any rate wholly insufficient to prove the plaintiff's title to the land. The finding of fact arrived at by the court below cannot be interfered with in second appeal.

5. The result is that I dismiss this appeal, but without any order as to costs.


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