1. This is a second appeal filed by Amar Singh alias Ram Saran and Nihal Singh sons of Dibu, resident of village Sundawas, District Hissar, against the judgment dated 24th March, 1971, of the Senior Sub-Judge, Hissar, dismissing their appeal against the decree dated 12th January 1971, passed by Sub-Judge II Class, Hissar, against them for possession by pre-emption of the land in suit, in favour of the plaintiff against them on payment of Rs. 20,552.50.
2. The facts of this case are that Jagmal Singh and others were owners of the land in suit measuring 71 kanals and 16 marlas, fully described in the plaint, situated in the area of village Siswal, Tehsil and District Hissar and they sold the same on the basis of a registered sale deed dated 16th May, 1967, for Rupees 22,000/-, to the appellants Amar Singh, Ram Lal and Nihal Singh. Ashok Kumar son of Inder Singh vendor filed this suit for possession by pre-emption of this land on payment of Rupees 17,500/- alleging that he being the son of Inder Singh vendor, the nephew of Om Prakash, Jagmal Singh, Diwan Singh, Sohan Singh, Ved Parkash, Smt. Mahli and Savitri and the grandson of Mst. Dakhan vendor, had a superior right of pre-emption than the vendees, that the sale took place only for Rupees 17,500/- and the remaining amount was fictitiously entered in the sale deed to defeat the rights of the pre-emptors. The suit was resisted by the vendees on various grounds. On these pleadings of the parties, the following issues were framed by the trial court:--
1. Whether plaintiff has a preferential right of pre-emption ?
2. Whether the sale price of Rupees 22,000/- was actually paid or fixed in good faith ?
3. If Issue No. 2 is not proved what is the market value of the suit land ?
4. Whether vendees incurred expenses of stamp and registration of the sale deed, if so, how much and to what effect ?
5. Whether defendants have made improvements in the suit land after sale, if so, to what value and to what effect ?
6. Whether suit is barred by time ?
7. Whether suit is benami or collusive with vendors ?
8. Relief.
3. The trial Court decided issue No. 1 in favour of the plaintiff. It was held that the sale took pace for Rupees 19,000 and the same was the market value of the land and decided Issues Nos. 2 and 3 accordingly. The vendees were held to be entitled to Rupees 552.50 spent by them on the execution of the sale deed. The issues No. 5, 6 and 7 were decided against the vendees. As a result, the decree for possession by pre-emption of the land in suit on payment of Rupees 20,552.50, was passed in favour of the plaintiff against the vendees. Feeling aggrieved, the vendees filed an appeal against this decree in the Court of the Senior Sub-Judge, Hissar, who dismissed the same on 24th March, 1971. Thereafter this second appeal was filed of this Court.
4. The decision of the lower Court on issue No. 1 was only contested in this Court. The appellants made an application under Order 41, Rule 27, Civil Procedure Code read with Section 151, Civil Procedure Code, for production of additional evidence. It was alleged that the point which is to be decided in this appeal is whether the plaintiff Ashok Kumar had a superior right of pre-emption. It is alleged that this land belonged to Dalu Ram, the husband of Mst. Dakhan vendor and the father of Mst. Mahli and Mst. Savitri and they and the other vendors inherited this land from Dalu Ram and therefore the appellants had no right of pre-emption as regards the land sold by Mst. Dakhan, Mst. Mahli and Mst. Savitri, vendors. It is averred that from the entries in the copy of the mutation order Exhibit P-1, they learnt that this land was purchased by Dalu for Rupees 3,900/- in a public auction on 20th May, 1957 and a sale certificate was issued by the Competent Officer Punjab, Jullundur in his name and therefore they may be permitted to produce the certified copies of the order of Shri K.R. Sial, Competent Officer, Hissar, dated 23rd August, 1957, application dated 24th October, 1963 made by Jagmal Singh, certificate of sale issued by Shri J. C. Gulati, District Competent Officer, Jullundur, dated 31st March, 1964 and an application dated 22nd August, 1957 filed by Dalu Ram in the Court of the Competent Officer, Hissar, to prove that this land originally belonged to Dalu Ram and all the vendors inherited it, on his death. Notice of this application was issued in the respondents who contested this petition. By order dated 24th May 1971, it was directed by Hon'ble Mr. Justice P. C. Jain that this application under Order 41, Rule 27, Civil Procedure Code, for production of additional evidence, should be heard and decided with the main appeal. In the plaint, it was alleged that the plaintiff Ashok Kumar being the son of Inder Singh vendor and the grandson of Mst. Dakhan and nephew of other vendors had a superior right of pre-emption than the vendees who were strangers. In Para No. 3 of the written statement, the vendees simply stated that the relationship of Ashok Kumar as alleged in the plaint, was denied. On these pleadings of the parties the trial Court framed issue No. 1 as to whether the plaintiff has superior right of pre-emption. The learned counsel for the appellants vendees-defendants, made a statement on 23rd December, 1968 in the trial Court that it was admitted that Ashok Kumar plaintiff is the son of Inder Singh vendor and grandson of Mst. Dakhan and the nephew of Jagmal Singh, Om Parkash, Diwan Singh, Sohan Singh, Ved Parkash, Mst. Mahli and Mst. Savitri, vendors. It was, however, admitted before the trial Court that the plaintiff had a superior right of pre-emption as regards the sale by Inder Singh, Jagmal Singh, Om Prakash, Diwan Singh, Sohan Singh and Ved Parkash vendors was concerned. The only contention raised before the trial Court was that as regards the share of land in suit sold by Mst. Dakhan, Mst. Mahli and Mst. Savitri, the sale was governed by Section 15(2) of the Punjab Pre-emption Act and the plaintiff had no right of pre-emption. The trial Court held that there is no allegation much less any proof on the file that this land in suit originally belonged to Dalu Ram and Mst. Dakhan, Mst. Mahli and Mst. Savitri, inherited this land from Dalu Ram on his death and therefore, the suit was not governed by Section 15(2) of the Punjab Pre-emption Act but was governed by Section 15(1)(c) of the Act and the plaintiff had a superior right of pre-emption.
5. In the Court of the Senior Sub-Judge, Hissar, an application was filed on 26th February, 1971 by the appellants that they may be permitted to produce oral and documentary evidence to prove that this land was inherited by the vendors from Dalu Ram and that the recitals in the mutation order, whose copy is Exhibit P-1, were wrong. The Senior Sub-Judge, Hissar did not permit them to produce additional evidence and dismissed this application.
6. Before proceeding to discuss this application under Order 41, Rule 27, Civil Procedure Code, I may point out that even if it is proved that Mst. Mahli and Mst. Savitri inherited this land from their father Dalu Ram, the plaintiff Ashok Kumar who is their nephew has got a superior right of pre-emption. Section 15(2)(a) of the Punjab Pre-emption Act lays down that when the sale is by a female, of land or property to which she has succeeded through her father, the right of pre-emption shall vest:
(1) if the sale is by such female in her brother or brother's son,
(ii) x x x x x x
Ashok Kumar is the son of Inder Singh vendor who is admittedly the real brother of Mst. Mahli and Mst. Savitri, vendors and thus even according to Section 15(2)of the Punjab Pre-emption Act, the plaintiff has a superior right of pre-emption as regards the sale of Mst. Mahli and Ms. Savitri Shri A. S. Nehra, learned counsel for the appellant conceded this fact that the plaintiff has a superior right of pre-emption as regards the sale by Mst. Mahli and Mst. Savitri.
7. Order 41, Rule 27(1), Civil Procedure Code lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court. But if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced or witness to be examined.
8. In Arjan Singh v. Kartar Singh, AIR 1951 SC 193, it was held as under:--
'That the legitimate occasion for the application of Order 41, Rule 27, Civil Procedure Code, is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. The true test, therefore, is whether, the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.'
In State of Uttar Pradesh v. Manbodhan Lal Srivastava, AIR 1957 SC 912, it was held as under:--
'It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.'
To the same effect was the law laid down in Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143 and in Chhaju Ram v. Surinder Kumar, AIR 1951 Punj 305 and in Bhola Singh v. Teja Singh, AIR 1951 Punj 363. The law laid down in these authorities fully applies to the facts of this case.
9. The law is firmly established that provisions of Order 41, Rule 27(1)(b) of the Code of Civil Procedure, are not intended to allow a litigant who has been unsuccessful in the trial Court to patch up the weak parts of his case and fill up omissions, in the Court of appeal. The additional evidence under this provision cannot be admitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. The true test, therefore is whether the appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced or whether the appellate Court itself requires certain evidence to be adduced in order to enable it to pronounce judgment.
10. In the instant case the appellants did not plead in their written statements that the vendors inherited the property in suit from Dalu Ram, and therefore the plaintiff had no right of pre-emption as regards the sale effected by Mst. Dakhan, Mst. Mahli and Mst. Savitri in view of the provisions of Section 15(2) of the Punjab Pre-emption Act. In the written statement it was simply pleaded that the relationship of the plaintiff as alleged in the plaint was denied. There is no allegation, much less any proof on the file to show why this evidence which is sought to be produced now in second appeal was not produced in the trial Court. In the application made in the Court of the Senior Sub-Judge for production of additional evidence, it was not mentioned why this additional evidence was not produced in the trial Court. In that application it was simply recited that the entries in the mutation order whose copy is Exhibit P-1, were not correct. For all these reasons it is held that the application for production of additional evidence was rightly rejected by the Senior Sub-Judge. There is no force in the application made by the appellants of production of additional evidence in this Court and the same is dismissed.
11. For the reasons given above it is held that there is no force in this appeal and the same is dismissed with costs.
12. Appeal dismissed.