Judgment:
ORDER
Sathasivam, J.
1. The plaintiff is the appellant. He filed O.S. No. 412 of 1979 on the file of the District Munsif Court, Paramakudi for declaration and permanent injunction. According to the plaintiff, the suit property originally belonged to one Thirumalai Servai as his ancestral property .He sold it to the plaintiff on 10.9.1979 for a sum of Rs. 4,800 under Exhibit A.1. In the said property, which is a vacant site measuring 120' east-west, 100' north- south, the plaintiff put up a thatched shed measuring 20 feet cat-west and 10 feet north-south, in the north eastern corner of it. She however, contended that she also is enjoying it by keeping hay ricks and tethering cattle thereon and before her, the predecessors were in possession and enjoyment of the suit property and thus the plaintiff has acquired prescriptive title to it. The defendants who arc having no right or possession or enjoyment over the suit property are threatening to interfere with the plaintiff's peaceful possession and enjoyment of it. With these averments she filed theabove suit.
2. The first defendant filed a written statement adopted by defendants 2 to 4. He disputed the measurements mentioned by the plaintiff in this plaint. He also disputed the validity of the sale deed dated 10.9.1979. According to him, it has been brought out fraudulently by the plaintiff and her husband. He further contended that the suit property originally belonged to the first defendant's paternal grand-father Munian and after him it was enjoyed by his son viz., the first defendant's father Punnuamuthu alias Poochi. After the death of Punniamuthu, the first defendant and his brother only have been in enjoyment of it. He further contended that the first defendant put up thatched shed in the suit property about 15 years back and has been living in it The Door Number of the thatched house is 43 and paying house tax also for it to the panchayat. In the recent heavy rains the house was damaged and he has rebuilt the same at present. Even in the sale deed dated 16.3.1937 and 6.9.1939 in respectr of the properties west of the suit property, the suit property has been referred to as belonging to the defendants only. Thus according to him, it is the defendants only who have acquired prescriptive title to the suit property. The third defendant who is the son of the first defendant is not in good terms with him and has been living in a village for about 30 years. Only because, the plaintiff who is living north of the suit property from the defendants has got the sale deed executed in her favour and has come forward with this suit.
3. With the averments, the defendants prayed for dismissal of the suit.
4. In support of the plaintiff's case, plaintiffs father Deva Asirvatham, was examined as P.W.2 and one Thirmalai Servai and T. Ayub Khan were examined as P.Ws 1 and 3 respectively. Plaintiff has also marked Exhibits A1 to A4 in support of her case. On the other hand, the first defendant as examined as D.W.I and one Balu was examined as D.W.2. Exhibits B.1 to B.21 were marked in support of their defence. The Commissioner's report, plan and additional report were marked as Exhibits C.1 to C.3. On the basis of the oral and documentary evidence, the learned District Munsif, Paramakudi has held that it is the defendants who have proved title to the suit property and they have acquired prescriptive title also and the plaintiff has not proved her title or possession of the suit property.
5. The unsuccessful plaintiff filed an appeal, A.S. No. 13 od 1982 before the Sub Court, Ramanathapuram at Madurai. She has filed I.A. No. 86 of 1982 under Order 26, Rule 1 of civil Procedure Code for appointment of an advocate/Commissioner. Before the Sub Court, the very same contentions were raised on behalf of the plaintiff. The lower appellate Court once again reappraised the whole evidence and accepted the finding of the trial court. In respect of appointment of Commissioner, the lower appellate court held that inasmuch as the earlier report and plan and additional report, Exhibits C.1 and C.3, were very clear there is no need to appoint a fresh Commissioner to ascertain the suit property, hence, the learned Subordinate Judge dismissed the appeal as well as the Interlocutory Application.
6. Against the concurrent findings of the Courts below, the unsuccessful plaintiff filed the second appeal before this court. While entertaining the second appeal, this court has framed the followoing substantial questions of law:
'1. Whether the lower appellate court has erred in law in dismissing 1.A. No. 86 of 1982 without asking the Commisioner to make a local inspection again when the commissioner has given inconsistent versions?
2. Are not the judegements of both the Courts below perverse when they say that the measurements of the suit property do not tally with the measurements given EX.A.1 sale deed?
3. Have not the Courts below committed a manifest illegality by holding that the defendants have perfected title by adverse possession?'
7. Thiru T.L. Rammohan, learned senior counsel appearing on behalf of the appellant vehemently contended that even though the present second appeal is against the concurrent findings of the Courts below, according to the learned senior counsel both the courts bellow have committed an error in identifying the suit property. On the other hand, Thiru S. Krishnasamy, learned counsel for the respondent, after taking me to the factual findings of the Courts below and in the light of the Commissioner's report, plan and additional report, contended that there is absolutely no question of law involved to interfere in this second appeal.
8. I have carefully considered the arguments of the learned senior counsel as well as the Counsel for the respondent. At this stage, the learned senior counsel for the appellant brought to my notice mat the appellant has filed C.M.P. No. 2146 of 1996 in this appeal to receive three documents as additional evidence under Order 41 Rule 27 of Civil Procedure Code. On the basis if the documents referred to in the affidavit filed in support of the C.M.P No. 2146 of 1996, the learned Senior counsel requested that all the three documents may be received as additional evidence in the interest of justice. I am unable to accept his contention for this reason. The present second appeal came up for hearing on 9.2.1996, the counsel on record prayed for a short pass over in order to bring C.M.P. No. 2146 of 1996 for consideration of this Court. The verification of the said Civilmiscellaneous petition shows that the same has been filed only on 8.2.1996 i.e., one day prior to the date on which the matter was taken up for consideration. Apart from this, I do not find any reason or statement for not filing the three documents mentioned in the petition either before the trial Court or before the lower appellate Court.
9. It is true that under Order 41, Rule 27 of Civil Procedure Code, this Court has power to receive any evidence even at the appellate stage. It is useful to refer Order 49, Rule 27 of C.P.C. which reads as follows:-
'Production of additiona; evidence in Appellate Court - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence whichought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of the negligence, such evidence was not within his knowledge or could not, after the exercise of due dcligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(1) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'
10. It is not the case of the appellant that the document referred in C.M.P. No. 2146 of 1996 were not available before the courts below. As stated by me earlier, absolutely there is not even a single reason for not filing these documents before the Courts below. Equaly, it was not the case that the appellant was prevented to adduce evidence in this behalf. As pointed out by the Supreme Court in Natha Singh 7 Ors. v. The Commissioner, Taxation, Punjab 7 Ors., : [1976]3SCR620 the true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgement on the materials before it without taking into consideration the additinal evidence sought to be advance. In the light of the principles laid down by the Apex Court referred to above, both the Courts below, on the basis of the oral evidence of the parties as well as the documents Exhibits A.1 to A.4 and B.1 to B.21 and in the light of the Commissioners report, plan and additional report EXs. C. to C3, negatived the plaintiff's case. When there are ample evidence for disposal of the case, I do not find any justification in entertaining additional evidence at the last hour of the day. For the sake repetition, even though the second appeal has been filed in the year 1983 the appellant thought to file this Civil Miscellaneous Petition to receive additional evidence only on the day of dinal hearing i.e., after 13 years. In view of the fact that the materials placed before the Courts are sufficient for disposal of the case, I am of the view that there is no need to receive any documents at this stage for disposal of the second appeal.
11. Consequently, there are no merits in this second appeal and the same is dismissed. There will be no order as to costs. C.M.P. No. 2146 of 1996 is also dissmissed.