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2013 DIGILAW 340 (HP)

Sushma Mehta v. Mehar Singh

2013-04-24

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 20.5.2000 rendered by the learned Additional District Judge, Shimla in Civil Appeal No.43-S/ 13 of 1996. 2.“Key facts” necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff Sushma Mehta and proforma respondent Sushila Kumari filed suit for possession of land bearing Khasra No. 172/1, measuring 5-6-0 bighas situated in Chak Sainji, Tehsil Rohru, District Shimla (hereinafter referred as the suit land) against Sh. Raghubir Singh, predecessor-in-interest of the defendants (hereinafter referred to as the ‘defendant’ for convenience sake). According to the facts, one Raj Kumar Rajinder Singh was owner of land bearing Khasra No. 172/1 measuring 55-14-0 bighas situated in Chak Sainji, Tehsil Jubbal, District Shimla. He sold this land to the plaintiff on 20.4.1965 by way of oral sale and also delivered the possession thereof. The mutation No. 5188 was also attested in favour of the plaintiff. The predecessor-in-interest of the defendants Raghubir Singh, however, encroached upon the portion thereof in the month of December, 1965. Sushila Kumari filed an application for demarcation of the suit land before the Tehsildar, Rohru. The demarcation was carried out by Girdawar Halqua on the spot. Defendant was found in possession of the land measuring 5-6-0 bighas. The tatima was prepared by the Girdawar Halqua. Plaintiff requested the predecessor-in-interest of the defendants to hand over the possession of the suit land, but of no avail. Legal notice was also served upon him. According to the plaintiff, predecessor-in-interest of the defendants has encroached upon the land without any right, title and interest and as such they are entitled to the decree of possession and also for recovery of ‘ 100/- by way of damages. 3.Suit was contested by the predecessor-in interest of the defendants. According to him, he has raised an apple orchard 3-4 years back. He has assailed the legality and validity of the mutation No.5 188 dated 20.4.1965 attested in the name of plaintiff. According to him, the same was in violation of section 68 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as the “Act” for brevity sake). The sale deed being unregistered is also stated to be null and void and not binding on him. In the alternative, he has also set up his adverse possession. The sale deed being unregistered is also stated to be null and void and not binding on him. In the alternative, he has also set up his adverse possession. It was also stated that on 26.1.1955, the suit land has vested in the State Government. Hence, on the day of sale, i.e. 20.4.1965, the mutation No. 5188 attested in favour of plaintiff was illegal and would not confer the right, title and interest on the plaintiffs qua the suit land. According to him, the transaction was also violative of section 27 of the Act and section 54 of the Transfer of Property Act. He was found to be in possession of the suit land as per demarcation report. Trial court framed the issues on 23.3.1967 and 25.11.1975. Trial court dismissed the suit on 2.4.1996. However, issues No. 2 and 7 were held in favour of defendant. One of the plaintiffs, Sushma Mehta filed an appeal against the judgment and decree dated 2.4.1996 passed by the learned Sub Judge, Court No.1, Rohru. Sushila Kumari, who was 2nd plaintiff, was arrayed as proforma respondent. Learned Additional District Judge partly allowed the appeal. The finding recorded by the trial court on issue No.2 that the defendant has acquired the title on the suit land by way of adverse possession was set aside. The impugned judgment and decree was modified to this extent. Hence, this Regular Second Appeal. It was admitted on the following substantial questions of law on 10.4.2002: 1. “Whether the courts below have wrongly applied the provisions of the Himachal Pradesh Abolition of Big Landed Estate Act and the Transfer of Property Act to the facts of the present case? 2. Whether the first appellate court has discarded and ignored the relevant and material evidence and has based his decision on immaterial and irrelevant evidence and has grossly misread the evidence and law as applicable to the facts of the case leading to palpably erroneous findings and if so to what effect? 4. Mr. Ajay Kumar, learned Senior Advocate has vehemently argued that the courts below have wrongly applied the provisions of the Himachal Pradesh Abolition of Big Landed Estate Act and the Transfer of Property Act. He has also argued that both the courts below have misread the oral as well documentary evidence placed on record by the parties. 5.Mr. 4. Mr. Ajay Kumar, learned Senior Advocate has vehemently argued that the courts below have wrongly applied the provisions of the Himachal Pradesh Abolition of Big Landed Estate Act and the Transfer of Property Act. He has also argued that both the courts below have misread the oral as well documentary evidence placed on record by the parties. 5.Mr. G.D. Verma, learned Senior Advocate has supported the judgments and decrees passed by both the courts below. 6.I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 7.Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 8.What emerges from the facts is that plaintiff No.2 Sushila Kumari has purchased the entire suit land bearing Khasra No.172/1 measuring 55-14-0 bighas on 20.4.1965 from the previous owner. She further sold the suit land in the year 1981, as per the statement of PW-2 Bhagwan Singh, husband of plaintiff Sushma Mehta. According to Sushila Kumari, she has acquired the title with respect to the suit land from previous owner Raj Kumar Rajinder Singh whereas plaintiff No.1 has further acquired the title of the suit land from her. According to Ex. D-2 dated 26.6.1973, neither the plaintiff was in possession of the suit land nor Raj Kumar Rajinder Singh was either owner or in possession of the lands situated in Tehsils Rohru and Rampur after 26.1.1955 since the same automatically vested in the State of Himachal Pradesh. The suit land was also subject matter of dispute in the suit decided by this Court vide Ex.D-2. 9. Section 27 (1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 reads as under: 27. (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds ‘ 125 per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances. 10.According to judgment Ex.D-2 Raj Kumar Rajinder Singh was paid compensation with respect to vestment of his surplus land in the State of Himachal Pradesh. 10.According to judgment Ex.D-2 Raj Kumar Rajinder Singh was paid compensation with respect to vestment of his surplus land in the State of Himachal Pradesh. Thus, the courts below have rightly come to the conclusion that the sale of land measuring 55-14-0 bighas to Sushila Kumari by previous owner was illegal, invalid and violative of the provisions of section 27 of the Act and section 54 of the Transfer of Property Act. Since the land could not be sold to Sushila Kumari, the same could not be further sold by her to Sushma Mehta. 11.PW-1 Sushila Kumari has testified in her cross-examination that she purchased the suit land in the year 1965 from Raj Kumar Rajinder Singh and before the purchase of the suit land; the possession was with Raj Kumar Rajinder Singh. 12.PW-2 Bhagwan Singh is the husband of the plaintiff Sushma Mehta. He has testified that the suit land alongwith other land was purchased by the plaintiff from Sushila Kumari in the year 1981 for consideration of ! 90,000/-. 13.PW-3 Daulat Ram has testified that he remained posted as Kanungo at Rohru during 1962-1968 and 1978 to 1983. He has given the demarcation of the suit land and has prepared tatima Ex.PE/1 and his report is Ex.PC/1. 14.The courts below have correctly appreciated the provisions of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 and Transfer of Property Act. The first appellate court has rightly reversed the findings of the trial court that the defendant has acquired the title by way of adverse possession. 15.According to DW- 1 Mehar Singh, the suit land was in their possession from the time of their ancestors and they have planted an apple orchard 30-3 5 years back. The previous owner was Raj Kumar Rajinder Singh. Defendants were in possession of the suit property as owners. He has not stated since when they were in possession of the suit land. Defendants have also taken contrary stand. According to him, their predecessor-in­interest was in possession of the suit land, being tenant. In case they were tenant, their possession was permissive and not adverse to the true owner. 16. DW-2 Totu Ram has testified that defendant was in possession of the suit land and according to him, trees were 25 years old. He has also not given the date since when defendants came in possession of the suit land. In case they were tenant, their possession was permissive and not adverse to the true owner. 16. DW-2 Totu Ram has testified that defendant was in possession of the suit land and according to him, trees were 25 years old. He has also not given the date since when defendants came in possession of the suit land. He used to collect the rent from the defendants on behalf of Raj Kumar Rajinder Singh. He has also stated at one time that he has not collected any rent of the suit land from Raghubir Singh, predecessor-in-interest of the defendants. However, he has volunteered that he used to collect the land revenue from Raghubir Singh and issue receipt to him. But he has expressed his ignorance as to how much land revenue he used to collect pertaining to the suit land. It is, thus, clear that defendants have claimed their possession as tenant. 17.DW-3 Anil Kumar is the son of Sushila Kumari. He also could not depose since when defendants were coming in possession of the suit land. 18.DW-4 has also deposed that the suit land was in possession of the defendants. However, the fact of the matter is that the State has become absolute owner of the suit land after 26.1.1955. There is no tangible evidence led by the defendants to establish that their possession has become hostile to the true owner, i.e. State of Himachal Pradesh. In these circumstances, defendants have failed to prove the necessary ingredients of adverse possession. They have not acquired any title by way of adverse possession. State Government, being the true owner, is required to take steps to evict them from the suit land. 19.Their Lordships of the Hon’ble Supreme Court in Durga Das versus Collector and others, (1996) 5 SCC 618 have held that mutation entries are for collection of the land revenue from the person in possession and the title to the property should be on the basis of the title they acquired to the land and not by mutation entries. Their Lordships have held as under: “2. This appeal by special leave arises from the judgment of the High Court of Himachal Pradesh, Shimla made in M.F.A. No. 24/84 on May 5, 1984. The only question is whether the appellant is a tenant in occupation of the land? Their Lordships have held as under: “2. This appeal by special leave arises from the judgment of the High Court of Himachal Pradesh, Shimla made in M.F.A. No. 24/84 on May 5, 1984. The only question is whether the appellant is a tenant in occupation of the land? He claimed that the was entitled to compensation in respect of subject matter of acquisition as tenant. The reference Court and the High Court recorded as a fact that the appellant is not a tenant and, therefore, is not entitled to the share in the compensation as a tenant. The undisputed facts are that 14 canals 18 of land belonged to the family consisting of Kishori Lal, Kewal Krishan and Koushalya, their sister. Kishori Lal and Koushalya sold their respective suitable shares. Kewal Krishan also sold his specified share to the appellant. It would appear that in the revenue records the name of the appellant has been entered as a qualifying tenant by reason of sale when the land to an extent of land admeasuring one canal, 5 marlas: 2 canals, 3 marlas belonged to Vijay Kumar were acquired by the Government. The appellant laid claim as a tenant in respect thereof. The courts below held that since he purchased a specified share from Kewal Krishan he cannot be considered to be as a tenant in respect of other lands, and, therefore, is not entitled to the compensation. We find that the view taken by the High Court is in conformity with law. Mutation entries do not confer any title to the property. It is only an entry for collection of the land revenue from the person in possession. The title to the property should be on the basis of the title they acquired to the land and not by mutation entries. Admittedly, the appellant has purchased some lands from Kewal Krishan one of the brothers of the family to the extent of his specified share. No lease deed was executed in respect of other lands. In these circumstances, the appellant cannot be treated to be a tenant of Vijay Kumar to claim compensation on the basis of his title as a tenant.” 20. Similarly, their Lordships of the Hon’ble Supreme Court in Balwant Singh and another versus Daulat Singh (Dead) by LRs. No lease deed was executed in respect of other lands. In these circumstances, the appellant cannot be treated to be a tenant of Vijay Kumar to claim compensation on the basis of his title as a tenant.” 20. Similarly, their Lordships of the Hon’ble Supreme Court in Balwant Singh and another versus Daulat Singh (Dead) by LRs. and others, (1997) 7 SCC 137 have held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title and such entries are relevant only for the purpose of collecting land revenue. Their Lordships have held as under: “21. We have considered the rival submissions and we are of the view that Mr. Sanyal is right in his contention that the Courts were not correct in assuming that as a result of mutation No. 1311 dated 19-7-54. Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Smt. Sawarni’s case, Pattanaik J., speaking for the Bench has clearly held as follows:- “Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.” 22. Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of mutation No. 1311 dated 19-7-54. The assumption on the part of the Courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so legally, she was in possession on the date of coming into force of the Hindu Succession Act and she as a full owner had every right to deal with the suit properties in any manner she desired. 23. It is relevant to point out that it is only the trial Court that has dealt with the matter elaborately on facts. The first appellate Court has dealt with the only point regarding validity and the genuineness of the adoption. 23. It is relevant to point out that it is only the trial Court that has dealt with the matter elaborately on facts. The first appellate Court has dealt with the only point regarding validity and the genuineness of the adoption. The High Court, as pointed out earlier, dealt with only with the question of possession. Therefore, we have to look into the trial Court judgment for findings on facts. The trial Court on the fact of possession observed as follows: “Durgi continued to live with Balwant Singh and Kartar Singh and the necessary conclusion that must be drawn is that hence- forward after she made the gift the property went to the minors Balwant Singh and Kartar Singh and if at all she continued living with the minors and managing the property, if at all, the same must be only on behalf of the minors and not in her own right.” 24. On the question of the consequences of mutation, the trial Court observed as follows:- “I hold that the transaction in question i.e. mutation no. 1311 of 19-7-54 was a gift and the effect of the judgments and decree in suit No. 194 of 1955 is that the alienation in favour of Balwant Singh and Kartar Singh continued to be valid till the death of Durga Devi and thereafter in view of the decree, cannot have any effect as against the reversionary rights.” 25. So far as re-mutation in favour of Durga Devi is concerned, the trial Court observed as follows:- “The land had been again mutated in the name of Durga Devi and there is no evidence that in fact Balwant Singh and Kartar Singh reconveyed the property or treated the gift as cancelled, thus the mere entry in the revenue records of the name of Durga Devi won’t make her full owner.” 26. At the risk of repetition, we point out that the first appellate Court and the High Court have not discussed the possession aspect in the light of the above extracted findings of the trial Court. 27. In the circumstances, we are of the opinion that the trial Court erred in assuming that by Mutation No. 1311, the widow divested herself of the title to the suit property by treating the mutation as gift and conveying title. Further it has not applied uniform test in appreciating the mutation entries. 27. In the circumstances, we are of the opinion that the trial Court erred in assuming that by Mutation No. 1311, the widow divested herself of the title to the suit property by treating the mutation as gift and conveying title. Further it has not applied uniform test in appreciating the mutation entries. In one place, the trial Court has accepted mutation entries in toto even for conveying title but in the other place, the trial Court was not prepared to accept the mutation entries by expressing some doubt about it. It is to be stated that this Court in Gurbaksh Singh v. Nikka Singh, (1963 Supp. (1) SCR 55 : ( AIR 1963 SC 1917 ), has held that entries in mutation must be taken as correct unless the contrary is established. Here the trial Court has shifted the burden on the appellants to prove the entries as correct. The trial Court has failed to apply the same yardstick that it had applied to Mutation No. 1311 to Mutation No. 1348. Assuming for the sake of arguments, that Mutation No. 1348 was on the basis of misunderstanding of the judgments in the earlier proceedings, that having been allowed to remain unaltered without challenge, cannot be brushed aside as worth nothing. Anybody affected by such entries should have challenged the same as provided under the law. In the absence of that, the entries cannot be ignored. Be that as it may, we have already noticed that mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. That being the position. Mutation No. 1311 cannot be construed as conveying title in favour of Balwant Singh and Kartar Singh or extinguishing the title of Durga Devi in the suit property. Consequently, the title to the suit property always vested with the widow notwithstanding the Mutation No. 1311. viewed in this manner, the decision in the earlier proceedings namely, decree in Suit No. 194/55 even assuming operates as res judicata, will not be of any avail to the contesting respondents, (plaintiffs) in the present suit because the reliefs sought in the prior proceeding was for a simple declaration that the mutation gift of 1954 would not affect the reversionary rights of reversioners. As noticed already, mutation entries will not convey or extinguish title in the property. As noticed already, mutation entries will not convey or extinguish title in the property. Therefore, under Mutation No. 1311 neither Balwant Singh and Kartar Singh acquired title nor Durga Devi’s title in the property got extinguished. The earlier Court proceedings did not and could not convey title in favour of reversioners, as the relief sought was for a simple declaration as mentioned above. If no title as such was passed on under the alleged mutation gift,’ the limited right of the widow in the property would get enlarged on the coming into force of the Hindu Succession Act, 1956. 28. The widow must be deemed to have continued in possession and she became absolute owner on the coming into force of the Hindu Succession Act, 1956. On that view, the alienations made by her and challenged in the present litigation, cannot be said to be without authority.” 21. Their Lordships of the Hon’ble Supreme Court in Mahila Bajrangi (dead) through LRs. and others versus Badribai w/o Jagannath and another, (2003) 2 SCC 464 have again reiterated that mutation proceedings before Revenue Authorities are not judicial proceedings in a court of law and questions of title to immovable property are not decided thereunder. Their Lordships have held as under: “6. Explanation (viii) to Section 11 CPC on which strong reliance has been placed, in addition to certain judgments brought to our notice can be of no assistance whatsoever to the appellants in this regard. The said Explanation stipulate that an issue ‘heard and finally’ decided though by a court of limited jurisdiction, which the said ‘Court’ is competent to decide such an issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit in which such issue has been subsequently raised. Merely because in exercising powers under Section 110 of the Code for mutation of acquisition of rights in the field books and other relevant land records, the Tehsildar was obligated to afford reasonable opportunity of being heard to the persons interested and hold further inquiry as may deem necessary into the claim, before making necessary entries or that some witnesses were examined by such authority, though not substantiated that he had any power to administer oath or compel and enforce attendance of witnesses, it cannot be elevated to the status of ‘court’ and its orders credited with the force and efficacy of a decision of a Court of justice in a judicial proceeding. Such entries made in land records even as per the Code, shall be presumed to be correct only until the contrary is proved. Section 111 of the Code provides that the Civil Court shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right, which is recorded in the record of rights. Consequently, it could not legitimately be claimed that the Tehsildar or authorities exercising powers of mutation (original, appellate or revisional) have been accorded the status of Civil Courts or Courts of exclusive jurisdiction and for that matter, to use such orders as basis or source for asserting a claim of res judicata before a competent Civil Court in a subsequent suit involving adjudication of title to the immovable property. That mutation proceedings before Revenue Authorities are not judicial proceedings in any Court of law and does not decide questions of title to immovable property is a trite position and principle of law vide - (Thakur) Nirman Singh & Ors. vs. Thakur Lal Rudra Partab Narain Singh & Ors. (AIR 1926 PC 100). The decision reported in Rajlakshmi Dasi & Others vs. Banamali Sen & Ors. vs. Thakur Lal Rudra Partab Narain Singh & Ors. (AIR 1926 PC 100). The decision reported in Rajlakshmi Dasi & Others vs. Banamali Sen & Ors. ( 1953 SCR 154 ) rendered in the context of dealing with the efficacy of a decision relating to apportionment of compensation under the Land Acquisition Act among claimants can be of no assistance to the case on hand, viewed in the light of the very observations contained in the said decision of this Court itself, that the claim to compensation made by the respective parties was founded on the assertion of their respective titles and that the Land Acquisition Court had thus jurisdiction to decide the question of title of the parties in the property acquired and that title could not be decided except by deciding the controversy between the parties about the ownership. Per contra, the Revenue Authority ordering mutation of revenue records cannot be Protanto held to be a Civil Court of concurrent and competent jurisdiction to adjudicate questions of title to immovable property. That apart, it is always the decision on an issue that has been directly and substantially in issue in the former suit between the same parties which has been heard and finally decided that is considered to operate as res judicata and not merely any finding on every incident or collateral question to arrive at such a decision that would constitute res judicata.” 22. The expression encumbrance has been explained by their Lordships of the Hon’ble Supreme Court in State of H.P. versus Tarsem Singh and others, (2001) 8 SCC 104 as under: “7. In the aforesaid two cases, Entry 21 of List II of Seventh Schedule of Government of India Act and Entry 18 of List II of the Seventh Schedule of Constitution of India were relied upon for the purpose of holding that there was a legislative competence while enacting the land acts. The question whether vesting of all interests and rights in the land free from all encumbrances would also include easementary right was not the subject matter of decisions and, therefore, said decisions have no application in the present case. The question whether vesting of all interests and rights in the land free from all encumbrances would also include easementary right was not the subject matter of decisions and, therefore, said decisions have no application in the present case. Section 3 of the Act provides that, notwithstanding any custom, usage, instrument agreement or decree of the Court all titles, interests and rights in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. Learned counsel when argued that easementary right being over the land has not vested in the State omitted to consider the significance of the expression ‘free from encumbrances.’ The word “encumbrance” means a burden or charge upon property or claim or lien upon an estate or on the land. “Encumber” means burden of legal liability on property, and, therefore, when there is encumbrance on a land, it constitutes a burden on the title which diminishes the value of the land. In Abdul Karim Kham v. Managing Committee, Gorge High School, AIR 1936 All 879, it was held that encumbrance would include easementary right of drainage over the land. In Rashid Allidina v. Jiwandas Khemji, AIR 1943 Cal 35, it was laid down that the word ‘encumbrance’ has always been understood to include easementary right. In Ganga Vishnu Swaika v. Machine Manufacturing Co.Ltd., AIR 1955 Cal 503 , it was ruled that an easementary right to discharge water on other’s land comes within the meaning of encumbrance on the right in the land. 9. In the present case, S.3 of the Act starts with an non obstante clause. Notwithstanding contained in any law, agreement, instrument, custom or usage or any decree of the Court, all rights, title and interests in the land shall stand extinguished and all such rights, title and interest shall vest in the State free from all encumbrances. If we accept the argument of learned counsel for the respondents that easementary right being over the land and the same has not vested in the State under S.3 of the Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. If we accept the argument of learned counsel for the respondents that easementary right being over the land and the same has not vested in the State under S.3 of the Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. Such a meaning cannot be given to the expression ‘free from encumbrances.’ When the legislature has used the expression ‘free from encumbrances,’ it means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances.” 23. The appellant has also moved CMP No.847/2011 under order 41 rule 27 of the Code of Civil Procedure whereby he wanted to place on record copy of jamabandi for the year 2005-2006. This application has been filed at a very belated stage. It is well settled law that lacuna cannot be permitted to be filled by way of application under order 41 rule 27 of the Code of Civil Procedure. 24.Their Lordships of the Hon’ble Supreme Court in State of Gujarat Vs. Mahinder Kumar AIR 2006 SC 1864 have held as under: “10. We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the 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. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for “substantial cause” since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence. 11. We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The High Court, therefore, dismissed the applications for adducing additional evidence. 11. We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit. 12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case. 25.Similarly, in Karnataka Board of Work Vs. Govt. of Indian 2004 (10) SCC 779 , their Lordships of the Hon’ble Supreme Court have held that a party is not entitled to produce additional evidence unless it is shown that evidence could not be produced before the learned trial Court despite exercise of due diligence. Their Lordships have explained the scope of additional evidence under Order 41 Rule 27 as under: “6. In the circumstances, the learned counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. In the circumstances, the learned counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. In this view of the matter, we do not think there is any justification for us to interfere with the orders of the High Court. However, in view of the arguments addressed by the learned counsel for the appellant, we have also gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect. 26. It is settled law by now that party guilty of remissness in not producing evidence in trial court, cannot be allowed to produce it in appellate court. There must be satisfactory reasons for non-production of the evidence in trial court seeking production thereof in appellate court. Their Lordships of the Hon’ble Supreme Court in a recent judgment in Union of India versus Ibrahim Uddin and another, (2012) 8 SCC 148 have held as under: “36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008 ; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798 ). 38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ]. 39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 ). 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment. 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule. 43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough comp1iance with the requirement as to recording of reasons. 44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice – delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794 ; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026 ; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285 ; and Sant Lal Gupta & Ors. v. Modern Cooperative Group Housing Society Limited & Ors., (2010) 13 SCC 336 ). 45. In The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 976 SC 2403, while dealing with the issue, a three judge Bench of his Court held as under: “We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence.” (Emphasis added). A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108 . 46. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held: “It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory.” (Emphasis added) In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. Even so, we are unable to persuade ourselves that this provision is mandatory.” (Emphasis added) In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact-situation, the order allowing such application did not vitiate for want of reasons. 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed. 48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. Stage of Consideration : 38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. However, the application should not be moved at a belated stage. Stage of Consideration : 38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193 ; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053 ).” 27. Accordingly, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. However, before parting with the judgment, the State Government is directed to take over the possession of the suit land from the defendants in accordance with law by instituting appropriate proceedings within a period of three months after the receipt of certified copy of this judgment. The copy of this judgment be sent to the Deputy Commissioner, Shimla for appropriate action. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.