Kazi Taufiquor Rahman v. Bewa Elachi Bibi — 1973 DIGILAW 18 (GAU)

Judgement SEN, J. :- This is an appeal under Clause 15 of the Letters Patent against the judgment of Pathak, J. dismissing the plaintiff appellants appeal arising from a suit instituted by him for ejectment of the defendant-respondent from the suit land on the ground that it was required by him (plaintiff) for his bona fide use. The plaintiffs suit had earlier been dismissed by the learned Sadar Munsiff, which dismissal was affirmed by the learned Additional District Judge. Gauhati upon appeal. 2. The plaintiffs case is that he is the absolute owner of the suit land, which devolved on him by virtue of a registered deed of gift from one Kazi Kayambir Rahman. The defendant-respondent was a tenant of Kazi Kayambir Rahman and upon the aforesaid gift became the plaintiffs tenant. The defendant was served by the plaintiff with a registered notice to vacate the suit land, which she failed to do. The suit for ejectment was filed thereon, with results as stated aforesaid. 3. The learned single Judge has affirmed the judgment of the trial court and of the appellate court below. He has held that there being a categorical denial by the defendant of tenancy of the suit land under the plaintiff, the plaintiff was required to prove that he had acquired title to the suit land by virtue of deed of gift executed by Kazi Kayambir Rahman in his favour. The learned single Judge has observed that no issue regarding the alleged deed of gift and the plaintiffs acquisition of title to the suit land by virtue of such deed of gift had been framed in the suit. As such, the learned single Judge held that the courts below were correct in directing the plaintiff to file a regular suit for declaration of his title to the suit land. There was no doubt, a submission before the learned single Judge by the counsel for the plaintiff-appellant that the question of title by virtue of deed of gift should be decided in this very suit. That submission was rejected by the learned single Judge on the ground that the question of the plaintiffs title could not be adjudicated upon adequately and properly in this suit for ejectment simpliciter. 4. That submission was rejected by the learned single Judge on the ground that the question of the plaintiffs title could not be adjudicated upon adequately and properly in this suit for ejectment simpliciter. 4. This appeal under Clause 15 of the Letters Patent is thus, against the judgment of the learned single Judge, primarily on the ground that the question of the plaintiffs title should have been adjudicated in this suit for ejectment and the learned Judge in not having done so fell into an error. 5. Mr.P. Choudhuri, the learned counsel for the plaintiff has also prayed that the judgment in First Appeals Nos.14 and 33 of 1962 be allowed to be adduced as further evidence under Order 41 R. 27 C.P.C. in order to establish the validity of the deed of gift of the suit land by Kazi Kayambir Rahman in favour of the plaintiff. 6. We have first to consider the points on which an appeal under Clause 15 of the Letters Patent may, be heard : secondly, whether further evidence under Order 41 Rule 27, C.P.C. may be allowed in such an appeal and, if so, be allowed in the instant case: and thirdly, whether the question of title may properly be adjudicated in a suit for ejectment sim-pliciter. 7. In our opinion, the scope of an appeal under Clause 15 of the Letters Patent is clearly defined. The appellant in an appeal under this clause is not ordinarily entitled to be heard on points which have not been raised before the Judge from whose judgment the appeal is preferred. What has to be seen is whether the judgment of the single Judge is correct on the fact or law as presented before him or whether he has taken into account an irrelevant fact or failed to take into account a material fact or had applied any erroneous principle of law although a point of law going to the root of the case can be raised as also a question relating to jurisdiction or constitutionality of a statutory provision. This was the view, as we find, taken by their Lordships in Ahsan Elahi v. Mehr Elahi, AIR 1950 East Punj 302. This was the view, as we find, taken by their Lordships in Ahsan Elahi v. Mehr Elahi, AIR 1950 East Punj 302. No doubt, a Letters Patent appeal is in the nature of a rehearing of the appeal as before the single Judge, but such appeal before the Letters Patent Bench should ordinarily be confined to the points of law or fact that had been canvassed before the single Judge. 8. Mr.P. Choudhuri has invited our attention to the decision in Dawood Mohomed v. Union of India. AIR 1969 Guj 79 in support of his submission that an appellate court hearing an appeal under Letters Patent is bound to hear the appeal on questions of law and of fact and that the Letters Patent Bench has all the powers which can be exercised by a single Judge in the appeal before him. We have carefully gone through the judgment cited above and we find that their Lordships observed : "Since clause 15 of the Letters Patent appeal does not lay down any limitation of any sort either as regards the subject matter of the appeal or the powers of the appellate Court, the appellate Court hearing the appeal under the Letters Patent is bound to hear the appeal both on questions of law and questions of fact, which were agitated before the learned Judge against whose judgment the appeal is preferred." 9. We are in complete agreement with the passage quoted above and we also hold that the questions of law and fact that were canvassed before the learned single Judge may be canvassed again before this Bench, but no additional ground may be covered unless it relates to jurisdiction or is a point of law that goes to the root of the case or is concerned with the vires of a statutory provision. 10. The question that falls for determination in this Letters Patent Appeal is whether the leraned Judge was right in holding that on the facts and law as presented to him the question of plaintiffs title to the suit land could be adjudicated upon adequately and properly in this suit for ejectment simpliciter and whether to prove the validity of the deed of gift and his title derivative therefrom, the judgment in F.A. Nos. 14 and 33 of 1962 (Assam) should have been allowed to have been adduced. 11. 14 and 33 of 1962 (Assam) should have been allowed to have been adduced. 11. It is not disputed by the learned counsel, appearing for the plaintiff appellant, that there was no application before the single Judge under Order 41 R. 27, C.P.C. for production of the judgment in F.A. Nos. 14 and 33 of 1962 (Assam) in which the validity of the deed of gift in favour of the plaintiff is said to have been determined. That Judgment was delivered on 31st August 1967. while the judgment of the learned single judge was delivered on 3-6-1969. In other words, although the judgment in F.A. Nos. 14 and 33 of 1962 (Assam) was available to the plaintiff-appellant, no steps had been taken to bring the same on record before the learned single Judge. We cannot therefore say that the learned single Judge was wrong, on the facts or on law presented to him, to hold that the question of title of the plaintiff should first be determined in a regular suit for declaration of title to the suit land, before the plaintiff could succeed in his suit for ejectment since there was a denial of relationship of landlord and tenant by the defendant. The learned Judge was quite right in holding that in view of the fact "no issue regarding the alleged deed of gift and plaintiffs acquisition of title to the suit land by virtue of it was framed in the suit" the plaintiff should first get his title declared in a regular suit. The judgment in F.A. Nos. 14 and 33 of 1962 was not produced by the plaintiff before the learned single Judge nor was permission sought for its production. He was not thus, in a position even to consider how far that deed of gift was pertinent to the present suit land. We cannot, therefore, hold that the learned single Judge had been erroneous in his decision. 12. Mr.P. Choudhuri then submits that since a Letters Patent Bench has all the powers that could have been exercised by the Single Bench, and since it was within its competence to allow production of additional evidence under Order 41 Rule 27. C.P.C., this Letters Patent Bench should now do so. 12. Mr.P. Choudhuri then submits that since a Letters Patent Bench has all the powers that could have been exercised by the Single Bench, and since it was within its competence to allow production of additional evidence under Order 41 Rule 27. C.P.C., this Letters Patent Bench should now do so. We agree that the provision in that order is couched in a language which is wide enough to include within its fold a Letters Patent Appeal from the judgment by a Single Judge. But before doing so, the question that will have to be considered is whether this is a fit case in which the judgment in F.A. Nos. 14 and 33 of 1962 should be allowed to be adduced as additional evidence. As held in K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526 . "...... the appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment it still considers that in the interest of justice something which remains obscure should be filled up so that it may pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code." 13. Again, as has been held by their Lordships of the Privv Council in Parsotim Thakur v. Lal Mohan Thakur, AIR 1931 PC 143- "It may be required to enable the Court to pronounce judgment, or for any other substantial cause but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applied to adduce fresh evidence, but when on examining the evidence as it stands some inherent lacuna or defect becomes apparent." 14. In other words additional evidence may be allowed to be adduced under Order 41, Rule 27. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applied to adduce fresh evidence, but when on examining the evidence as it stands some inherent lacuna or defect becomes apparent." 14. In other words additional evidence may be allowed to be adduced under Order 41, Rule 27. C.P.C., when an appellate court, after examining the evidence on record comes to the conclusion that the evidence as it stands discloses some inherent lacuna or defect or that its judgment cannot be pronounced in the absence of such additional evidence. 15. In the instant case, we do not find that some inherent lacuna or defect has become apparent or that something which remains obscure requires to be filled up in the interest of justice. Moreover, the applicability of the judgment in F.A. Nos. 14 and 33 of 1962 to the present suit land has been strenuously challenged by the respondent. 16. In a Letters Patent appeal, the Letters Patent Bench, no doubt, has all the powers that could have been exercised by the learned single Judge. But we are not certain that even if an application under Order 41, Rule 27, C.P.C. had been made before the single Judge for production of the Judgment in F.A. Nos. 14 and 33 of 1962, the single Judge would have been justified in allowing that application. The declaration of the validity of the deed of gift in that judgment was with regard to the suit land in those cases and may or may not be pertinent to the suit land in the present appeal : in any case, its relevance has been strongly challenged. It would have been better, therefore, as held by the learned single Judge that the plaintiff should obtain a declaration of his title to the suit land in a proper suit before a competent Court of law. 17. Mr.P. Choudhuri has drawn our attention to the decision in Union of India v. Angrup Thakur, AIR 1969 Delhi p. 279, where in a Letters Patent Appeal additional evidence had been allowed. In that case, we note, that the appellant did not seek production of evidence in the form of statements of witnesses or public or private document which might require rebuttal. In that case, we note, that the appellant did not seek production of evidence in the form of statements of witnesses or public or private document which might require rebuttal. He merely sought production of an instrument whereby the President of India had, with the consent of the Government of Punjab entrusted to the latter the functions of the Central Government under the Land Acquisition Act. and against which the respondent did not claim to lead any evidence in rebuttal or even attempted to question the relevancy thereof. 18. The third question is whether in an ejectment suit simpliciter, where the plaintiff has failed to prove the relationship of landlord and tenant, a court should grant an equitable relief on the basis of title. 19. It has been held in Mohammad Mian v. Jugeshwar Prasad AIR 1951 Pat 550 - "If the question of title has been raised in the trial of the suit and has been investigated the parties knowing about it and adducing evidence on the point, and court is in a position to give the pltf. the relief asked for on the basis of his title, there is no reason why the court should drive the pltf. to file another suit in order to get this relief, provided that the plaintiff has done nothing to disqualify him from receiving equitable relief." The same view was taken in Kasturi Devi v. Shripal Singh, AIR 1954 Pat 128 . In the Full Bench decision reported in (1903) ILR 25 All 498, the plaintiff was granted decree on his title although he had failed to make out his case as to the letting. That was however on the ground that "the fact that no distinct issue as to the plaintiffs title had been framed could not be construed to the prejudice of the plaintiff inasmuch as the issue had in fact been tried, and it could not be said that the defendant had been in any way taken by surprise." 20. In the instant case, the question of title to the suit land was never put in issue, nor was any evidence adduced with regard to the title or any finding arrived thereon. It would, therefore, not be open to the plaintiff in this suit for ejectment filed on basis of tenancy, to obtain a decree for eviction and possession, on basis of his alleged title. 21. It would, therefore, not be open to the plaintiff in this suit for ejectment filed on basis of tenancy, to obtain a decree for eviction and possession, on basis of his alleged title. 21. After a careful consideration of the submissions made by the learned counsel for both the sides, we find that no case has been made out for interference with the judgment and order, appealed against. This appeal accordingly fails. There will, however be no order as to costs. 22. BAHARUL ISLAM, J. :- I agree. Appeal dismissed.