Mohammad Farooq v. Noor Jehan — 1970 DIGILAW 279 (ALL)

JUDGMENT O.P. Trivedi, J. - These are two connected appeals and arise from the saml judgment dated 20-1-1968 passed by the Second Additional Civil Judge, Unnao, affirming the judgments and decrees of the Munsif (North), Lucknow. As the two appeals raise common questions they may be conveniently disposed of by the same judgment. The facts briefly are : Noor Jahan Begum deceased wife of Mirza Jehan Shah alias Laddan Saheb filed suit which was registered as suit No. 146 of 1966 in the Court of the Munsif (North), Lucknow, against the present appellant Mohd. Farooq with the allegations that Mohd. Farooq is a tenant of the plaintiff Noor Jehan Begam in the disputed house, situate in Mohalla Astabal Charbagh, in the city of Lucknow, on a monthly rent of Rs. 15/-. He had, contrary to the terms of the tenancy and without the consent and knowledge of the plaintiff, illegally demolished certain portions of the house and made unauthorised additions and alteration in the house, the subject- matter of the tenancy, which had materially and substantially changed the house. The plaintiff claimed to have terminated the defendant's tenancy through a registered notice dated 9-2-1966 served on the defendant, but the defendant in spite of service of the notice had failed to vacate the houses. On these allegations a decree for ejectment was claimed against the defendant from the disputed house in this suit. 2. Mohd. Farooq denied that he is the tenant of Noor Jahan Begum, plaintiff of the suit and asserted that he is the tenant of her husband Mirza Jahan Shah alias Laddan Saheb who, according to him had let him in possession of the house. It was specifically pleaded in the written statement that the contract of tenancy in respect of the disputed house took place between the defendant Mohd. Farooq and the said Mirza Jahan Shah and that there was no privity of contract between the parties. The maintainability of the suit was on that ground called into question. The impugned constructions were claimed to have been put up with the permission and consent of Mirza Jahan Shah and the same were said to he of a purely temporary character. On the pleadings of the parties the following issues were framed : (1) Whether there is a relationship of landlord and tenant between the parties ? If so its effect ? On the pleadings of the parties the following issues were framed : (1) Whether there is a relationship of landlord and tenant between the parties ? If so its effect ? (2) Whether the defendant has caused material alterations ? If so, its effect (3) To what relief, if any, is the plaintiff entitled ? 3. Noor Jahan Begum had filed another suit against the defendant-appellant in the same court in respect of this house for a decree for permanent injunction restraining the defendant from making constructions or demolition, addition or alteration in the house on the basis of the above allegations. In that suit also the defence of Mohd. Farooq was on the above lines. The suit of the plaintiff was resisted on the ground that she, not being the landlord of the defendant, had no right to a decree and that in any case the constructions being of a temporary character and put up with the approval of the landlord Laddan Saheb, there was no question of injunction. This suit was registered as suit No. 26 of 1966 by the Munsif. In that suit the following three issues were framed by the trial court : (1) Whether the plaintiff is the landlord and has a right to sue ? (2) Whether the suit has become infructuous ? (3) To what relief, if any, is the plaintiff entitled ? 4. On the first issue of the two suits which involved a common question the finding of the Munsif was that according to the admissions made during the trial by both the parties, Mirza Jahan Shah was the original owner of the disputed house, was proved to have transferred the house in favour of his wife Smt. Noor Jahan Begum, the deceased plaintiff, in the year 1956. On the basis of this transfer the Munsif held that the plaintiff became the landlord of the defendant in respect of the house and thereby relationship of landlord and tenant was established between the parties. There was also a finding that the defendant had caused material alteration in the house. On the basis of this transfer the Munsif held that the plaintiff became the landlord of the defendant in respect of the house and thereby relationship of landlord and tenant was established between the parties. There was also a finding that the defendant had caused material alteration in the house. The suit for injunction had not become infructuous and in the result both the suits were decreed in favour of Smt. Noor Jahan Begum, the deceased plaintiff, she having been awarded a decree for ejectment against the defendant from the accommodation in suit and also for a permanent injunction having been granted to her in terms prayed for with costs. Against the judgments and decrees of the Munsif, Mohd. Farooq preferred two appeals which were heard by the Additional Civil Judge, Lucknow, who dismissed the appeals and, therefore, he comes to this court. 5. During arguments, the learned counsel for the respondents filed an application under Order 41, Rule 27, Civil Procedure Code read with section 151 Civil Procedure Code in both these appeals for a permission to file a registered deed of gift dated 7-8-1956 said to have been executed by Mirza Jahan Shah in favour of Smt. Noor Jahan Begum in respect of the disputed house. The main point raised in these appeals by the learned counsel for the appellant was that the lower appellate court was in error in holding on the basis solely of oral evidence consisting of the statement of Mirza Jahan Shah in cross-examination that there has been a transfer of the disputed house by him in favour of his wife, Smt. Noor Jahan Begum, and that transfer, being in lieu of her dower debt, amounted to a sale and the property involved being in value in excess of Rs. 100/- it could be evidenced only by a registered instrument. It is to meet this argument that the respondents seeks permission to file a registered document purporting to have been executed by Mirza Jahan Shah in favour of Smt. Noor Jahan Begam. Order 41, Rule 27 reads as follows : "27(l) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. Order 41, Rule 27 reads as follows : "27(l) 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 appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined." It will be seen that the scope for the reception of additional evidence under Rule 27 Order 41 Civil Procedure Code is extremely limited. I proceed, therefore, to examine whether the respondents succeed in making out the conditions under which additional evidence can be allowed to be produced at this stage. The case does not fall under clause (a) of sub-rule (1) of rule 27 of Order 41 because this is not a case in which the lower appellate court refused to admit this document. The only question is whether this document can be permitted to be filed at this stage under clause (h) of sub-rule (1) of Rule 27. On a consideration of the submissions made by both sides before me I am of opinion that the conditions envisaged by clause (b) of sub-rule (1) of Rule 27 also do not appear to have been satisfied in this case. Under clause (b) additional evidence can be allowed to he produced by the appellate court firstly when the appellate court requires such evidence to be produced to enable it to pronounce judgment and secondly, it can he permitted for any other substantial cause. These applications under Order 41, Rule 27 Civil Procedure Code were moved after arguments on the appeals generally had been addressed to me by the learned counsel for the appellants and submissions had also been made in reply by the learned counsel for the respondents. I have therefore considered the entire evidence that was adduced in this case at the trial and it is clear to me that this document is not required by this Court to enable it to pronounce judgment in these appeals. I have therefore considered the entire evidence that was adduced in this case at the trial and it is clear to me that this document is not required by this Court to enable it to pronounce judgment in these appeals. In my view there is no difficulty in pronouncing judgment in these appeals even on the evidence which is already on the record excluding the document which is sought to be filed. There is also no substantial cause brought out by the respondents which may warrant permission to produce this document before this Court. Indeed, the plaintiff did not attempt to produce the document before the lower appellate court and never sought permission to produce it. The applicants hive failed to make out any cogent reason for their omission to do so. That being so, there is no substantial cause for the grant of permission at this late stage for the production of this document. Undoubtedly, a lacuna of hinatus exists in the evidence of the plaintiff-respondent in the present case from the absence of a registered deed of transfer, but it is well settled that permission to produce additional evidence should not be granted by the appellate court under Order 41, Rule 27 Civil Procedure Code to a party to enable it to fill up such lacuna, hiatus or gap. Such permission should be accorded only if the lacuna or gap in the evidence is such that the appellate court must require additional evidence in order to enable it to pronounce judgment. It has been held by the Supreme Court in the case of Arjan Singh v. Kartar Singh' at page 195, that under Order 41, Rule 27, it is the appellate court that must require the evidence to enable it to pronounce judgment. The true test, therefore, is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. The true test, therefore, is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. In the case of State of U. P. v. Manbodhan Lal, AIR 1957 Supreme Court 912, it was observed that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunas in presenting its case at the proper stage, and to fill in gaps; adding that the position is different where the appellate court requires certain evidence to be adduced in order to anable it to do justice between the parties. It was further observed in this very case that the Supreme Court would not permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant matters before the High Court itself. This last observation has relevance because the respondent, had sufficient opportunity to produce this document not only before the trial court but also before the lower appellate court and had failed to avail of that opportunity. As I have already said, this is not a case where this Court requires this registered deed to be produced in order to enable it to pronounce judgment in these appeals. In Sonabai v. Gotiram, AIR 1956 Bombay 160, it was observed that in a proper case under section 151 Civil Procedure Code where there has been no real trial of the suit it may be open to a court of appeal to exercise its power in his nature of remand but such power can only be exercised where the court of appeal finds it necessary for the ends of justice to prevent abuse of the process of court, and has negligently failed to avail himself of that opportunity, he cannot claim another opportunity to be given to him to lead evidence. The appellate court in such cases should consider additional evidence under Order 41, Rule 27 should be allowed. It was further observed in the same connection that under the Code of Civil Procedure a litigant is not entitled to have a second opportunity to prove his case. In the court of first instance he must lead all the evidence in support of his case. In the case of Raghu Singh v. Govt. It was further observed in the same connection that under the Code of Civil Procedure a litigant is not entitled to have a second opportunity to prove his case. In the court of first instance he must lead all the evidence in support of his case. In the case of Raghu Singh v. Govt. of Orissa, AIR 1959 Orissa 95, it was observed that where to allow additional evidence during the hearing of the appeal would involve a rehearing of the suit and there is no good reason given for failure to adduce such evidence in the trial Court itself, the prayer for adducing additional evidence in appeal can be refused. In the case of Khadim Ali v. Jagannath, 1940 Oudh. Weekly Notes 999, also the appellant sought permission to produce a document. It was observed that evidence to fill up a lacuna in the evidence of a party due to his own negligence cannot be admitted in appeal. Same view was expressed in the case of Jwala Singh v. Jagdish Singh, AIR 1941 Lahore 144. In the case of Ram Das Chakarbati v. Official Liquidator of The Cotton Ginning Company, 9 I.D.R. All. 366, an appellant who had ample opportunity of giving evidence in the Court below and had elected not to do so and sought permission for producing additional evidence at the stage of appeal, this prayer was rejected with the remark that an appellant who had ample opportunity of giving evidence in the court below and elected not to do so, but to rest his case on the evidence as it stood, ought not to be allowed at the stage of appeal to give evidence which he could have given below. 6. There is another aspect of the matter and it is this the document which is sought to be produced at this stage cannot be said to be decisive and conclusive in character, because the northern boundary of the house as given in this document is different from the northern boundary of the house in dispute. In this document the northern boundary is given as a lane and the house of Afsar Begam whereas according to the plaint, the northern boundary of the disputed house is the house of Laddan Saheb. In this document the northern boundary is given as a lane and the house of Afsar Begam whereas according to the plaint, the northern boundary of the disputed house is the house of Laddan Saheb. The learned counsel for the appellant strenuously contended that the house which was transferred through this registered document was not the same which was the subject matter of dispute between the parties. Upon all these considerations, I am of opinion that ground does not exist under law for the grant of permission to produce this registered document at this late stage under Order 41, Rule 27 Civil Procedure Code The applications moved under Order 41, Rule 27 Civil Procedure Code in the two appeals are, therefore, rejected. 7. Coming now to the appeals : The first submission of learned counsel for the appellant is that the lower appellate court was in error in holding that there was relationship of landlord and tenant between the parties. So far as this question was concerned the plaintiff's case rested solely of the transfer of the disputed house in favour of the deceased plaintiff Smt. Noor Jahan Begam by her husband Mirza Jahan Shah. This is, to my mind, a valid submission. It will be noticed that in the plaints of the two suits which gave rise to these appeals it was vaguely pleaded that the defendant is a tenant of Noor Jahan Begam. At the trial, however, no evidence at all was let in to suggest that there was any contract of tenancy between Noor Jahan Begam and Mohd. Farooq. Only one witness was produced for the plaintiff in the case and he was Mirza Jahan Shah. In cross-examination for the first time it was averred by him that his wife Noor Jahan Begam was owner of the house since 1956 before which he claimed ownership in himself. He. however, admitted in cross-examination that the defendant Mohd. Farooq was the tenant of the house on his behalf since before 1956 and claimed to have transferred this house to his wife Noor Jahan Begam in lieu of dower. Mohd. Farooq was the only witness produced for the defendant and he stated that the plaintiff's husband never told him that the plaintiff Noor Jahan Begam had become the owner of the house and asserted that he is the tenant of her husband. Mohd. Farooq was the only witness produced for the defendant and he stated that the plaintiff's husband never told him that the plaintiff Noor Jahan Begam had become the owner of the house and asserted that he is the tenant of her husband. From the evidence produced on behalf of the defendant and plaintiff at the trial it is clear that Noor Jahan Begam claimed to be a landlord of the defendant not on the basis of a privity of contract but on the basis that the defendant was previously the tenant of Mirza Jahan Shah and since he.had transferred the house in favour of Noor Jahan Begam in 1956, by operation of law she had become the landlord of the defendant. That being the stand of Noor Jahan, it was incumbent upon her to clearly plead in the plaints ownership of the house in dispute from Mirza Jahan Shah and on that basis the creation of a relationship of landlord and tenant between the parties. No such claim or title was raised in the plaints with the result that the defendant did not consider himself called upon to deny the title of Noor Jahan Begam or to set up title of her husband Mirza Jahan Shah. But the fact remains that the burden of establishing the relationship of landlord and tenant between the parties lay upon Noor Jahan Begam. It being not her case that there was privity of contract between the parties, the could succeed in establishing that relationship only by proving the transfer of the house in her favour from the previous owner and landlord of the defendant in view of the provision contained in section 109 of the Transfer of Property Act which is in these terms : "109. If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights and, if the lessee, so elects, be subject to all the liabilities of the lessor as to the property, or part transferred so long as he is the owner of it. ", That being the position of law, Noor Jahan Begam could claim to have become landlord of the defendant only by operation of law if she had succeeded in proving that the disputed house had been transferred by the former owner and landlord in her favour. The question, therefore, germane to the controversy was whether Noor Jahan Begam had succeeded in ,proving transfer of the disputed house in her favour by Mirza Jahan Shah and while deciding this question the two courts below had clearly erred in law: In Chulam Abbas v. Razia Begame, AIR 1951 Allahabad 86, a Full Bench of this Court held that antral transfer of immovable property of worth more than Rs. 100/- cannot be validly made by a Muslim husband to his wife by way of gift in lieu of dower debt which also exceeds Rs. 100/- Such a transaction is neither a gift nor a combination of gifts which can be made orally, it is a sale which can be effected by means of a registered instrument only. It follows, therefore, that if there was a transfer of this house by Mirza Jahan Shah in favour of his wife Noor Jahan Begam in lieu of dower debt, as claimed by the former, in the witness-box, then this transfer could be proved only by a registered instrument and not by oral evidence. The courts below misjudged the nature of the transaction in thinking that the transaction could be proved by oral evidence. No registered instrument evidencing the transfer had been produced in the lower courts. Consequently I am obliged to hold that no transfer of this house by Mirza Jahan Shah the admitted landlord of Mohd. Farooq was proved in favour of Noor Jahan Begam. That being so, there was no legal evidence to establish the relationship of landlord and tenant between Noor Jahan Begam and Mohd. Farooq and the findings of the lower appellate court to the contrary must be found to be erroneous. 8. The only other submission made by the learned counsel for the appellant was that the lower appellate court was wrong in the view that the defendant appellant was estopped from denying the title of his landlord Noor Jahan Begam. This submission is also well-founded. Section 116 of the Evidence Act plainly does not apply because whether Mohd. Farooq was tenant of the plaintiff was itself in controversy. Mohd. This submission is also well-founded. Section 116 of the Evidence Act plainly does not apply because whether Mohd. Farooq was tenant of the plaintiff was itself in controversy. Mohd. Farooq did not admit that at any stage she was.his landlord. Estoppel under section 116 of the Evidence Act arises only in these cases where the person whose title is denied by the tenant was admittedly at a certain stage his landlord, whereas in this case far from there being an admission of the defendant on this point it was the main controversy whether Noor Jahan Begam was the landlord of Mohd. Farooq or not, He was therefore, not barred by the principle of estoppel from denying her title. 9. Upon the above conclusions Noor Jahan Begam, the original plaintiff, having failed to establish relationship of landlord and tenant between herself and Mohd. Farooq, she was not entitled to any relief in the two suits, which consequently should have been dismissed. 10. Accordingly, I allow both the appeals, reverse the decrees and judgments passed by the two courts below and dismiss the two suits (Nos. 26 and 146 of 1968) with costs to the defendant-appellant throughout. 11. This judgment shall govern second appeal no. 88 of 1968.