- (1.) THIS is an appeal by the defendant Gilliram against the appellate judgment and decree of the learned Civil Judge, Gangapur. It arises out of a suit brought by the plaintiff-respondent against the defendant-appellant for a declaration that a land measuring 2 Yards East West and 1-3/4 Yards North South, more fully described in para 2 of the plaint belonged to the plaintiff. An injunction was also prayed for against the defendant that he be restrained from making pacca constructions over the land in dispute. The defendant denied that the land in suit belonged to the plaintiff and set up his own title therein. The learned Munsif of Gangapur who tried the case framed several issues, but the main issue in the case was issue No. 1 which runs as follows; - "whether the land mentioned in para 2 of the plaint on which kachha latrine stands is owned and possessed by the plaintiff. "
(2.) BOTH the parties produced oral and documentary evidence and the learned Munsif came to a finding that the land in dispute was owned and possessed by the plaintiff. He also held that the defendant had put up obstructions thereon and he consequently, granted both the reliefs to the plaintiff namely that of the declaration and of injunction. Against the decree of the first court, the defendant went in appeal to the court of the Civil Judge, Gangapur, but the appeal was dismissed. The defendant has consequently, come in second appeal. I have heard Mr. D. M. Bhandari on behalf of the appellants and Mr. C. L. Agarwal on behalf of the plaintiff. Mr. Bhandari's main argument may be summarised as follows: - 1. That from the evidence on the record, it was proved that the land in dispute had been purchased by the defen-dant Dhurmal, father of Hiralal, from the then Jaipur State in the year 1924 and subsequently, the defendant himself had been made to pay nazrana by an order of the authorities of the then Jaipur State for the land of which the land in suit is a part. (2) The defendant produced certain documents in the first court but the prayer was wrongly refused (3) That the defendant has been able to discover certain very important and material documents after the decision of the case by the two lower courts which he wanted to file now and that they may be accepted as additional evidence in the case. (4) That the defendant had raised a question that the construction of the latrine in question on the land in dispute would cause a nuisance to the defendant but this question has not been considered by the lower courts. Before dealing with the first and fourth points, I may dispose of the 2nd and 3rd points first. So far as the third point is concerned, it has been decided by the Privy Council that under Order 41, Rule 27 of the Civil Procedure Code which makes a provision for the production of additional evidence in the appellate court, a party cannot be allowed to patch up the weaknesses in the case. The additional evidence can be admitted by the appellate court only when a court itself requires any document to be produced or any witnesses to be examined to enable it to pronounce judgment or for any other substantial cause. The first case in which this view was taken is the case of Parsotim Thakur vs. Lal Mohan Thakur (l ). In that case the thumb impression of one Mst. Bataso was questioned, but no steps were taken in the first court to have the said thumb impression identified by the thumb impression expert. In appeal the questioned thumb impression was sent for special comparison by an expert. Their Lordships held that the lower appellate court was wrong in allowing that additional evidence. Their Lordships observed - "the provisions of sec. 107 as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak points of his case and fill up omissions in the court of appeal. " In a later case of Sir Mohammad Akbar Khan vs. Mt. Motia (2), the same view was taken and it was held that the power of allowing additional evidence in an appeal arises only where the court requires further evidence for one of the two causes specified. An order under Rule 27 (1) (2) cannot be made to enable a party to fish out evidence in order to prove his case and make up the lacuna which then existed. In that case, the lower appellate court allowed a copy of mutation from the settlement record of 1883/84 of the village of Mardan, and it was suggested that the document would help the case of the appellant. It was observed that - "the document in question was a copy of a public document which the appeal ant could have put in Evidence at the trial It was certainly not required to enable the learned District Judge to; pronounce judgment, nor does there appear to have been any other substantial cause for which the Judge required the document. " In the present case, I have been taken through the evidence and I do not find that without the five documents which are mentioned in the application of the appellant dated the 6th August, 1951, this court will be unable to pronounce judgment in this case. I am therefore, not disposed to allow the appellant to produce the above additional evidence in this second appeal. Coming to the second point, under O. 13, R. I, of the Civil Procedure Code, the parties and their pleaders have been enjoined to produce at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intended to rely and which has not already been filed in court. Then under R. 2 of the said Order it has been provided that no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of R. 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. The defendant sought to produce some documentary evidence in the first court on the date of arguments i. e. , the 17th of January, 1951. The evidence of both the parties had been closed by then. The only reason which was shown in the application was that Hiralal, one of the witnesses of the defendant, had turned hostile and, therefore, the necessity had arisen that the said documents be produced in evidence. The documents which the defendant wanted to produce at that stage related to the title of Hiralal and of the defendant. The issue on the question of title had been framed as far back as 10th of October, 1949. The defendant ought to have been ready with his documentary evidence regarding title on the date of issues He, however, did not file the documents on that date and sought to file them on the 17th of January, 1951, although about twenty dates had been fixed in between, in this case. The defendant ought to have known that on a question of title oral evidence will be of little value when documentary evidence could be produced. I do not understand how the defendant could think that Hiralal's oral evidence will be sufficient substitute for the documentary evidence which it was his duty to produce at the proper stage. The defendant's case is that Hiralal had purchased more than 300 square yards of lands from Jaipur State in the year 1924 and that the land in suit formed a part thereof and that a patta was given to Hiralal for the same. It is curious that among the documents which were produced even on the 17th of January, 1951, there was neither the said patta nor its certified copy. The patta was the best evidence which could prove whether the land in suit was a part of the land purchased by Hiralal. All other documents which were sought to be produced were either the reports of certain municipal officers of Jaipur State or the order of the nizamat in a case in which the plaintiff or his predecessors in interest were not parties or a certain file which related to the complaint about Hiralal having let out some constructions on the said land to some tenants. So far as the file is concerned, I can say atonce that no party has a right to summon the original record unless it be for the purpose of proving certain certified copies of some papers on that record which the opposite party denies and which require proof. Such a record should not have been summoned for any other purpose at any stage not to say of the stage at which the application was made for summoning it. I cannot, therefore, say that the first court improperly exercised its discretion in rejecting the request of the defendant for summoning the said record. As regards the two other papers, I may say that they could not be strictly said to be relevant in the case in which the plaintiff was a party. The best evidence as has been said, would have been the patta in favour of Hiralal and it would have been useless waste of time of court to allow the said documents to be produced at that late stage because they could not furnish any convincing proof of the fact that the defendant or Hiralal had purchased the land in suit. I do not find any reasons to allow the defendant to put in those documents which are not very material and which were not produced at the proper stage, Coming now to points Nos. 1 and 4, 1 may dispose of point No. 4 before I take up the main point No. 1. On a reading of the written statement I nowhere find that the defendant had taken any specific plea with regard to nuisance. If he thought that there was something in his written statement from which the case of nuisance could be implied, he ought to have been vigilant enough to say that any issue was framed on that point. This he did not do and I am not prepared to say at this stage that the lower courts erred in not considering the question of nuisance. Coming to the first point which is the main point, it goes without saying that the question is entirely one of fact and normally it cannot be raised in second appeal. It was however, argued by the learned counsel for the appellant that certain documentary evidence has been misconstrued. I have gone through the documentary evidence which is on the file and 1 do not find any ground whats over for upholding this contention. The plaintiff has filed the sale deed executed by the Jaipur State in his favour. It is dated the 12th of July, 1947 and is Ex. 2 on the record. This sale deed clearly says that the land of the (taharat) latrine, measuring East West 2 Sq: yards and North South If Sq: yards was also sold to the plaintiff. The oral evidence also shows that there was kachha latrine of the plaintiff on the said land. Some of the defendant's witnesses also admitted that the land was used for the easing of the children. Both the lower courts have believed the evidence produced by the plaintiff. In the sale deed executed by Hiralal in favour of the defendant, there is no mention of this lane of latrine. It was argued by Mr. D. M. Bhandari that Hiralal had purchased 322 Sq: yards of land from Jaipur State in the year 1924 and the land in dispute formed a part of that land. He has not been able to convince me from any documentary evidence on the record that the land in suit forms a part of the land which is said to have been purchased by Hiralal in the year 1924. I do not find any such legal error in the judgments of the lower courts on this point as would induce me to interfere with this finding of fact. To my mind no sufficient grounds have been made for interference with the decree of the lower courts. The appeal is dismissed with costs to the contesting respondent. . ;