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JYOTSNA REWAL DUA, J. –

At the stage of arguments in the civil suit, the plaintiffs moved an application for leading additional evidence. The application was dismissed by the learned Trial Court on 24.12.2020. Feeling aggrieved, the petitioner has instituted this petition invoking jurisdiction under Article 227 of the Constitution of India.

2. Facts

2(i) Civil suit was instituted by the plaintiffs seeking decree for declaration to the effect that they were joint owners in possession of the suit land; Revenue entries showing the defendants as owner in possession of the land were wrong & illegal; Mutation No. 290 dated 26.05.1957 attested behind the back of the plaintiffs and their predecessors was wrong, illegal, null & void; Subsequent Mutation No. 381 dated 15.08.1975 sanctioned in favour of State of Himachal Pradesh was wrong & illegal. Consequent revenue entries showing the State of Himachal Pradesh as owner of the suit land were also unlawful and inoperative qua the right, title and interest of the plaintiffs; Mutation No. 447 dated 23.07.1979 sanctioned in favour of defendant No.1 was wrong, illegal and null & void. It does not confer any title; Mutation No. 214 dated 26.08.2008 attested in favour of legal heirs of defendants on demise of Sh. Dalip Singh was also wrong; Family settlement deed dated 01.07.2015 registered in the office of Sub-Registrar Kandaghat, Mutation No.329 dated 04.07.2015, sale deed No. 33/2015 dated 13.01.2015 and consequent Mutation No.320 dated 10.03.2015 were non-est documents having no effect upon right, title and interest of the plaintiffs. Decree for permanent prohibitory injunction for restraining the defendants from causing interference over the suit land was also prayed for.

2(ii) The defendants contested the suit and filed the written statement. The parties adduced evidence in support of their rival claims. The matter was fixed for arguments. At that stage, the plaintiffs moved an application for leading additional evidence. Prayer was made for permitting the plaintiffs to produce the record from Government Primary School Kandaghat and to lead additional evidence in that regard. The application was opposed by the defendants. Learned Trial Court vide order dated 24.12.2020 has dismissed the application giving occasion to the plaintiffs to institute this petition.

3. Submissions

3(i) Learned counsel for petitioner-plaintiff No.1 contended that the learned Trial Court had erred in-law in dismissing the application moved by the plaintiffs for leading additional evidence. That necessity to lead additional evidence arose on account of a statement made by Sh. Dalip Singh @ Dulab Singh before the Additional District Magistrate Solan, wherein he had admitted having come from village Timri, Pauri Gharwal at the age of 8-9 years and living thereafter at Kandaghat. Learned counsel further submitted that subsequently the plaintiffs inquired from the office of Gram Panchayat Sirinagar about the availability of record of residence of Sh. Dalip Singh @ Dulab Singh; He was informed that the record pertaining to the ‘Pariwar’ Register had been gutted in fire; The plaintiff thereafter searched for & obtained the record of admission of Dalip Singh’s children from Government Primary School Kandaghat. The record revealed that Suresh Kumar son of Sh. Dalip Singh @ Dulab Singh had been admitted in Class-I in Government Primary School Kandaghat on 15.03.1973 and passed out his 5th Class on 23.12.1978. The record indicated that Sh. Dalip Singh @ Dulab Singh had been residing and running a shop at Kandaghat; That he had never lived in Silihari and was not doing any agriculture work there. According to learned counsel for the petitioner-plaintiff, the additional evidence should have been allowed by the learned Trial Court. The record was relevant and germane for proving the case set up by the petitioner-plaintiff.

3(ii) Learned Senior Advocate for defendants No.1(i), 1(ii), 3 & 4 defended the impugned order and submitted that the plaintiffs had all along pleaded that Sh. Dalip Singh @ Dulab Singh had never resided in Silihari. That he had been residing at Kandaghat. It was for the plaintiffs to prove their case in affirmative. After closure of the evidence, when the matter was fixed for arguments, the plaintiffs moved an application for leading additional evidence. The application had been justly dismissed by the learned Trial Court as the plaintiffs had failed to prove due diligence on their part in moving the application, more so, when the plea about Sh. Dalip Singh @ Dulab Singh being not a resident of Silihari was already part and parcel of the plaint.

4. Having heard learned counsel on both sides and on considering the case record, I do not find any good ground to interfere with the impugned order passed by the learned Trial Court. This is for the following reasons:-

4(a) The plaintiffs had specifically taken a plea in the plaint about Sh. Dalip Singh @ Dulab Singh being resident of Kandaghat and that he did not have any residence at Silihari. Para-4 of the plaint being relevant is extracted hereinafter:-

“4. That the defendant No.1 at the time of allotment gave false statement and affidavit before the Sub Divisional Collector Kandaghat that he did not own any land anywhere. Secondly, he again misled about his permanent resident of village Kandaghat. In fact, Dalip Singh urf Dulab Singh was owner in possession of land measuring 0- 250 hectare in village Timiri Kapol 2 Pargana Barasyun, Tehsil Pauri, District (janpad) Pauri Gharwal, Uttarachal. Sh. Dalip Singh urf Dulab Singh at the time of allotment was neither resident of village Silhari nor he was having any record in the Gram Panchayat at Kandaghat or else, as such he misled the authority to get the aforesaid land allotted in his favour. As per record of Gram Panchayat Kawarag in which the Silhari village fall, the name of Sh. Dalip Singh urf Dulab Singh is not entered in the Panchayat record at the time of allotment which is apparent that he was not the resident of Himachal Pradesh. The defendant No. 1 was non Himachali, and he did not fall under the definition of Agriculturist nor he was working as agriculture labour, so he was not eligible person to get the land in Himachal Pradesh. The assertion of Sh. Dalip Singh urf Dulab Singh before the Commissioner (ADM) Solan that he is however residing at Kandaghat after leaving his permanent place at Uttaranchal and he was working in the hotel somewhere at Kandaghat did not entitle him to get the land in village Silhari whereas Kandaghat is a part of Siri Nagar Panchayat and he never worked as agriculture labour or otherwise in village Silhari so he was not eligible to get the land in this Mauja, as such the allotment is required to be cancelled out rightly and as per the Rule 13(4) of The Utilization and Vesting Scheme, the commissioner either suo moto or application made by any person that the person who was allotted land is not entitled or eligible for such allotment may cancel the grant of land to such person.”

4(b) The civil suit reached the stage of arguments. By means of application moved by the plaintiffs on 08.12.2020 for leading additional evidence, prayer was made to produce the school record to indicate that Dalip Singh’s son had studied in Government Primary School Kandaghat w.e.f. 15.03.1973 to 23.12.1978 in order to draw an inference that Dalip Singh had never resided at Silihari, but had been a resident of Kandaghat.

4(c) No explanation, even worth the name has been given in the application, as to why the plaintiffs did not adduce this evidence earlier. In view of the case set up by the plaintiffs in their plaint, it cannot be presumed that this fact was not in their knowledge previously or that this fact came to the knowledge to the plaintiffs, subsequently. Learned Trial Court in the impugned order has also referred to the evidence adduced by the parties in the civil suit. The impugned order records that there was nothing in the evidence of the defendants regarding any statement having been made previously about place of residence of Dalip Singh at Kandaghat, which would or could give a renewed cause to the plaintiffs to look for more evidence. Even otherwise, it is the projected case of plaintiffs in the application that Dalip Singh had admitted in his statement made at one point of time before the Additional District Magistrate that he had come from Timri, Pauri Gharwal and had started living at Kandaghat. Be that as it may. The case was set up by the plaintiffs. It was for the plaintiffs to prove the foundational facts on the basis of which they had instituted the civil suit. It was incumbent upon the plaintiffs to have led evidence in affirmative as it was their own pleaded case in the plaint. Therefore, learned Trial Court did not commit any error in dismissing the application moved by the plaintiffs at the stage of arguments seeking opportunity to lead additional evidence.

4(d) The record of the case has established that no new fact had come to the knowledge of the plaintiffs, necessitating their moving for leading additional evidence at the stage of arguments. The fact concerning which, additional evidence was being sought to be led, was already pleaded in the plaint. In fact, it was the foundational fact. Plaintiffs were required to lead evidence in affirmative on the facts pleaded in the plaint. They cannot be allowed to lead such evidence in rebuttal. After closure of evidence, plaintiffs cannot be permitted to plug in the lacuna in their already recorded evidence.

5. The sum total of above discussion is that learned Trial Court had justly declined to exercise its discretion in favour of the petitioners/plaintiffs. No interference is called for in the impugned order dated 24.12.2020 passed by the learned Civil Judge, Kandaghat, District Solan, H.P. Resultantly, the present petition is dismissed. Parties, through their learned counsel, are directed to appear before the learned Trial Court on 06.09.2024.

Pending miscellaneous application, if any, shall also stand disposed of.

Petition dismissed.

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