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2008 DIGILAW 186 (AP)

Annam Malla Reddy v. Bangi Nagaiah

2008-03-05

G.YETHIRAJULU

body2008
ORDER: This Revision Petition has been preferred by the defendant/Appellant in A.S.No.3 of 1996 on the file of the Senior Civil Judge, Huzurabad. 2. The plaintiffs filed the suit for partition of the suit schedule property into three equal shares and to allot one such share to the plaintiffs with separate possession contending that they were in joint possession and enjoyment of the schedule property. The first defendant remained ex parte and the second respondent, who is the appellant in the Appeal, appeared through his counsel and filed written statement disputing the claim of the petitioners and contended that after the death of the father of the D-1, D-2 and his brother Bhadraiah alienated their share of land in the suit survey number including the area covered by the road and subsequently D-1, his brother Bhadraiah and their elder brother's adopted son Nagaiah jointly executed an agreement of sale in favour of D-2 and after receiving an amount of Rs.2,000/- as advance, he was put in possession of the suit land along with the share of Bhadraiah and since the date of sale, he was in possession and enjoyment of the same and his name was also recorded in the revenue records as possessor and entries were also made in the pahanies from 1979-80 to 08-07-1988. 3. The Trial Court, after framing appropriate issues, considered the oral and documentary evidence and decreed the suit directing partition of the suit land among the sharers. Being aggrieved by the same, the second defendant, who is the petitioner herein, preferred A.S.No.3 of 1996 on the file of the Senior Civil Judge, Huzurabad. During the pendency of the Appeal, the petitioner filed I.A.No.734 of 1994 under Order 41 Rule 27 of C.P.C. praying to permit him to file the ROR certificates as additional evidence in the Appeal and mark them as exhibits. The Appellate Court disposed of the Appeal through the Judgment, dated 30-07-1997 and the Revision Petitioner preferred S.A.No.770 of 1997 on the file of the High Court. The High Court allowed the Appeal and remanded the matter for fresh disposal with a further direction to dispose of the matter at the earliest point of time. 4. The Appellate Court, after hearing both parties, dismissed the Application by observing that the petitioner is not entitled to file the documents. The High Court allowed the Appeal and remanded the matter for fresh disposal with a further direction to dispose of the matter at the earliest point of time. 4. The Appellate Court, after hearing both parties, dismissed the Application by observing that the petitioner is not entitled to file the documents. Being aggrieved by the same, the petitioner preferred the present Revision contending that the documents proposed to be filed, which are Form 13-B and 13-C certificates issued under Section 5-A (4) of the A.P. Rights in Land and Pattedar Pass Books Act, 1971 validating the unregistered sale deed mentioned therein respect of land in Sy.No.673/B of Molangur Village and the said documents are relevant, material and are admissible as additional evidence under the provisions of Order 41 Rule 27 of C.P.C. The petitioner further contended that he could not produce those certificates in the lower Court due to filing of the said certificates before the M.R.O., therefore, they could not be filed during the trial of the suit. 5. The learned counsel for the respondents submitted that the certificates were issued by the M.R.O. during the pendency of the suit by conducting a parallel enquiry, which is not permissible under law. The document sought to be relied on is purported to be a simple sale deed which is described as agreement of sale, dated 04-11-1973 marked as Ex.B-1 and on behalf of the appellant several documents including certified copies of pahanies from the years 1979-80 to 1986-87 were also filed which are marked as Exs.B-4 to B-10. 6. The lower Court observed that though the petitioner claimed to have purchased the property from D-1 and two others, the certificates were issued without the knowledge of the plaintiffs and his father. When the agreement of sale covered by Ex.B-1 is subject matter of adjudication in the main suit and the parties were allowed to lead evidence and in fact the petitioner has adduced evidence in proof of the same, simultaneous proceedings before the revenue authorities can not be contemplated to supplement or supplant the evidence and the pleadings adduced before the Court and the findings thereon. The lower Court further observed that from the provisions of Order 41 Rule 27 of C.P.C., parties are not entitled to produce additional evidence in appeal as of right. However in certain situations they would be permitted subject to the conditions specified therein. The lower Court further observed that from the provisions of Order 41 Rule 27 of C.P.C., parties are not entitled to produce additional evidence in appeal as of right. However in certain situations they would be permitted subject to the conditions specified therein. It is not the case of the petitioner that the lower Court has refused to admit these documents, therefore, Rule 27 (1) (a) has no application. Similarly, it is not the case of the petitioner that such evidence was not within his knowledge or could not be produced despite due diligence before passing of the decree. Therefore, the second clause has no application to the facts of the present case. So far as Rule 27 (1) (b) is concerned, this Court does not require such documents to be produced to pronounce Judgment. Similarly, there is no substantial cause shown by the petitioner to allow such documentary evidence. Therefore, the contention of the petitioner that these documents were filed before the same authorities for implementation and therefore could not be produced is no ground. 7. The petitioner assailed the impugned order by contending that it is a crucial document, which decides his title, who is a purchaser of the property covered by the partition suit. Unless the documents are marked and sufficient opportunity is given to prove the sale transaction, he will suffer great loss. 8. The learned counsel for the respondents opposed the Revision Petition by contending that the petitioner ought to have taken appropriate steps when the suit was pending before the trial Court from 1988 to 1996. 9. The learned counsel for the petitioner relied on the following Judgments in support of his contention that it is a fit case to allow additional evidence: In WADI v. AMILAL, 2002 (6) JT 16 , the Supreme Court held that Order 41 Rule 27 deals with the production of additional evidence in the appellate Court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate Court to cure a lacuna or fill up a gap in a case. The excepts to that principle are enumerated thereunder in clauses (a), (a) and (b). The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate Court to cure a lacuna or fill up a gap in a case. The excepts to that principle are enumerated thereunder in clauses (a), (a) and (b). Whereas (b) says that if the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate Court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. It is for the Court to consider the material available on record and if it feels that the admission of additional evidence is necessary to pronounce a satisfactory judgment in the case, the court can pass appropriate orders. In the case covered by the above decision, the documents in question would throw light on the germane issue and is therefore necessary for pronouncing Judgment in the case on question. The appellate Court erred in declining to admit the documents as additional evidence. In SARADA v. MANIKKOTH KOMBRA RAJENDRAN, (1996) 8 SCC 345 , the Supreme Court held that when there is an agreement between the parties mentioning that on payment of a specified sum by the purchaser to the vendor, who is in possession of the property, the property of the vendor shall be given to the purchaser and in those circumstances, the appellate Court ought to have received the agreement as additional evidence and considered the effect thereof by either recording the evidence of the parties or calling a finding in this behalf from the trial Court. The Court further held that without receipt of the document and the evidence in consideration thereof, it would not be possible to render fair justice between the parties. 10. The Court further held that without receipt of the document and the evidence in consideration thereof, it would not be possible to render fair justice between the parties. 10. The learned counsel for the respondents submitted the following decisions in support of his contention that the documents shall not be received at the appellate stage: In STATE BANK OF INDIA, HYD v. ZEENATH X-RAY AND ECG CLICNIC, HYD, 2007 (4) ALD 506 , the matter regarding order 41 Rule 27 of C.P.C. came up for consideration. The learned Judge, after examining the record, held that the documents cannot be received at the state of appeal or invoking Order 41 Rule 27 to fill up the lacuna in this case. In the case covered by the above decision, the suit was filed seeking preliminary decree of mortgage in respect of plaint schedule property, title deed in respect of which allegedly deposited with plaintiff-bank for creating equitable mortgage and also for personal decree against defendants for payment of the said amount. No evidence to show that the 8th defendant deposited the title deeds with the plaintiff bank with an intention to create an equitable mortgage over the suit property. Therefore, in the absence of such mortgage, the suit filed in 1996 beyond the period of three years from the date of last payment is barred by limitation. In NEELAM BHADRAMMA v. MARRI LAKSHMAMMA, 2006 (3) ALD 292, a learned single Judge observed that the documents purported to be filed are available during the pendency of litigation before the trial Court and despite the same, these documents were not produced before the trial Court and to substantiate the plea of either ouster or adverse possession, the appellant- defendant intends to rely on these documents. 11. There is no dispute regarding the principles laid down in the above Judgments. But, the facts of the present case are different from the facts covered by the above cases, therefore, I am constrained to come to a different conclusion regarding the additional evidence petition filed before the appellate Court. 12. The plaintiffs want to mark the R.O.R. certificates as additional evidence. The lower Court dismissed the Application by observing that the certificates sought to be produced are dated 26-09-1991 which is subsequent to the date of filing of the suit. 12. The plaintiffs want to mark the R.O.R. certificates as additional evidence. The lower Court dismissed the Application by observing that the certificates sought to be produced are dated 26-09-1991 which is subsequent to the date of filing of the suit. The certificates were issued during the pendency of the suit by conducting a parallel enquiry by the Mandal Revenue Officer, which is not permissible under law. 13. The petitioner intends to enforce the orders of the M.R.O. passed during the pendency of the suit instead of filing the same before the trial Court. The petitioner placed all evidence basing on the R.O.R. proceedings and the same was considered by the trial Court, therefore, the petitioner is not entitled to file such documents as additional evidence. 14. It is the specific plea of the second defendant that the first defendant executed an agreement of sale in his favour on 04-11-1973 for a consideration of Rs.30/- per gunta and after receiving an advance of Rs.2,000/-, he was put in possession of the suit land. It is the further contention of the second defendant that as the first defendant refused to execute the sale deed, he raised a dispute before the elders and the elders advised him to continue in possession of the proportionate extent of land to which the amount was paid. 15. As per the terms of agreement, the first defendant agreed to execute the sale deed after payment of the balance of sale consideration. The agreement of sale was said to be on white paper. No sale deed was executed till the date of filing of the suit, therefore, no title was transferred to the second defendant in respect of the suit land. The document was described as an agreement of sale, but not as a sale deed. An unregistered sale deed can be regularized by the Mandal Revenue Officer, after complying the required formalities. But, when it is an agreement of sale and when there is no transfer of title from the first defendant to the second defendant, it is not known how the M.R.O. obliged to give the certificate in favour of the second defendant as if he is the owner of the property and as though he got title through the said document. 16. It is the contention of the plaintiffs that the first defendant never executed the document. 16. It is the contention of the plaintiffs that the first defendant never executed the document. The first defendant neither filed the written statement nor entered the witness box to support the plea of the second defendant. On the other hand, the document discloses no survey number in which the land covered by the said agreement of sale is situated. It is described with the local name. There was no material placed by the petitioner before the Court to accept that the suit land and the agreement of sale land are one and the same. The lower Court considered the oral and documentary evidence placed before the said Court and disposed of the suit. Though the Appellate Court can permit additional evidence to be adduced for giving a Judgment, the documents filed by the second defendant are the documents obtained subsequent to the filing of the suit and there is no record as to how the M.R.O. issued the said certificate on the basis of an agreement of sale. 17. The lower Court, after going through the entire material, rightly came to a conclusion that the petition to file additional evidence cannot be allowed and dismissed the Petition. 18. After going through the entire material, I am of the view that there are no grounds to interfere with the order of the lower Court. 19. The Revision Petition is, accordingly, dismissed. No order as to costs.