Manoj Kumar Gupta, J. - (1.) The petitioners have called in question the order dated 5.1.2019 passed by the appellate court in Civil Appeal No.15 of 2012, thereby rejecting an application Paper 32-C for admitting additional evidence. The evidence sought to be adduced is a Memorandum of oral gift allegedly executed by Nanhe to whom the suit property belonged. It was filed in support of the claim that thereby the suit property, in respect of which suit for partition was filed, was exclusively gifted to Mohd. Kasim, the deceased father of the petitioners.
(2.) The trial court rejected the application observing that the alleged Memorandum of oral gift could have been brought on record by the original defendant Mohd. Kasim while the suit was pending, had he exercised due diligence. It has been observed that Mohd. Kasim remained alive for almost three years after filing of the appeal, having died on 19.8.2015, but he did not bring on record the alleged Memorandum of oral gift. It has also been observed that Mohd. Kasim had not pleaded about any written Memorandum being in existence, though he set up the theory of oral Hiba in his favour.
(3.) Sri B.B. Paul, learned counsel for the petitioners submitted that the observation made by the appellate court in the impugned order that there was no pleading about Memorandum of oral gift is wholly perverse and based on misreading of the pleadings. He has invited the attention of the Court towards paragraph 17 of the written statement in which it is stated that Nanhe, father of the defendant made an oral gift of the suit property on 21.7.1992 in his favour in presence of witnesses and also executed a Memorandum of oral gift on the same date. According to him, the said pleading was not considered by the appellate court while rejecting the application. He further submitted that the reason for not being able to bring on record the Memorandum of oral gift when the suit was pending was clearly disclosed in the application filed under Order 41 Rule 27 CPC. It was specifically stated that while cleaning the house on 6.9.2017, the appellants managed to lay their hand over the document and when it was showed to their counsel, he advised them to file the same in appeal. According to learned counsel, the explanation furnished was sufficient to admit additional evidence under clause (aa) of sub-rule (1) of Rule 27 of Order 41.;