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Vijai Pal v. Bhagawat Prasad - SECOND APPEAL No. 2938 of 1978  RD-AH 20601 (5 December 2006)
Court No. 30
SECOND APPEAL NO. 2938 of 1978
Vijay Pal - Defendant-Appellant
Bhagwat Prasad (since deceased)
Represented by Chandra Shekhar Sharma
And others - Plaintiff-Respondent
Hon'ble Sunil Ambwani, J.
1. Heard Shri R.K. Pandey, learned counsel for appellant and Shri Neeraj Agarwal for respondent.
2. The parties agree that respondent no. 3/1/1 Jagdish Prasad Misra died about two years ago leaving behind his sons and legal heirs namely Shashank Misra; Mayank Misra and Rahul Misra. The reasons given for condoning delay are good and sufficient. The application for condonation of delay and substitution application are allowed. Copy of the application given by learned counsel for appellant shall be placed on record.
3. This second appeal is arising out of concurrent judgments of the trial court dated 16.12.1979 in Suit No. 319 of 1974 between Bhagwat Prasad vs. Vijay Pal and others, and judgment dated 28.8.1978 in Civil Appeal No. 117 of 1978 between Vijay Pal vs. Bhawat Prasad and others decreeing the suit for partition of half share of the suit land, of the family Deo Ballabh.
4. The pedigree of family of Dev Ballabh is given as follows:-
/ / /
Raghunath Chet Ram Chajju Mal
(died issueless ___________________ ______________
in 1967) / / /
Deewan Sahai Har Narain Smt. Naraini
/ (Wife of Chajju Mal)
5. The plaintiff-respondent Bhagwat Prasad claimed to be purchaser of half share of the land from Naraini Devi vide sale deed dated 11.7.1974. The defendant, on the other hand, claimed that they had purchased half share of the land from Har Narain son of Chet Ram on 15.7.1971, and remaining half share from Kala and Sona daughters of Raghunath vide sale deed 30.7.1974.
6. Both the courts have found that Raghunath died issueless. He did not have any daughter named Kala and Sona. The kutumb resister and khatauni did not prove the fact that Raghunath had any issue. If Kala and Sona were alive at the time of purchase by sale deed executed in the year 1971 by Vijay Pal, then the latter could not have purchased half share from Har Narain who had only one fourth share. The fact that Vijay Pal purchased half share of Har Narain is clearly against the story that on his death, Raghunath was survived by her two daughters namely Kala and Sona.
7. The consolidation authorities also did not accept the story set up by the defendants.
8. Learned counsel for appellant has filed an application on 25.4.2000 for admitting certain documents as additional document to establish that Raghunath had two daughters namely Kala and Sona.
9. The respondents have opposed the application to admit any additional evidence at this stage. This was one of the main issue between the parties. There are no reason given in the affidavit of Shri Vijai Pal as to why he could not file these documents in the trial court and in the appellate court. In para 6 it is stated that due to inadvertence of the deponent, the document could not be filed earlier and that these documents are necessary to be brought on record. Order 41 Rule 27 CPC gives right to the parties to produce additional evidence, where the parties seeking such relief establishes with notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not, after exercise of due diligence be produced by him at the time when the decree appealed against was passed. The appellant has not brought on record or pleaded any such facts to show the exercise of due diligence. The parties led evidence in the trial court almost twenty eight years ago. It would not be appropriate for this court to allow the appellant to lead additional evidence after such a long time. The court also does not require any such evidence to do justice or to pronounce the judgment.
10. The second appeal is concluded by finding of fact and is dismissed.
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