- (1.) MRS. Poonam Srivastava, J. Heard Sri Subodh Kumar, learned Counsel for the appellant and Sri V. B. Singh Senior Advocate, assisted by Sri Mohd. Isha Khan for the plaintiff-respondent.
(2.) COUNSELS for the parties agreed that the appeal be heard finally at the initial stage itself. The lower appellate Court record was summoned on 20-10-2005. On 5-4-2006 Sri C. B. Gupta Advocate filed his Vakalatnama on behalf of Cantonment Board, Agra subsequently a cross-objection was preferred on 13- 4- 2006 but no arguments were advanced on behalf of the Cantonment Board, Agra. The appellant Union of India through the Secretary, Ministry of Defence, New Delhi defendant No. 1, alone preferred this second appeal against the judgment and decree passed by the VIIIth Additional District Judge, Agra in Civil Appeal No. 81 of 1998 arising out of Original Suit No. 442 of 1995. The suit was instituted by the plaintiff-respondent Ibrahim Uddin seeking a decree for declaration that he is the owner in occupation of the suit property. The suit was dismissed by the Civil Judge (Senior Division), Agra vide judgment dated 20-1-1998. The plaintiff preferred a civil appeal against the appellant and Cantonment Board, Agra which was allowed and plaintiff's suit was decreed. The Cantonment Board did not prefer any appeal in this Court. This appeal was filed on a number of questions of law but it was admitted on 7-3-2006 on the following questions of law : (1) Whether the judgment and decree passed by the lower appellate Court is vitiated in law in as much as the land in dispute which was recorded in Column B-4 under Rule 6 of the Cantonment Land Administration Rule 1937 was wrongly and illegally discarded on the ground of secondary evidence in the presence of the original register maintained by the Military Estate Officer? (2) Whether the certified copy of the relevant registers maintained under the Cantonment Act are admissible in evidence and appellate Court erred in law in discarding the same illegally against the relevant provisions of the Evidence Act and decreed the suit of the plaintiff on the false protect that there is no document was filed on behalf of the defendant? (3) Whether the appellate Court did not consider this aspect at all that the suit for declaration without possession is not maintainable is barred by the provision of Specific Relief Act? (4) Whether the lower appellate Court has committed illegality while accepting the will dated 1-3-1992 filed on 28-4- 1999 without its proof by plaintiff ? Learned Counsel for the plaintiff respondent filed an application under Order XIII Rule 9 (1) (b) read with Section 151 C. P. C. to accept the document in original which was filed and relied upon by the lower appellate Court. The document adduced at the stage of first appeal before the Court below as additional evidence is Will deed dated 1-3-1929 in Urdu and its Hindi translation. Partition deed dated 1-3-1929 in Urdu and its Hindi translation and demand notice in Urdu and its Hindi translation were on record and filed in the trial Court.
(3.) SUBSEQUENTLY the documents were taken back after seeking permission from the Court in accordance with provisions of the Code as it was required in some other proceedings. The said documents have been filed in this appeal. Acceptance of the documents is objected by the plaintiff-appellant and an amendment application is filed to add two new grounds regarding acceptance of the documents and also framed an additional substantial question of law which is quoted below : (5) Whether the withdrawal of all documents filed by the plaintiff-contesting respondent if any violation of provisions of Order XIII Rule 9 C. P. C, if so its effect? The facts pleaded in the plaint is that Hafiz Ahmad Bux and Hafiz Karim Bux are owners of 20 bighas of land. Survey Nos. 5 and 6 situated in Sarai Safrat (now generally know as Namneh Agra ). The property was received as donation by Marathas and they are the title holder of the land since the year 1800. In the third generation of Hafiz Ahmad Bux and Hafiz Karim Bux, Sri Nazim inherited the property by means of partition deed in the year 1919. One of the branch of successors was issueless and therefore, the plaintiff became the successor Of the entire property. The property was never sold, alienated, transferred or gifted to any one by the ancestors of the plaintiff. The Military Estate Officer is the tenant of the ancestors at the rate of Rs. 22/- per month. The appellant-respondent denied the assertions made in the plaint. The pedigree was disputed. The defendant claimed to be the owner of the property and an additional written statement was filed stating that 8 acres of land of Survey No. 5 was given to one Sri R. D. Sharma and Kamleshwati on lease and the lease deed is said to be executed between 1-6-1956 to 31-5-1984. A suit for their dispossession is pending. An area of 3063 sq. feet of survey No. 6 was said to have been encroached by one Itwari Lal and a suit for dispossession of Sri D. B. Anand son of late Itwari Lal is pending. The trial Court framed as many as 8 issues. Issue No. 5 was regarding Court fee, issue No. 6, whether the suit is barred by provisions of Section 271 of the Cantonment Board Act, 1924 as well as Section 80 C. P. C. These three issues were decided as a preliminary issue in favour of the plaintiff and the same was never challenged. Issue Nos. 1, 2, 3 and 4 were decided together. The plaintiff Ibrahim Uddin was examined as PW- 1 on behalf of plaintiff and Sri H. C. Nakara S. D. O. as DW-1 on behalf of defendant. Besides the aforesaid oral evidence, a number of documentary evidence was brought on record by the plaintiff and respondent. The trial Court decided issue Nos. 1, 2, 3 and 4 relating to the ownership and occupation by the plaintiff in his own right. The trial Court dismissed the suit holding that the plaintiff has not been able to establish his right by means of any cogent evidence and, therefore, he is not entitled for a decree of declaration. The suit was dismissed. The plaintiff preferred an appeal. Additional evidence Paper No. 12- Ga was adduced on behalf of the plaintiff-respondent, which was a Will dated 1- 3-1929 alongwith Hindi translation executed by Nazim in favour of the plaintiff. The appellant was allowed time to file objection against the acceptance of the Will as an additional evidence but the appellant failed to file any objection within the time allowed and, therefore, the first appellate Court admitted the additional evidence. The appellant did not file any revision or challenged the acceptance of the Will as additional evidence. The appeal was allowed and the judgment of the trial Court was set aside. The appellate Court recorded a specific finding that the disputed property was received by ancestors from the Marathas in the year 1800 and also certified copy of Paper No. 10ga (1) was relied upon. The property was given to the Nana of the plaintiff, which was let out by them to NEO as tenants. Paper No. 21-Ga is a document written in Urdu by Karinda of the plaintiff. Hindi translation thereof is Paper No. 22-Ga. The plaintiff made a request for inspection of the documents, which was not permitted by the appellant. The appellate Court specifically relied on paper No. 10-Ga which is the partition deed. Paper No. 30-Ga is an application given by the plaintiff dated 17-5-1996 for inspection of the record but the plaintiff was not allowed to inspect the same by the appellant. The revenue records have not been adduced in evidence.;