B.S.CHAUHAN,J. - (1.) This appeal has been preferred against the impugned judgment and decree dated 19.4.2007 passed by the High Court of Judicature at Allahabad in Second Appeal No.289 of 2000 by which it has upheld the judgment and decree of the first appellate Court dated 15.10.1999 passed in Civil Appeal No.81 of 1998 by which the first appellate Court had reversed the judgment and decree of the Civil Court dated 20.1.1998 passed in Original Suit No.442 of 1995 wherein the plaintiff/respondent no.1 had sought declaration of title of the ownership in respect of the suit property.
(2.) Facts and circumstances giving rise to this appeal are : A. Plaintiff/respondent no.1-Ibrahim Uddin filed Original Suit No.442 of 1995 in the Court of Civil Judge, Agra on 25.7.1995 seeking a decree for declaration that he was the owner of the suit property (Agriculture land measuring 25 bighas), making averments that the suit land originally had been with the Maratha Government (Scindia-Gwalior). The ancestors of the plaintiff having close association with the Maratha Government, were made a grant in respect of the suit land in the year 1800. Subsequently, the land was partitioned between the ancestors of the plaintiff in the year 1819. The plaintiff/respondent no.1 being the only heir (descendant) of Smt. Hasin Begum and Zafaruddin became the absolute owner of the land after the death of his mother Smt. Hasin Begum. The said land was never sold, alienated, transferred or gifted to any person either by the plaintiff or his ancestors at any point of time. The suit land was given on rent to the State authorities in Agra by executing a rent note for a sum of Rs.22/- per month. The Union of India claimed title over the suit land illegally and in an unauthorised manner on 22.2.1993 and afterwards, thus the cause of action arose to approach the court. B. The defendant no.1/appellant filed the written statement denying the averments and ownership of the plaintiff/respondent no.1 and averred that the land belonged to the Ministry of Defence, i.e., Union of India, a part of which has been leased out to several persons for agriculture work and their lease has been renewed from time to time. As they became unauthorised occupants, proceedings had been initiated in accordance with law and eviction order had been passed against the occupants/tenants. C. In view of the pleadings, 8 issues were framed by the Trial Court and after appreciating the evidence on record, the trial Court came to the conclusion that Pedigree produced by the plaintiff alongwith the plaint was not successfully proved; the plaintiff could not prove any kind of grant by the Maratha Government to his ancestors/great-grandfathers in the year 1800. Plaintiff failed to prove the partition between his ancestors in 1819. The lease deed alleged to have been executed in favour of the Military Estate Officer under the Union of India, appellant/defendant No.1, was not successfully proved. In view of the above, the suit was dismissed vide judgment and decree dated 20.1.1998. D. Aggrieved, the plaintiff/respondent no.1 preferred the first appeal before the District Judge, Agra. During the pendency of the said appeal, he preferred an application under Order XLI Rule 27 of the Code of Civil Procedure 1908 (hereinafter called "CPC") on 6.4.1998 for adducing additional evidence, i.e., Will executed by his maternal grandfather dated 1.3.1929 in his favour bequeathing the suit property. The said application was allowed by the first appellate Court vide order dated 28.4.1999. The First Appeal itself stood allowed by the first appellate Court vide judgment and decree dated 15.10.1999 wherein the first appellate Court came to the conclusion that Maratha Government had made the gift of land in favour of plaintiff's fore-fathers which was subsequently partitioned. The registered partition deed stood duly proved and it was the proof of the title of the plaintiff/respondent no.1. The plaintiff/respondent no.1 made an application for inspection of the record before the officers of the appellant/defendant no.1 but perusal of the record was not permitted. The appellant/defendant no.1 did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn against it in view of the provisions of Section 114 clause(g) of the Indian Evidence Act, 1872 (hereinafter called the Evidence Act). The Will, taken on record as an additional evidence at appellate stage stood proved and thus, contents thereof automatically stood proved. E. Aggrieved, the appellant preferred Second Appeal before the High Court which has been dismissed vide impugned judgment and decree. Hence, this appeal.
(3.) Shri R.P. Bhatt, learned Senior counsel duly assisted by Ms. Madhurima Tatia, Advocate has submitted that there was no documentary evidence or trustworthy oral evidence that the suit property had been given to the fore-fathers of the plaintiff/respondent no.1 by the Maratha Government in the year 1800. Same remained the factual aspect in respect of alleged partition among his fore-fathers in the year 1819. The first appellate Court had no occasion to decide the application under Order XLI Rule 27 CPC prior to the hearing of the appeal itself. More so, as there has been no reference to the Will in the plaint or First Appeal, thus, it could not be taken on record for want of pleadings in this respect. Further, taking the Will on record did not mean that either the Will or its contents stood proved. None had proved the said Will and thus, could not be relied upon. If the Will is ignored, there is no evidence on record to prove the case of the plaintiff/respondent no.1. The High Court had framed 4 substantial questions of law at the time of admission of the appeal and 2 additional substantial questions at a later stage but did not answer either of them nor recorded any finding that none of them was, in fact, a substantial question of law, rather the appeal has been decided placing reliance on the Will, which was liable to be ignored altogether and making reference to the record of the Cantonment Board. In case, the Union of India did not produce the revenue record before the trial Court, the first appellate Court has wrongly drawn adverse inference under Section 114(g) of the Evidence Act. Thus, the appeal deserves to be allowed.;