NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.192 OF 2010 (Arising out of Special Leave Petition (C) No. 10805 OF 2008)

SHYAM GOPAL BINDAL & ORS. ….APPELLANT(S)

VERSUS

LAND ACQUISITION OFFICER & ANR.     ……RESPONDENT(S)

O R D E R

SURINDER SINGH NIJJAR, J.

Leave granted.

2. This  appeal  has been filed against  the  judgment  of  learned  

Single  Judge  of  the  Rajasthan High  Court,  Jaipur  Bench,  dated  

03.01.2008 rendered in S.B. Civil  Second Appeal No.305 of 2006  

whereby the appeal as well as the application under Order 41 Rule  

27 CPC filed by the plaintiff/appellants have been dismissed. The  

appellants claimed to be owners in possession of the suit land.  

3. They claim ownership rights on the basis of the order passed  

by  the  Additional  District  Collector,  Ajmer,  Rajasthan  dated

11.01.1971 passed in Case No.159 of 1970, wherein predecessors-

in-interest of the appellants, namely, Meghraj was declared to be  

owner of the suit land. An application had been filed by Meghraj  

and his brother on 15.12.1959 in the Court of Additional District  

Collector, Ajmer, Rajasthan seeking a declaration that the suit land  

was their personal property.  Upon due investigation the declaration  

was  issued  that  “the  lands  of  the  Khasra  Nos.  

427,440,441,2202,2241 and 2242 admeasuring 6 bighas 6 biswas  

10  biswansi  are  declared  personal  properties  of  the  applicants  

under  Section  6  of  the  Rajasthan  Biswedari  &  Abolition  of  

Jamindari Act.”   

4. Another order was passed in Revenue Suit No.176 of 1989 by  

the  Sub  Divisional  Officer,  Ajmer,  Rajasthan  on  20.06.1994  

whereby Urban Improvement Trust, Ajmer (hereinafter referred to  

as  “UIT”)  was  directed  “not  carry  out  any  construction  without  

applying & initiating legal proceedings, and the Urban Improvement  

Trust, Ajmer has no restriction in carrying out the proceedings of  

acquisition in accordance with practice.” This direction was issued  

on  the  basis  of  the  averments  made  in  the  application  that  the  

appellants are the Khatedar cultivators of the land in dispute.  It  

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was apprehended that UIT wants to construct the road through the  

aforesaid  land without  legally  acquiring  the  same.  The  aforesaid  

judgment of the Sub Divisional Officer was not challenged by the  

UIT.  

5. On  31.10.1994,  the  appellants  submitted  an  application  

seeking demarcation of the land in question which was duly ordered  

by the Sub-Divisional Officer. Thereafter the appellants received a  

letter  dated 23.11.1994 from the UIT disclosing that the land in  

question  had  been  acquired  vide  Award  dated  25.01.1994.  The  

appellants  and  the  other  co-owners  were  asked  to  receive  the  

compensation from the office  of  UIT.  On receipt  of  the aforesaid  

letter  the  appellants  sent  notice  challenging  the  legality  of  the  

award. The predecessors of the appellants Meghraj then filed a civil  

suit  in  the  Court  of  Additional  Civil  Judge  (A.B.)  &  Judicial  

Magistrate  First  Class,  No.2,  Ajmer  seeking  an  injunction  and  

declaration. In the suit the entire acquisition proceedings had been  

challenged on the ground that due notice was not sent to the owner  

of the land. It was pleaded that the land acquisition procedure as  

prescribed under Section 4, Section 5(a) and Section 11(a) of the  

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Land Acquisition Act had not been followed. After completion of the  

pleadings the trial court framed the following issues:

“1. If  the disputed property has been declared as personal  

property of the plaintiff?

2. If this court has jurisdiction to hear this suit.

3. If  the defendant has a right  to dispossess the plaintiff  

from the disputed property?

4. Relief.”  

Issue Nos. 1 and 2 have been decided by the trial court with the  

following observations:

“The  onus  of  proving  the  above  issues  was  on  the  

plaintiff.  But the plaintiff has not produced any type of oral  

and  documentary  evidence  in  support  of  the  above  issues.  

Hence, under these circumstances, both the above issues are  

decided against plaintiff and in favour of defendant.”

With these observations the suit of the plaintiff was dismissed by  

judgment and order dated 26.10.1998.

6. Aggrieved, the appellants filed Civil Appeal No.134 of 1998 in  

the  Court  of  Additional  District  Judge  No.1,  Ajmer,  Rajashtan.  

Along with this appeal an application under Order 41 Rule 27 CPC  

was also filed to adduce additional evidence. The appellants wanted  

to place on record the orders dated 11.01.1971 and 20.06.1994.  

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According  to  the  appellants  the  same were  not  produced by  the  

original plaintiff who passed away during the pendency of the suit.  

The Appellate Court dismissed the appeal as also the application for  

leading additional evidence on the ground that it was essential for  

the plaintiff to prove the pleadings mentioned in the plaint from his  

own evidence. It was noticed that the Trial Court  had fixed the case  

for  evidence  on  behalf  of  the  plaintiff  on  21.03.1998  and  three  

opportunities were afforded for adducing evidence.  Apart from the  

aforesaid  no  other  reason  is  given  by  the  Appellate  Court  for  

rejecting the application for additional evidence.

7. Aggrieved  by  the  orders  of  the  lower  courts  the  appellants  

moved the High Court by way of second appeal which has also been  

dismissed by the impugned judgment dated 03.01.2008. The High  

Court dismissed the appeal with the observation that as the land  

had already been acquired and the award passed as early as on  

15.1.1994, under the provisions of the Land Acquisition Act, 1894,  

no useful purpose would be served by remanding the case to the  

trial court for affording an opportunity to the plaintiff-appellants to  

lead evidence when the civil court has no jurisdiction to set aside  

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the award. In view of the dismissal of  the appeal the application  

under Order 41 Rule 27 was also dismissed.

8. We have heard the learned counsel for the parties. It appears  

that  the  documents  which  were  sought  to  be  produced  by  the  

appellants  formed  the  very  basis  of  the  claim  made  by  the  

appellants in the civil suit.  Their consideration by the court was  

necessary  for  a  just  decision  of  the  case.  The  original  plaintiff  

passed away during the pendency of the civil suit. The documents  

were  thereafter  sought  to  be  brought  on  record  at  the  earliest  

opportunity available to the legal representatives of  the deceased  

plaintiff.  Therefore, it could not be said that the appellants had not  

given any reason as to why the documents had not been produced  

in the trial court. It appears that the dismissal of the suit by the  

trial  court  for  non-production  of  evidence  by  the  plaintiff  was  

mechanically  affirmed by the  Appellate  Court.  It  further  appears  

that  none of  the issues have  been decided by any of  the courts  

below, on merits.  All decisions have proceeded on the basis that  

the plaintiff/appellants have failed to produce evidence in support  

of their claim. The application was not examined keeping in view  

the principles laid down in Order 41 Rule 27 of the Civil Procedure  

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Code. The documents sought to be produced are Judicial Orders  

declaring the ownership rights of the appellants, that have a crucial  

bearing on the merits of the claim put forward by the appellants. It  

was pleaded by the appellants  that  original  plaintiff  having died  

during the pendency of the civil suit the documents could not be  

brought on record as they were not aware of the orders. A prayer  

was  duly  made  before  the  Appellate  Court  which  was  repeated  

before the High Court for remanding the matter with an opportunity  

to adduce the additional evidence. In the facts and circumstances of  

this case, we are of the opinion that the Appellate Court as also the  

High  Court  erred  in  law  in  not  accepting  the  application  for  

additional evidence and not remanding the matter back to the trial  

court.  

9. In view of the above, the appeal is allowed. The judgments of  

the High Court in S.B. Civil Second Appeal No.305 of 2006 dated  

03.01.2008, Additional District Judge No.1, Ajmer in Civil Appeal  

No.134 of 1998 dated 10.02.2006 and Additional Civil Judge(A.B.)  

&  Judicial  Magistrate  First  Class,  No.2,  Ajmer  in  Civil  Suit  

No.34/95(29/95) dated 26.10.1998 are set aside. The application  

for additional evidence is allowed. The matter is remanded back to  

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the trial court for a fresh decision on merits. Plaintiffs as well as the  

defendants  shall  be  permitted  to  place  on  record  any  additional  

documents.

..……….……………………….J (TARUN CHATTERJEE)

      ..…………………………………J       (SURINDER SINGH NIJJAR)

NEW DELHI, JANUARY 11, 2010.        

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