Arun Bhansali, J.

1. This second appeal under Section 100 CPC is directed against judgment and decree dated 17.04.2009 passed by Additional District Judge (Fast Track) No.2, Bikaner, whereby, the judgment and decree dated 26.03.2007 passed by Civil Judge (Junior Division) No.2, Bikaner was upheld.

2. The facts in brief may be noticed thus: the parties are both real brothers, respondent-plaintiff Om Prakash filed a suit for possession and permanent injunction on 31.05.1983 with the averments that the suit property, a house situated at Dhobi Talai Mohalla, Bikaner was purchased by plaintiff on 28.02.1962, which was registered on 13.03.1962 from Ebriahim; the property was self-acquired; as the defendant had no place to reside, the plaintiff permitted him to reside in a Varanda and a Kitchen for some time and rest of the property remained in plaintiffs possession, when the said property was sought by the defendant, it was agreed that as and when the plaintiff would tell him, he would vacate the premises; when the defendant started misusing the permission granted by the plaintiff, he was asked to vacate the said premises, which he refused and threatened, constructing a wall and demolishing the premises. It was prayed that the possession of the suit property be handed over to the plaintiff and the defendant be restrained from constructing a wall and to demolish any part of it.

3. A written statement was filed by the appellant-defendant, it was claimed that the property was not that of plaintiff alone; the family of the parties was a Hindu Undivided Family and plaintiff being elder was Karta Khandan. The family had nucleus received from father in the form of Jewelry, the suit property was purchased from joint family funds in the name of Karta Khandan and both the brothers were joint owners and were in possession; the property was not self acquired. The defendant was in possession as owner of the suit property, objections were raised regarding jurisdiction, limitation and deficient court fees.

4. The trial court framed ten issues. On behalf of the plaintiff, two witnesses were examined and the sale-deed was exhibited. On behalf of the defendant, three witnesses were examined and 24 documents were exhibited.

5. After hearing the parties, the trial court came to the conclusion that when the house was purchased, defendant was 10 years old, the plaintiff was serving with the Railways and has purchased the suit property after obtaining loan and the sale3 deed was executed in his favour; the suit property was in possession of the defendant as licensee; the plaintiff was entitled to possession and permanent injunction. The defendant has failed to prove that the property was in his possession either as a co-owner or as a owner; the suit was within the jurisdiction of the trial court; the suit was properly valued; the suit was within limitation and, consequently, decreed the suit filed by the plaintiff and permanent injunction as prayed was also granted.

6. Feeling aggrieved, the appellant filed first appeal on 24.04.2007 and during the pendency of the appeal, filed an application under Order XLI, Rule 27 CPC on 30.03.2009; another application under Order XLI, Rule 27(3) CPC on 10.04.2009 and an application under Order VI, Rule 17 CPC was filed on 16.04.2009 seeking amendment in the written statement.

7. The first appellate court after analyzing the evidence vide its judgment dated 17.04.2009 came to be conclusion that at the time of purchase of suit property, the plaintiff was the only earning member of the family and the sale of gold-silver (Jewelry) was not proved and, therefore, the finding of the trial court regarding the ownership was justified; the defendant was a mere licensee; there was no plea regarding the partition and, therefore, the plea of jointness was also negated. The documents produced by the defendant was showing his possession, which was not disputed as it was the case of plaintiff that the defendant was in possession of the suit property; the suit was within the jurisdiction of the trial court, was properly valued and was within limitation and the plaintiff was entitled for possession and permanent injunction; by impugned order the trial court also dismissed the two applications filed under Order XLI, Rule 27 CPC and application under Order VI, Rule 17 CPC.

8. It was submitted by learned counsel for the appellant that the first appellate court was not justified in dismissing the applications under Order XLI, Rule 27 CPC and, consequently, the judgment passed by the courts below stands vitiated for non-consideration of material documents filed alongwith application under Order XLI, Rule 27 CPC; rejection of application under Order VI, Rule 17 CPC was also not justified in the facts and circumstances and the same has led to serious injustice to the defendant; even otherwise the findings recorded by both the courts below on the material issue regarding the ownership of the suit property is vitiated for non-consideration of material evidence.

9. It was submitted that during the pendency of the suit, the trial court by order dated 18.05.2005 decided the objection regarding admissibility of the family settlement and on account of the fact that in the suit filed by the appellant for partition based on the said family settlement, the said document was held inadmissible, the trial court by order dated 18.05.2005 held the same to be inadmissible.

10. It was submitted that against the order passed by the trial court in the partition suit holding the document as inadmissible, S.B. Civil Writ Petition No.5765/2007 was filed before this Court, which came to be allowed by order dated 15.11.2007 and, therefore, it was incumbent of the first appellate court to allow the application under Order XLI, Rule 27 CPC and to set aside the order passed by the trial court in this regard and substantial question of law does arise on account of the above circumstance. It was further pointed out that another application filed by the defendant under Order VIII Rule 1 CPC was rejected on 18.08.2006 by the trial court only on account of the fact that the application was filed belatedly as the documents were being filed after 23 years. Another application filed by the defendant was rejected by the trial court on 13.09.2006 refusing permission to lead further evidence after the rebuttal evidence was closed by the plaintiff, which has also resulted in gross injustice to the plaintiff.

11. Per contra, learned counsel for the respondent submitted that the present case is a gross case of misusing the judicial process; the suit was filed way back on 31.05.1983, the suit remained pending before the trial court for 24 years; whereafter the decree was passed by the trial court on 26.03.2007; whereafter in the appeal, applications were filed under Order XLI, Rule 27 CPC on 30.03.2009 and 10.04.2009 and application under Order VI, Rule 17 CPC was filed on 17.04.2009 just when the appeal was at the verge of being decided only with the view to further prolong the litigation, which appeal came to be decided by the impugned judgment on 17.04.2009.

12. It was submitted that the allegations made in the application pertain to a so called partition deed dated 07.06.1982, regarding which, no plea in the written statement was taken, when the suit remained pending for over 24 years and even in the appeal, the application was filed just at the fag end and, therefore, the said document had no implication.

13. The appellate court has considered the applications and has rightly rejected the same and no question of law is involved in the appeal as both the courts have concurrently found, based on the oral and documentary evidence available on record, that the suit property was owned by the plaintiff.

14. I have considered the rival submissions.

15. It is interesting to note here that the partition-deed/family arrangement/agreement sought to be relied on by the defendant is dated 07.06.1982, the suit was filed on 31.05.1983 and the written statement was filed on 10.01.1984, however, there is not even a whisper of such partition deed/family arrangement/agreement in the written statement. The document was produced on 06.08.1985 for taking the same on record. Whereafter, in the year 2005, the same was sought to be utilized during the cross-examination of plaintiff, when the same was rejected by the trial court by order dated 18.05.2005. The rejection was questioned in the appeal filed by the appellant and the order passed by the High Court on 15.11.2007 was sought to be produced alongwith the application under Order XLI, Rule 27 CPC filed on 30.03.2009. Further several documents, which included water & electricity bills pertaining to the years 1980 to 1985 and electricity bills pertaining to the years 1984 to 1991, ration-card etc. were also sought to be produced alongwith the said application under Order XLI, Rule 27 CPC filed on 30.03.2009.

16. Further the application under Order VI, Rule 17 CPC was filed on 16.04.2009 after the learned appellate court had concluded hearing on 10.04.2009 and posted the appeal for judgment for 17.04.2009. The first appellate court in the impugned judgment rejected the applications under Order VI, Rule 17 CPC on account of delay of about 30 years and rejected the application under Order XLI, Rule 27 CPC on the ground that the documents pertained to the possession of defendant, which was not in dispute as the plaintiff has filed the suit for possession and there was no indication of any ownership in the said documents, the application under Order XLI, Rule 27 CPC pertaining to the partition deed/family arrangement/agreement based on the order passed by this Court on 15.11.2007 was rejected holding that there was no reference to the said document in the written statement and no evidence beyond the pleadings can be permitted.

17. The entire conduct of the proceedings between the parties clearly brings out that the plaintiff filed the suit based on allegations that the suit property was purchased by him, the same was self-acquired, defendant was permitted to reside in a portion being brother and now the plaintiff wanted possession of the suit property. The written statement was also specific that the suit property was joint as the same was purchased out of family funds obtained from sale of Jewelry belonging to the mother and, therefore, the defendant was entitled to remain in possession.

18. Though, the partition deed/family arrangement/agreement is said to have been executed merely 18 months prior to the dated of filing of the written statement, there was no whisper about the said document and the trial proceeded as it is, the document was filed in the year 1985, however, consequential steps apparently were not taken. The trial court rejected the document as inadmissible, however, in another proceedings between the parties, the document was held to be admissible on challenge before this Court, but then, there was no plea regarding partition/arrangement/agreement in the written statement and, therefore, the first appellate court was justified in coming to the conclusion that in absence of any plea in the written statement, even if the document is held to be admissible, the same was of no consequence, so far as the present suit was concerned. Merely because in another suit for partition based on the said document, the document has been held admissible, cannot be a reason enough to allow application under Order XLI, Rule 27 CPC.

19. The filing of amendment application under Order VI, Rule 17 CPC on 16.04.2009 after the arguments were concluded on 10.04.2009 and the matter was posted for judgment on 17.04.2009 appears to be not bona fide on part of the defendant as even otherwise as held by Honble Supreme Court in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 Supreme Court 993, there is no hiatus between the two stages of reservation of judgment and pronouncement the judgment and, therefore, the application could not have been filed/entertained. Still the first appellate court has dealt with the same and has rightly rejected the same being highly belated.

20. Further the appellate court was justified in rejecting the application under Order XLI, Rule 27 CPC as the documents sought to be produced were of no consequence based on the pleadings of the parties. Further, there was absolutely no explanation for producing the documents after passage of almost 25 years and the standard plea taken was that while going through the old documents, the documents were found apparently being absolutely baseless could not be accepted.

21. So far as the merits of the case was concerned it was the case of appellant that the property was purchased after selling the Jewelry of the mother, however, the defendant in its own statement, stated that he was not aware as to how much goldsilver his mother had, as he was young; his mother did not sale gold-silver in his presence; how much gold-silver was left after fathers death, he was not aware, which statement does not prove the defendants plea. The most crucial witness for the said aspect could have been defendants mother, who admittedly has not been produced by him.

22. The material documentary and oral evidence available on record has been thoroughly scrutinized by both the courts below and findings of fact regarding the ownership of the suit property have been recorded, which cannot be said to be vitiated on account of any consideration of inadmissible evidence/ignorance of admissible evidence and, therefore, no substantial question of law is involved in the present appeal.

Consequently, there is no substance in the second appeal and the same is, therefore, dismissed with costs.

Appeal dismissed.