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2012 DIGILAW 6 (SIK)

Lhakila Tongden Lepcha v. Passang Tongden Lepcha

2012-05-17

PERMOD KOHLI, S.P.WANGDI

body2012
JUDGMENT PERMOD KOHLI, J. This Regular First Appeal arises out of Judgment and Decree dated 28-02-2011 passed in Civil Suit No. 5 of 2010 by the learned District Judge, Special Division II, East Sikkim at Gangtok, dismissing the suit filed by the plaintiffs-appellants herein for declaration, recovery of possession and consequential reliefs. 2. The brief and relevant facts leading to the filing of the present appeal are recapitulated hereinafter. 3. Parties to the suit are relations. The following pedigree depicts the interrelation between the parties : (See Table on next page) 4. It is the common case of the parties that the suit property was owned by late Athup Tshering Lepcha, father of Late Nochi Tongden Lepcha, father of Defendant and Late Rinzing Tongden Lepcha, husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 and 3. The plaintiffs case, as projected in the suit, is that late Athup Tshering Lepcha, who was the absolute owner of the cardamom field bearing plot Nos. 71 and 76, during his lifetime gifted the suit land to his son Rinzing Tongden Lepcha by way of an oral gift as was prevalent during that period. Rinzing Tongden Lepcha, thus became the absolute owner of the property i.e. land measuring 5.2300 Hectares. It is further stated that Rinzing Tongden Lepcha died on 09-01-1996 leaving behind the plaintiffs as his legal heirs and successors. It is further alleged that his name is still recorded in the records of rights maintained in the office of the District Collector, Mangan, North Sikkim. Two plots, bearing plot Nos. 71 and 76 later came to be recorded into one plot bearing plot No. 80 in the revenue records. The plaintiffs further assertion is that late Rinzing Tongden Lepcha out of love and affection had left the suit land in the care of his brother Nochi Tongden Lepcha who predeceased Rinzing Tongden Lepcha and after the death of Nochi Tongden Lepcha his son Passang Tongden Lepcha, i.e. the defendant, became the caretaker of the suit land on behalf of the plaintiffs. It is further stated that plaintiff No. 3 for and on behalf of all the plaintiffs filed an application dated 07-06-2002 before the District Collector, North for the mutation of the suit land in the name of the plaintiffs for which a notice was issued inviting objections from the public. It is further stated that plaintiff No. 3 for and on behalf of all the plaintiffs filed an application dated 07-06-2002 before the District Collector, North for the mutation of the suit land in the name of the plaintiffs for which a notice was issued inviting objections from the public. The defendant objected to the mutation claiming the entire suit land by virtue of a Partition Deed dated 10-06-1971. The S.D.M., Mangan after hearing both the parties advised them to approach the appropriate Court for settlement of the title over the suit property. It is under these circumstances, the plaintiffs filed the present suit. 5. The defendant contested the suit claiming that the suit property came to the share of late Nochi Tongden Lepcha, father of defendant and Rinzing Tongden Lepcha, husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 and 3 by virtue of Partition Deed of 1955 (Annexure A-1). The predecessors of the parties thus became co-sharers of suit property. It is further alleged that suit property further fell in the share of late Nochi Tongden Lepcha, his father, on the basis of the Partition Deed dated 10-06-1971 executed between the Nochi Tongden Lepcha and Rinzing Tongden Lepcha. It is further stated that the property was further partitioned between the defendant, his two brothers and two sisters, i.e. the sons and daughters of late Nochi Tongden Lepcha by virtue of another Partition Deed dated 09-11-1991. He also raised various pleas including the limitation. 6. On the basis of the pleadings of the parties, the trial Court framed following issues, vide its order dated 07-08-2004 : ISSUES 1. Whether the suit land belongs to late Rinzing Tongden, husband of the plaintiff No. 1 and the father of plaintiff Nos. 2 and 3 who got the suit land from late Athup Lepcha. 2. Whether the suit land belonged to late Nochi Tongden, father of defendant and late Rinzing Tongden, the husband of plaintiff No.1 and father of plaintiff Nos. 2 and 3 jointly till 1971 and whether there was any partition between them including the suit land. If so, to what effect? 3. Whether the suit is bad for non-joinder of necessary parties. 4. Whether the suit of the plaintiffs is barred by limitation, principles of waiver, acquiescence and estoppels. 5. Relief or reliefs. 7. Parties led their documentary and oral evidence. Issue Nos. If so, to what effect? 3. Whether the suit is bad for non-joinder of necessary parties. 4. Whether the suit of the plaintiffs is barred by limitation, principles of waiver, acquiescence and estoppels. 5. Relief or reliefs. 7. Parties led their documentary and oral evidence. Issue Nos. 1 and 2 have been decided against the plaintiffs holding that the plaintiffs have failed to establish that the suit property was gifted to their predecessor in interest late Rinzing Tongden Lepcha by his father late Athup Tshering Lepcha, as no evidence has been led regarding the oral gift nor the plaintiffs have established that the oral gift was prevalent and was a valid mode of transferring of ownership. On the issue No. 2, the trial Court has also held that the defendant has succeeded in establishing the Partition Deed dated 29-01-1955 (Exhibit A-1), whereby the suit property had fallen in the share of the predecessors in interest of the parties to the suit. It has also been held that the defendant has also established the partition between late Nochi Tongden Lepcha and Rinzing Tongden Lepcha vide Partition Deed dated 10-06-1971 (Exhibit B-1) whereunder the suit property came to the share of Late Nochi Tongden Lepcha. Similarly, the trial Courts recorded findings regarding the factum of partition of the property between the defendant and his other co-sharers (brothers and sisters) vide Partition Deed dated 09-11-1991. The trial Court also decided the issue No.4 against the plaintiffs holding that the suit is barred by limitation and for this purpose also the Partition Deed dated 10-06-1971 has been relied upon. 8. We have heard the learned counsel for the parties initially on 03-04-2012 and thereafter on 24-04-2012, 08-05-2012 and 17-05-2012. During this period both the parties filed applications for leading additional evidence under Order XLI Rule 27 of Code of Civil Procedure, (for short, CPC). 9. Civil Miscellaneous Application No. 27 of 2012 has been filed by the respondent for summoning the record of Civil Misc. Case No. 93 of 1992 from the record of the learned District Judge, disposed off on 15-04-1995, Civil Misc. Case No. 39 of 1994 and Civil Misc. 9. Civil Miscellaneous Application No. 27 of 2012 has been filed by the respondent for summoning the record of Civil Misc. Case No. 93 of 1992 from the record of the learned District Judge, disposed off on 15-04-1995, Civil Misc. Case No. 39 of 1994 and Civil Misc. Case No. 108 of 1995 alleging that an application for grant of Succession Certificate was filed after the death of his father in the year 1991 and a joint compromise petition signed by late Rinzing Tongden Lepcha, predecessor in interest of the plaintiffs and the respondent was presented before the District Judge, whereupon a Succession Certificate was issued, which was also extended late on. It is alleged that in the proceedings for grant of Succession Certificate, late Rinzing Tongden Lepcha had admitted the Partition Deed dated 10-06-1971. The applicant (respondent) prayed for summoning of the entire record as he is unable to secure the copy despite making application for the same, though Xerox copies of the extension of Succession Certificate issued by the learned District Judge, East and North at Gangtok and joint compromise petition have been placed on record. Another Application, CMA No. 34 of 2012 dated 15-05-2012, has been filed by the respondent seeking to place on record six letters, said to have been written by late Rinzing Tongden Lepcha in his own hand in Nepali and in English, alleging that these documents were not in the knowledge of the respondent during the trial and it was only while going through the old documents the younger brother of respondent, namely Shri Jigmee Tongden Lepcha that these letters have been discovered. The respondent accordingly prays for placing these documents on record and referring the same to the handwriting experts to compare the handwriting of late Rinzing Tongden Lepcha, as the Partition Deed was denied by the plaintiffs, appellants herein. 10. The plaintiffs, appellants herein, have also filed an application, CMA No. 32 of 2012 on 08-05-2012 seeking leave of the Court for production of additional evidence under Order XLI Rule 27, CPC to exhibit computerized Khatian Parcha bearing Khatian No. 18 and Khasra No. 80 measuring 5.23000 Hectares already placed on record by the plaintiffs/applicants during the trial. It is stated that the plaintiffs made an application dated 19-06-2008 before the trial Court during the trial to file an additional documents disclosed in Paragraph 5 thereof. It is stated that the plaintiffs made an application dated 19-06-2008 before the trial Court during the trial to file an additional documents disclosed in Paragraph 5 thereof. Two sets of documents were reflected in Paragraph 5 at Sl. Nos. 1 and 2. Documents at Sl. No. 1 comprises the land rent receipts regarding the payment of ground rent, whereas the document at Sl. No. 2 was the computerized copy of Parcha Khatian. The trial Court vide its order dated 11-11-2008 partially allowed the application permitting the production of land rent receipts, however, Khatian Parcha was not allowed to be produced and proved holding that the said document has already been filed in the suit as Exhibit 3. It is stated that the Khatian Parcha, Exhibit 3, pertains to old survey operations carried out in 1950-51 regarding plot Nos. 71 and 76 whereas the computerized Khatian Parcha sought to be produced vide application dated 19-06-2008 pertains to the survey operation of 1980-81 which was a different document and the trial Court wrongly rejected the prayer of the applicants/plaintiffs to entertain the document and thus deprived the plaintiffs of their right to lead the evidence. 11. It may be noticed here that the plaintiffs had earlier also filed an application dated 10-12-2011, being CMA No. 113 of 2011, in the present appeal seeking direction for sending the documents, Exhibits B and D i.e. Partition Deed dated 10-06-1971 and application filed by defendants father for mutation respectively to the handwriting experts for opinion as allegedly the signatures of late Rinzing Tongden Lepcha differ with each other. This application was filed in the backdrop of the findings recorded by the trial Court regarding the validity of the Partition Deed dated 10-06-1971. 12. During the course of hearing of the appeal on 08-05-2012 and 17-05-2012, the learned counsel appearing for the parties while concluding the arguments on the merit of the appeal also prayed for production of additional evidence by both the sides. Learned counsel appearing for the parties submitted that they have no objection if both the parties are allowed to lead their evidence as prayed for in their respective applications to arrive at the truth and for an effective adjudication of the controversy in the suit. 13. The powers of the Appellate Court are prescribed under Section 107, CPC. The same is reproduced hereunder : 107. Powers of Appellate Court. 13. The powers of the Appellate Court are prescribed under Section 107, CPC. The same is reproduced hereunder : 107. Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. 14. From the perusal of the Section, it is evident that the appellate Court has wide range of powers and jurisdiction to not only determine the case finally, but to remand, frame issues and refer them for trial and also to take additional evidence or to require such evidence to be taken. As a matter of fact, under Clause (2) the appellate Court shall have the same powers as that of the trial Court. Sub-section (1) of Section 107, CPC regulates the power of the appellate Court saying that the powers are subject to such conditions and limitations as may be prescribed. Sub-section (16) of Section 2, CPC defines the expression prescribed means prescribed by Rules. Rules contained in The First Schedule are the rules framed under the Code by virtue of Section 121, CPC. 15. Order XLI of CPC deals with the Appeals from Original Decrees and prescribes the procedure, the manner and method to decide the appeals. Rule 27 of Order XLI, CPC empowers the appellate Court to permit production of additional evidence as prescribed under Section 107, CPC subject to conditions enumerated therein. Rule 27 of Order XLI is re-produced hereunder : 27. Production of additional evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. Rule 27 of Order XLI is re-produced hereunder : 27. Production of additional evidence in Appellate Court. (1) 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 (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, 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. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 16. From the conjoint reading of both these provisions it can be conveniently inferred that the appellate Court has jurisdiction to permit production of additional evidence under the conditions and situations provided under Rule 27 of Order XLI i.e. Clause (a), where the trial Court has refused to admit evidence which ought to have been admitted; Clause (aa) party seeking to produce additional evidence, establishes that despite the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed and under Clause (b) the additional evidence is permissible when the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. It thus emerges that the parties to the appeal are entitled to produce additional evidence only under this situation prescribed under Clauses (a) and (aa) respectively whereas under Clause (b) it is the requirement of the Court and not of the parties, notwithstanding the power of both the parties to lead additional evidence in support of their respective claims. It thus emerges that the parties to the appeal are entitled to produce additional evidence only under this situation prescribed under Clauses (a) and (aa) respectively whereas under Clause (b) it is the requirement of the Court and not of the parties, notwithstanding the power of both the parties to lead additional evidence in support of their respective claims. It is the duty of the Court to determine whether the situation contemplated under Clauses (a) and (aa) of Rule 27(1) exists whereunder the parties acquire the right to seek production of additional evidence or else the Court itself is unable to decide the appeal on the basis of the evidence on record and requires additional evidence, whether oral or documentary to enable itself to pronounce the judgment or for any other substantial cause to permit additional evidence by the parties. In view of the above provisions it becomes essential for the Court to examine the available material on record to formulate an opinion regarding the necessity or otherwise of the additional evidence. It is under these circumstances that the parties were heard on merit of the case to enable the Court to arrive at a conclusion whether the lis could be decided without having resort to additional evidence or to permit additional evidence to be lead. 17. We have thoroughly and carefully perused the judgment impugned and the evidence on record. We have noticed the issues framed by the Court. Issue Nos. 1 to 4 have been decided against the plaintiffs, appellants before us. We have noticed that while framing the issues, the trial Court has not placed onus of proof upon any of the parties as required under law. Section 101 of the Indian Evidence Act, deals with the burden of proof and reads as under : 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 18. In view of the above provisions, it was the bounden duty of the trial Court to have fixed the onus or burden of proof while framing the issues upon the parties, who had alleged facts, the basis of formulating the issues. 18. In view of the above provisions, it was the bounden duty of the trial Court to have fixed the onus or burden of proof while framing the issues upon the parties, who had alleged facts, the basis of formulating the issues. The trial Court has failed in its duty to fix onus leaving the parties to lead their evidence in a half hazarded manner. As regards the issue No. 1 is concerned, apparently it appears that the burden of proof lies on the plaintiffs/appellants to establish the oral gift in favour of Rinzing Tongden Lepcha by his late father Athup Tshering Lepcha. From the entire evidence lead by the plaintiffs-appellants, we find that except for the statement of the plaintiffs no evidence was led to establish as to when Athup Tshering Lepcha made the alleged oral gift. The plaintiffs have also failed to establish that oral gift was permissible either on account of custom in the Community, Area or State. It is the settled law that if a party claims a right through the custom, the existence of the custom from the time immemorial in the Community or Area to which they belong must be established. The allegation contained in Paragraph 3 of the plaint regarding the existence of customary usage in the State of Sikkim has not been proved by any documentary or oral evidence. The trial Court has rightly decided the issue No. 1 against the plaintiffs, appellant herein. Issue No. 4 i.e. the question on limitation is dependant upon the outcome of issue No. 2. The trial Court decided both the issues in favour of the defendant holding the validity of the Partition Deed dated 10-06-1971, as also further Partition dated 09-11-1991 whereas the plaintiffs claim that the suit property is the exclusive property of their predeessor in interest Rinzing Tongden Lepcha on the basis of an alleged oral gift has been held as not proved. The defendants case is that the property became joint property of late Nochi Tongden Lepcha, his father and late Rinzing Tongden Lepcha pursuant to the Partition Deed dated 29-01-1955. Thus it is admitted case of the defendant that till the partition in the year 1971 the predecessors in interest of the parties were co-sharers. The defendant claims exclusive right of legal heirs of late Nochi Tongden Lepcha on the strength of Partition Deed dated 10-06-1971 (Exhibit B-1). Thus it is admitted case of the defendant that till the partition in the year 1971 the predecessors in interest of the parties were co-sharers. The defendant claims exclusive right of legal heirs of late Nochi Tongden Lepcha on the strength of Partition Deed dated 10-06-1971 (Exhibit B-1). If this Partition Deed is held to be valid, the plaintiffs are excluded from claiming any right in the suit property. The document said to be the partition deed allegedly executed between Nochi Tongden Lepcha, father of the defendant and Rinzing Tongden Lepcha, predecessor in interest of the plaintiffs is a written document. The defendant has alleged the document to be in the handwriting of Rinzing Tongden Lepcha, who was an educated person. The plaintiffs denied the execution of the document by late Rinzing Tongden Lepcha. In order to prove the Partition Deed dated 10-06-1971 (Exhibit B-1) the defendant has appeared as his own witness, proving the signature of his late father Nochi Tongden Lepcha as also the text of the document to be in the handwriting of late Rinzing Tongden Lepcha. He has also identified signatures of executants on the document. In addition he has produced DW-2 Rosabel Namchyo, who claims to be a social worker having worked with late Rinzing Tongden Lepcha. She has further stated that she even worked as Private Secretary to late Rinzing Tongden Lepcha, who was the Power Minister from 10-07-1978 to 01-12-1978; she also worked as Senior Administrative Officer in the Department of Power from 02-12-1978 to 31-08-1982. She has identified the handwriting and signature of late Rinzing Tongden Lepcha on the document Exhibit B-1, as also Exhibit D-1, being familiar with the signature and handwriting. No other evidence has been led by the parties in respect to this Partition Deed. The plaintiffs denied the handwriting and signature of late Rinzing Tongden Lepcha, meaning thereby they dispute the existence and execution of the document by late Rinzing Tongden Lepcha. However, none of the parties prayed for expert opinion in respect to these documents. It is under these circumstances that the plaintiffs filed Civil Misc. Application No. 113 of 2011 for examination of the documents by handwriting expert. However, none of the parties prayed for expert opinion in respect to these documents. It is under these circumstances that the plaintiffs filed Civil Misc. Application No. 113 of 2011 for examination of the documents by handwriting expert. The plaintiffs also heavily relied upon the Parcha Khatian bearing Khatian No. 18 and Khasra No. 80 filed along with their application dated 19-06-2008, which contains entries in favour of late Rinzing Tongden Lepcha, however, the trial Court disallowed the prayer for production of this document under the misconception that the document is already on record as Exhibit-3. From the record it appears that Exhibit-3 is a document pertaining to the survey operations of 1950-51 whereas the Parcha Khatian sought to be produced and proved by the plaintiffs related to a different period. The trial Court did not consider this aspect while disallowing the prayer of the plaintiffs. The plaintiffs also relied upon a Certificate dated 31-01-2003, Exhibit-1, issued by the Revenue Officer, Mangan, North Sikkim, which reads as under : OFFICE OF THE DISTRICT COLLECTOR COLLECTORATE, MANGAN NORTH SIKKIM Pin. 737116 No. 22/D.C.(N) Date 31-01-2003 TO WHOM IT MAY CONCERN This is to certify that Shri Rinzing Tongden Lepcha S/o Shri Athup Tshering Lepcha resident of Dikchu, possessed land record vide Khatiyan No. 18 and Khasra No. 80 measuring total area 5.2300 hectares, under Block Upper Mangshilla, North Sikkim as per 1977-78 survey record. Sd/- Revenue Officer Mangan North Sikkim. 19. As a matter of fact this Certificate carries no value in law. At the first place the Certificate has no reference to any revenue record. That means that the basis for the Certificate is not disclosed. If it is based on revenue record, which constitutes the primary evidence, it could not be considered as a valid piece of evidence, when primary evidence is available. Secondly, the Certificate has not been proved by any legal evidence. The Parcha Khatian sought to be produced by the plaintiffs was disallowed by the trial Court for no valid reason and in total misconception that the said document is already on record. The plaintiffs have denied the handwriting and signature of late Rinzing Tongden Lepcha on the Partition Deed dated 10-06-1971 (Exhibit B-1). However, none of the parties produced any handwriting expert to prove/disprove the document. The defendant has produced DW-2 (Rosabel Namchyo) who proved the handwriting and signature of late Rinzing Tongden Lepcha. The plaintiffs have denied the handwriting and signature of late Rinzing Tongden Lepcha on the Partition Deed dated 10-06-1971 (Exhibit B-1). However, none of the parties produced any handwriting expert to prove/disprove the document. The defendant has produced DW-2 (Rosabel Namchyo) who proved the handwriting and signature of late Rinzing Tongden Lepcha. Respondent (defendant) in the suit has also relied upon the document Exhibit D-1, an application dated 10-06-1971 for mutation in favour of the defendants father on the basis of Partition dated 10-06-1971 and no objection by Rinzing Tongden Lepcha on the document Exhibit D-1 and the permission granted by the authority whereupon corrected copy of the Khatian Parcha Exhibit G-1 was issued. However, these documents are not certified copies of the revenue record and have not been proved in accordance with the Law of Evidence. The defendant has produced DW-3, Lek Nath Limboo, Kutiadhar to prove that cardamom field was being cultivated by him on adhya basis on behalf of the defendants father and later on his behalf. The plaintiffs have also admitted that DW-3 was the Kutiadhar. 20. The plaintiffs have also produced the revenue receipts showing payment of revenue by them in the name of Rinzing Tongden Lepcha. However, the revenue receipts have not been proved in accordance with Law of Evidence. It is under these circumstances that the claims of the parties for leading additional evidence need to be examined. The plaintiffs want to lead additional evidence to disprove the handwriting and signature on the Partition Deed dated 10-06-1971 (Exhibit B-1) for which no evidence was led by them during the trial, whereas the respondent in addition to the Partition Deed (Exhibit B-1) relied upon by him and allegedly proved during the trial, further wants to lead additional evidence in support of the partition i.e., the Succession Certificate issued by the learned District Judge, East and North at Gangtok on the no objection of late Rinzing Tongden Lepcha, predecessor in interest of the plaintiffs, wherein he admitted the Partition Deed dated 10-06-1971. This is an important and relevant piece of evidence, being part of the judicial proceedings. The respondent also wants to produce some letters allegedly in the handwriting of the late Rinzing Tongden Lepcha to prove his handwriting and signature on the Partition Deed dated 10-06-1971. 21. This is an important and relevant piece of evidence, being part of the judicial proceedings. The respondent also wants to produce some letters allegedly in the handwriting of the late Rinzing Tongden Lepcha to prove his handwriting and signature on the Partition Deed dated 10-06-1971. 21. Power to Appellate Court to permit additional evidence came to be examined by the Apex Court in (1997) 7 SCC 297 : AIR 1997 SC 3243 , Jaipur Development Authority v. Kailashwati Devi. In this case, Honble Supreme Court while interpreting the scope of Clause (aa) of Rule 27(1) Order XLI, CPC held that the condition is not applicable only where the party produced some evidence in the trial Court, but is equally applicable where the party has led no evidence. The relevant observations are contained in Paragraph 6, which reads as under : 6. The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial Court, should be enabled to produce the same in the appellate Court. The sub-rule mentions the conditions which must be complied with by the party producing the additional evidence, namely, that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him in the trial Court. It is not one of the conditions that the party seeking to introduce additional evidence must have also been one who has led some evidence in the trial Court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial Court. All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. It is not permissible to restrict Clause (aa) for the benefit of only those who have adduced some evidence in the trial Court. 22. In (2001) 1 SCC 309 : AIR 2001 SC 134 , Mahavir Singh and others v. Naresh Chandra and another, the Honble Supreme Court again considered the scope of Order XLI Rule 27, CPC and observed as follows: 5. 22. In (2001) 1 SCC 309 : AIR 2001 SC 134 , Mahavir Singh and others v. Naresh Chandra and another, the Honble Supreme Court again considered the scope of Order XLI Rule 27, CPC and observed as follows: 5. Before we proceed further we would like to refer to the scope of an application under Order 41 Rule 27, CPC. Section 107, CPC enables an appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 Rule 27, CPC. The principle to be observed ordinarily is that the appellate Court should not travel outside the record of the lower Court and cannot take evidence on appeal. However, Section 107(d), CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly............................... In the third circumstance, the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. The expression to enable it to pronounce judgment has been the subject of several decisions including Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601 : AIR 1979 SC 553 wherein it was held that when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the Court delivering it. It is only a lacuna in the evidence that will empower the Court to admit additional evidence (See : Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 : (1965) 1 SCR 542 . But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. It is only a lacuna in the evidence that will empower the Court to admit additional evidence (See : Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 : (1965) 1 SCR 542 . But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words or for any other substantial cause must be read with the word requires, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. G. I. P. Rly., [ILR (1907-08) 31 Bom 381 : 9 Bom LR 671 : 34 IA 115, (followed in AIR 1931 PC 143)]. It is under these circumstances such a power could be exercised................... 23. The dictum of the above judgments unambiguously described the scope of the Order XLI Rule 27 read with Section 107, CPC. It is envisaged under these provisions that either the circumstance contemplated under clauses (a) and (aa) of Rule 27(1) must exist for additional evidence at the instance of the parties or under clause (b) the Court itself requires the evidence to enable it to effectively adjudicate upon the controversy or for any substantial cause. The desire of the parties become irrelevant if none of the conditions under clauses (a) and (aa) above exist. In the present case the plaintiffs had approached the trial Court for production of Khatian Parcha pertaining to Khatian No. 18 and Khasra No. 80, which has been disallowed by the trial Court for no valid reasons. This condition contemplated by clause (a) of Rule 27 (1) Order XLI, CPC is satisfied to permit additional evidence to this aspect. As regards the other application, CMA No. 113 of 2011 for expert opinion in regard to Partition Deed dated 10-6-1971 is concerned, admittedly the plaintiffs led no evidence though denied the handwriting and signature of late Rinzing Tongden Lepcha thereon. To the contrary the defendant (respondent) has relied upon this document which has been found to be believed by the trial Court while passing the impugned judgment. Definitely there is evidence in support of the documents which has been proved by DW-2 Rosabel Namchyo, who has identified the handwriting and signature of late Rinzing Tongden Lepcha. To the contrary the defendant (respondent) has relied upon this document which has been found to be believed by the trial Court while passing the impugned judgment. Definitely there is evidence in support of the documents which has been proved by DW-2 Rosabel Namchyo, who has identified the handwriting and signature of late Rinzing Tongden Lepcha. But admittedly this witness is not a witness to the execution of the document. The document has also been proved by the defendant without saying that he was present at the time of its execution. Thus, there is lacuna in the evidence. Respondent (defendant) has now sought production of record from the learned District Judge, East and North regarding grant of Succession Certificate in favour of the legal heirs of the late Nochi Tongden Lepcha, father of respondent, wherein late Rinzing Tongden Lepcha is said to have admitted the Partition Deed dated 10-6-1971 by filing a joint compromise petition. The respondent has also not proved the documents i.e. Exhibits D-1, G-1 and F-1 in accordance with Law of Evidence. Simple production of documents is not sufficient to make the same as admissible legal evidence. These documents also go to the root of the controversy. 24. Considering the facts and circumstances of the case referred to hereinabove, we are of the considered opinion that additional evidence is required in the present case to enable this Court to effectively, judicially formulate its opinion on the controversy in the suit between the parties. The lacuna in the evidence has deprived this Court to arrive at a judicial and determinative opinion, thus the requirement to lead additional evidence. The parties have already consented and acknowledged each others right to lead additional evidence, it may be a matter of convenience for them but final and ultimate opinion is of this Court and we do feel that it is a fit case where additional evidence is required and be permitted to be produced. 25. We accordingly set aside the impugned judgment dated 28-2-1011 and remand the case to the trial Court with liberty to the parties to lead additional evidence. We exercise this jurisdiction under Rules 23, 23-A of Order XLI read with Section 107, CPC with following directions : (i) The trial Court is directed to re-admit the suit under its original number in the register of civil suits. We exercise this jurisdiction under Rules 23, 23-A of Order XLI read with Section 107, CPC with following directions : (i) The trial Court is directed to re-admit the suit under its original number in the register of civil suits. (ii) The evidence recorded during the original trial shall, subject to all just exceptions, be evidence during the trial. (iii) The parties shall be allowed to lead additional evidence in support of their respective claims/issues. (iv) The parties will appear before the trial Court on 18-6-2012. 26. In the facts and circumstances no order as to costs. 27. A copy of the judgment be sent to the trial Court. Order accordingly.