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2001 DIGILAW 269 (ORI)

NARADA MAHARANA v. PRAMILA KUMARI DEI

2001-06-22

P.K.MOHANTY

body2001
P. K. MOHANTY, J. ( 1 ) THE plaintiff is the appellant against the confirming judgment of the Courts below dismissing the suit for declaration. ( 2 ) THE plaintiff-appellant filed a suit for declaration that the sale deed executed by Dharamu Maharana in favour of Biki Dei, daughter of Champa, through her first husband, is invalid in law and for a partition of his half share therein. It was claimed that the suit property is the joint family property of both the branches, Gatei Maharana and Nitei Maharana. The learned trial Court held that the suit property is the exclusive property of Nitei's branch wherein the plaintiff has no right, title or interest and accordingly, dismissed the plaintiff's suit. ( 3 ) THE plaintiff carried the appeal to the first appellate Court. During pendency of the appeal before the first appellate Court, the appellant filed an application under Order 41 Rule 27 C. P. C. to admit into evidence two documents namely (a) a deed of family settlement of the year 1940 between Dharamu under whom the defendant claimed title, on the strength of the registered sale deed (Ext. C) and Parikhita, father of the plaintiff wherein the share of both were recorded; (b) record of rights in respect of some of the properties recording it as service tenure land "desha Hata Badhei Jagiri" under lot Nos. 4 and 5, which was claimed to have been purchased by registered sale deed (Ext. C ). The application for additional evidence was rejected and the appeal was dismissed by the appellate Court. The Second Appeal is against the aforesaid judgments. ( 4 ) THE lower appellate Court rejected the application for additional evidence under Order 41 Rule 27 CPC on consideration of the first document i. e. the family settlement of year 1940, on the grounds (a) the petition does not mention any reason as to how the appellant had no occasion to know about the document and he could discover the same on a particular day; (b) the schedule property in the document bears the same serial number as plaint schedule and, therefore, two possibilities are there i. e. the documents were in custody of the parties when the plaint was drafted and/or the document being manufactured in accordance with the plaint schedule of the properties. The learned lower appellate Court found that the later possibilities is more; (c) signature of Dharamu in the document does not tally with the signature in the registered sale deed. ( 5 ) SRI B. Patnaik, learned counsel for the appellant submits that where the documents sought to be let in by way of additional evidence has direct and substantial bearing on the issues involved in the suit, it comes under the category of any other substantial cause within the meaning of Order 41 Rule 27 (i) (b) CPC and, therefore, the learned lower appellate Court grossly erred in law in rejecting the application. It is further contended that the finding that the deed of family settlement is a manufactured document only on the grounds that the serial numbers of the plots in the deed tallies with the numbers in seriatum with the plaint schedule and there is no mention in the petition of any reason as to why the appellant had no knowledge of the deed and discovered on a particular day is an error of record, since the petition clearly disclosed that the plaintiff was a minor when his father died, but he had a faint memory that his father was talking of such a document and that on search, he could not get the document during trial of the case but subsequently after thorough search, he could find it out and as such the petition for introducing the same as additional evidence is an error of record and without any material whatsoever and, therefore, liable to be set aside. ( 6 ) THE learned counsel strenuously argues that the finding of the learned lower appellate Court that the signature of Dharamu in the deed of family settlement, sought to be introduced by way of additional evidence does not tally with the signature in the registered sale deed, therefore, is a manufactured document, was palpably wrong and misconceived inasmuch as the learned Court could not have taken into itself the task of comparing the signature himself without the aid of any other evidence on record and/or sending it for expert opinion. It is submitted that since the application under Order 41 Rule 27 CPC was filed for introducing two documents, a deed of family settlement and the record of rights in respect of lot Nos. 4 and 5 of Ext. It is submitted that since the application under Order 41 Rule 27 CPC was filed for introducing two documents, a deed of family settlement and the record of rights in respect of lot Nos. 4 and 5 of Ext. C, the appellate Court could not have rejected the application only on considering the desirability of accepting the deed of family settlement without considering the material bearing of the record of rights for a just decision of the case, specially when the record of rights is a public document. It is submitted that the record of right is a public document and it clearly shows lot Nos. 4 and 5 are lands recorded as communal service land, "desha Heta Badehi Jagir" which is inalienable as per the provision of Section 235 of the Orissa Tenancy Act, inasmuch as these two lots are covered under Ext. C, the registered sale deed on the strength of which the Courts below have based their finding to hold that the property was not the joint family property and it stood validly transferred by the registered sale deed (Ext. C ). ( 7 ) SRI A. Mukherjee, learned Senior Advocate for the respondent on the other hand submits that both the Courts below having concurrently held that the suit properties is not the joint family property as alleged in the plaint, it cannot be disturbed on re-appreciation of evidence at the second appellate stage. It is further submitted that the learned lower appellate Court has rightly rejected the application of the appellant under Order 41 Rule 27 CPC, after elaborately dealing with the matter for good reasons inasmuch as admission of additional evidence in appellate stage is a discretionary order and must be based on sound judicial discretion. If the appellate Court is able to pronounce the judgment on the materials available before it without taking into consideration the additional evidence sought to be adduced the second appellate Court should not disturb such finding. It is submitted that the Courts below on the basis of Exts. H, J, K, L, M, N, R and S have come to the conclusion that schedule 'b' properties are not the joint family properties and since those documents are contemporaneous in nature and of unimpeachable character, there was no difficulty in pronouncing the judgment and as such, the additional evidence at the belated stage has rightly been rejected. H, J, K, L, M, N, R and S have come to the conclusion that schedule 'b' properties are not the joint family properties and since those documents are contemporaneous in nature and of unimpeachable character, there was no difficulty in pronouncing the judgment and as such, the additional evidence at the belated stage has rightly been rejected. The learned Senior Advocate submits that the application under Order 41, Rule 27 CPC in this Court has been filed at a belated stage and there is no explanation as to why such application could not be filed till 19-4-1995 and as such it is liable to be rejected. ( 8 ) THE appellant had filed an application under Order 41 Rule 27 CPC for admitting two documents as additional evidence namely, the deed of family settlement of the year 1940 and the record of rights in respect of lot Nos. 4 and 5 in Ext. C which were recorded as "desha Hata Badhei Jagiri land" which according to the appellant were inalienable under Section 235 of the Orissa Tenancy Act and as such, such land having been covered under the sale deed (Ext. C), such transfer is void. The learned lower appellate Court in the impugned judgment considered the application for additional evidence in respect of one of the two documents i. e. deed of family settlement only, but the reference or otherwise of the second document i. e. the record of rights has not been considered nor rejected. The rejection of the application on consideration of one of the documents sought to be introduced as additional evidence is erroneous in law inasmuch as it vitiates the ultimate decision in the case. The law is well settled that if the Court below has either considered a document which is inadmissible in law or failed to consider the document which is admissible while deciding an appeal, such decision is valnerable and liable to be upset by the second appellate Court. ( 9 ) THE learned lower appellate Court has rejected the application for additional evidence on the ground that the petition does not mention any reason as to how the appellant had no occasion to know about the document and he could discover the existence on a particular day. ( 9 ) THE learned lower appellate Court has rejected the application for additional evidence on the ground that the petition does not mention any reason as to how the appellant had no occasion to know about the document and he could discover the existence on a particular day. The plaintiff-appellant had taken the plea that he had attained the majority in 1940 and was unacquainted with the property affairs then, but he had a faint memory about the family settlement between Parikhita and Dharamu which he heard from his father and that after search he could not get the document. However, after dismissal of the suit after thorough search of old papers in the house he could come accross the document and, therefore, filed an application for admitting additional evidence. In view of such explanation given, the learned lower appellate Court could not have observed that no reason was assigned as to why the document was earlier not filed. ( 10 ) THE learned lower appellate Court on merit also considered the deed of family settlement and took into itself the task of comparing the signature of Dharamu in the deed of family settlement with the signature contained in the registered sale deeds and found that the signature does not tally and, therefore, not a genuine signature. Law is well settled that in a case with regard to the genuineness of the signature of handwritings it is hazardous for the Court to take into itself the task of comparing the signature and find by himself the genuineness of it, without taking aid of other evidence on record. The learned lower appellate Court could not have come to a conclusion on a bare perusal of the signature in both the documents to hold that the signature is not genuine. ( 11 ) IN Laxmi Bai v. A. Chandravati, AIR 1995 Orissa 131 a Division Bench of this Court has ruled that even though a Court is competent to compare the disputed writing of a person with other writings which are admitted or proved to be his writings under Section 73 of the Evidence Act, such comparison by the Court is with a view to appreciate properly the other evidence available on record on the question of writings. It would, however, be too hazardous for a Court to use his own eyes and merely on the basis of personal comparison decide a very vital issue between the parties centering round the handwriting or signature of a person. ( 12 ) THE Apex Court in O. Bharathan v. K. Sudhakaran, 1996 (1) OLR (SC) 290 while considering the genuineness of a signature found by the trial Court on comparing the disputed signature have ruled that it is too hazardous for the Court to compare the disputed signature with the admitted signature and come to an independent finding without the aid of evidence of any handwriting expert or other evidence on record. The Apex Court reiterated the view expressed in Durga Prasad Agarwalla v. Binayendranath Banerjee, (1996) 82 CLT 737. This Court has also expressed the view that the Court has the power to compare the disputed writings with the admitted or approved writing to ascertain the genuineness thereof, but as a matter of prudence the Court should not venture such comparison by itself and should take the assistance of the expert's opinion in arriving at a finding. ( 13 ) IN view of the decisions referred to (supra) the learned lower appellate Court, could not have rejected the appellant's application under Order 47 Rule 27 CPC on the ground that the signature appearing in the deed of family settlement which was sought to be introduced as additional evidence carrying signature of Dharamu does not tally with the signature appearing in the sale deed and, therefore, is not a genuine document. Such a finding could only be arrived at after recording the evidence when the signature is disputed. The observation of the learned lower appellate Court that the document appears to be a manufactured one since the schedule tallies with the serial numbers of the plaint schedule is equally erroneous in law and would amount to pre-judging an issue. ( 14 ) THE second item of evidence sought to be introduced was the record of rights in respect of lands contained in lot Nos. 4 and 5 of Ext. C, the registered sale deed on the strength of which the defendant claimed his title. The learned lower appellate Court has not considered and discussed the relevance or otherwise of the record of rights, but rejected the application only considering the first item of document. 4 and 5 of Ext. C, the registered sale deed on the strength of which the defendant claimed his title. The learned lower appellate Court has not considered and discussed the relevance or otherwise of the record of rights, but rejected the application only considering the first item of document. The record of rights are public documents inasmuch as the record of rights sought to be admitted reflects that the land in lot Nos. 4 and 5 to have been recorded as Service Tenure Land "desha Hata Badhei Jagiri" which is inalienable under Section 235 of the Orissa Tenancy Act. If the defendant claims his title on the basis of Ext. C which contains lot Nos. 4 and 5 land and they were not alienable, the transfer of such properties would have a direct and substantial bearing in the case. The learned lower appellate Court ought to have considered the admissibility of this document which has not been done. The decision, therefore, is unsustainable. In this Court also the appellant has prayed for admitting these documents which according to the respondent is not to be entertained at this belated stage. But if the learned lower appellate Court had illegally rejected the application under Order 41 Rule 27 CPC for admitting additional evidence without considering the matter in its proper perspective and having proceeded to decide the appeal on merit basing on the available evidence, such decision cannot be sustained in law. However, since I am proposing to remit the matter for reconsideration of the matter, now I need not consider the application for additional evidence filed in this Court since such an application can be dealt with by the lower appellate Court. ( 15 ) THE learned counsel for the appellant has referred to a decision in Chunilal Ojha v. Mul Shankar Ojha, AIR 1961 Orissa 169 to contend that in view of the provisions of Order 41 Rule 27 (aa) CPC the learned lower appellate Court ought to have allowed the application in admitting the deed of family settlement of the year 1940 and the record of rights in respect of communal Jagiri land in Ext. C have a substantial bearing in the case and are necessary for a just decision and the documents were not available in spite of exercise of due diligence by the plaintiff since at the time the plaintiff's father died he was a minor. C have a substantial bearing in the case and are necessary for a just decision and the documents were not available in spite of exercise of due diligence by the plaintiff since at the time the plaintiff's father died he was a minor. The Division Bench of this Court in Chunilal's case (supra) was considering the admission of additional evidence in terms of Clause (b) of Order 41 Rule 27 CPC applicable to Orissa then which is similar to the provision of Clause (aa) of Order 41 Rule 27 CPC inserted by Act 104 of 1976 with effect from 1-2-1977. The Division Bench at Paragraph 8 thereof held as follows :-"so far as the first sale deed is concerned the petitioner is entitled to rely on the aforesaid Clause (b) of Rule 27 (1), Order 41, CPC. His father died when he was a child hardly one year old. It is the defendant's case that the plaintiff remained mostly in Halvad in Kathiwar except for a period of two years for his study in the Gujarathi School at Cuttack from 1931 to 1933, and that, he had absolutely no interest in the Cuttack properties. However diligent the plaintiff might have been it was difficult for him to trace out the existence of the sale deed of 1923 by which his uncle Lakhmishankar purchased some properties in Cuttack in his name. In any view of the case, additional evidence must be permitted so far as this document is concerned. " ( 16 ) IN any view of the matter, the learned lower appellate Court ought to have considered the application of the appellant filed under Order 41 Rule 27 CPC in accordance with law in coming to a proper finding. Considered in the light of the decisions referred to above and the record of rights in question the Court might have taken a different view. The contention of the learned counsel for the respondent that both the Courts' having concurrently held that it is not joint family properties and such finding being based on appreciation of evidence both oral and documentary, such finding of facts are not to be disturbed in the Second Appeal. The contention of the learned counsel for the respondent that both the Courts' having concurrently held that it is not joint family properties and such finding being based on appreciation of evidence both oral and documentary, such finding of facts are not to be disturbed in the Second Appeal. There is no dispute over the proposition raised, but in the present case the rejection of the appellant's application was erroneous as has been found earlier and, therefore, if the learned lower appellate Court has considered the admissibility of the additional evidence not in accordance with law and on impermissible premises and rendered the judgment on available evidence such a finding will not be binding in a Second Appeal. The decision referred to by the learned counsel for the appellant in Natha Singh v. The Financial Commissioner, Taxation, Punjab, AIR 1976 SC 1053 , B. K. Ghose v. Dwijendra Chunder Ghose, AIR 1951 Calcutta 414 and Sudarshan Prasad v. Radha Kishun Ram (deceased by L. Rs.); AIR 1982 Allahabad 218 are on a different context inasmuch as in view of the decisions referred to in the preceding paragraphs there is no escape from the conclusion that the decision cannot be sustained and, therefore, the judgment and decree passed by the learned appellate Court has to be set aside and so it is done. ( 17 ) IN that view of the matter, I allow the Second Appeal, set aside the judgment and decree passed by the learned Subordinate Judge (now Civil Judge (Senior Division)), Jagatsinghpur passed in Title Appeal No. 14 of 1983 and remit the matter for fresh consideration of the appellant's appeal along with application under Order 41, Rule 27 CPC in accordance with law and the observations made herein. Since the matter is already old, I direct that the learned lower appellate Court would expeditiously deal with the matter and the appeal shall be disposed of within a period of six months from the date of receipt of this judgment. In the result the Second Appeal is allowed in-part, but there shall be no order as to cost. The lower Court's records be transmitted forthwith. Appeal partly allowed.