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TMI Blog2017 (4) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... -9 of reply on merits in written statement that defendants were living in the suit property as owners in their own rights and their possession at the most can be termed as adverse or hostile and too that after the order passed by the Probate Court is upheld by the High Court. The lapse and failure on the part of the applicant/appellant no-1/defendant no-1 to bring on record the document in question alongwith the written statement or any time later thereto, even during the course of evidence or later with permission of Court; brings into fore gross negligence on the part of applicant/appellant no-1 in production of the document in question at the opportune time before the Trial Court or even mentioning the same in the pleadings in the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Ld. Counsel for applicant/appellant no-1 has relied upon :- 1)Billa Jagan Mohan Reddy Anr. Vs. Billa Sanjeeva Reddy Ors., (1994) 4 SCC 659; 2)Nishant Hannan Vs. South Delhi Municipal Corporation, 2014 SCC Online Del 4053; 3)Tola Ram Sons Vs. State Bank of India, 2014 SCC Online Del 2172; 4)T. Anjanappa Ors. Vs. Somalingappa Anr. (2006) 7 SCC 570; 5)AEG Carapiet Vs. A.Y. Derderian, AIR 1961 Calcutta 359 (V 48 C 74); 6)Mst. Qaiser Jahan Begum Vs. Messers Ramzan Karim Sons, 1998 (46) DRJ 7. 5. Answering respondents in reply opposed the application tooth and nail submitting the document sought to be placed on record has absolutely no relevance to the adjudication to the instant appeal. The document is a noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing on the decision of this appeal and does not decide the rights of the parties nor is pertinent to any issue framed in the suit. Instant application is a tool of dilatory tactics, whereas, the appeal is pending for about 11 years and when the High Court of Delhi has made adjudication of the appeal time bound, the appellants are enjoying the stay order while sitting in possession of suit property, appellant no. 1 has preferred this application. 6. Order XLI Rule 27 CPC reads as under :- 27. Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the suit property viz., the portion shown in red colour in the site plan in property bearing no. 310, Chuna Bhatti, Mathura Road, Badarpur, New Delhi, in their own rights, because this property was purchased in the name of late Sh. Chellu Ram, whereas, father of defendants/appellants contributed money for the purchase of the property. Later in para-9 of reply on merits in said written statement following is the additional contention of the applicant/appellant no-1/defendant no-1 that :- The defendants have been living in the suit property as owners in their own rights and their possession at the most can be termed as adverse or hostile and that too after the order passed by the probate court has been up-held by the High Court. Till t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troyed by their own evidence/deposition/testimonies of their case of ownership by purchase under the sale deed. It had been held that this aspect itself was sufficient to dismiss the case of the plaintiffs on the ground of ownership by purchase because once a plea of adverse possession is pleaded and then sought to be proved, the depositions to substantiate the plea of adverse possession destroys and proves false the case of ownership by purchase of suit plot. 10. In the case of Billa Jagan Mohan Reddy Anr. (supra), when the matter was decided on 28.01.1994, Rule 1 of Order XIII was not amended. Before amendment by Section 23 of Act 46 of 1999, as per Rule 1 of Order XIII, the relied upon original documents were to be M-61282/2016 Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure, 1973 of date 08.04.1987, issued by Special Executive Magistrate is simply on the premise that the applicant/appellant no-1 had come across the same few days back from 11.04.2017, while carrying out substantial repair works. Neither it was pleaded in the written statement by appellants/defendants that any such proceedings ever took place before SEM in year 1987 nor afore elicited additional document sought to be placed on record was placed before the Trial Court during Trial at any stage of the matter nor the said document is with respect to the portion of the suit property bearing no. 310, Chuna Bhatti, Mathura Road, Badarpur, New Delhi. It is the version of appellants/defendants as elicited from para-9 of reply on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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