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2013 DIGILAW 401 (HP)

Viptu Ram v. Ganga Dass

2013-05-07

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree, dated 13.01.2012, passed by the learned Additional District Judge, Mandi, District Mandi, H.P. in Civil Appeal No. 135 of 1999. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for the sake of convenience) has filed a suit against Shri Tara Chand and Shri Ganga Ram. Shri Tara Chand died on 03.07.1996. His legal representatives were brought on record vide order dated, 05.11.1997. According to the plaintiff, Shri Tara Chand was owner in possession of land comprised in Khewat Khatauni No. 15/27, Khasra No. 1098/466, measuring 4-1-18 bighas, situated in Village Tatapani, Tehsil Karsog, District Mandi, H.P. On 24.12.1988, defendant Tara Chand (now deceased), received a sum of 9000/-. According to the plaintiff, he agreed to execute a registered sale deed after 14.07.1996 and delivered the possession of the land on 24.12.1988. He is in continuous possession of the same. According to him, Tara Chand cleverly made sale of the suit land vide registered document for a sum of Rs.1,000/- in favour of defendant No. 2, Ganga Ram. Plaintiff has filed a suit for prohibitory injunction against the defendants to retain his possession over the suit land unless he is ejected under due process of law. The cause of action has accrued to him on 03.05.1996. Smt. Sumanu Devi was brought on record as legal representative of defendant Tara Chand. 3. According to the written statement filed by defendant No. 1, her husband has sold the suit land to the plaintiff on 24.12.1988 for a sum of Rs.9000/-. Tara Chand has received the amount from the plaintiff and the agreement was entered into between the plaintiff and late husband of the defendant, Smt. Sumanu Devi. The possession of the suit land was also delivered to the plaintiff by the husband of the defendant on 24.12.1988. He was continuing in actual and physical possession of the same. Since there was a legal hurdle in execution and registration of the sale deed qua the suit land before 14.07.1996, therefore, the husband of the defendant has agreed to get the same executed and registered after the aforesaid date. 4. The defendant No. 2 also filed the written statement. He was continuing in actual and physical possession of the same. Since there was a legal hurdle in execution and registration of the sale deed qua the suit land before 14.07.1996, therefore, the husband of the defendant has agreed to get the same executed and registered after the aforesaid date. 4. The defendant No. 2 also filed the written statement. According to him, Tara Chand has no legal right to execute the agreement and the plaintiff was out of possession. According to him, Tara Chand has executed a sale deed for a consideration of Rs.1,000/- on 2 1.03.1996 in his favour. He was put in possession of the suit land. He was in continuous possession of the suit land after the execution of sale deed. 5. The plaintiffs filed separate replications to the written statements filed by the defendants. Learned Sub Judge 1st Class, Karsog, District Mandi, H.P. framed the issues on 0 1.12.1998. The suit was dismissed by the learned Sub Judge 1st Class, Karsog, District Mandi on 08.11.1999. The appellant preferred an appeal against the judgment, dated 08.11.1999 before the learned Additional District Judge, Mandi, District Mandi. The same was dismissed on 05.03.2002. Thereafter, the plaintiff filed a Regular Second Appeal bearing RSA No. 212 of 2001 in this Court. The judgment and decree was set aside by this Court and the matter was remanded to the lower Appellate Court with a direction to not only decide the application but also the appeal on or before 31st March, 2012. Thereafter, the appeal was dismissed by the learned Additional District Judge, Mandi, District Mandi, H.P. on 13.01.2012. Hence, this Regular Second Appeal. 6. Defendant, Smt. Sumanu Devi also died during the pendency of this Regular Second Appeal. An application bearing CMP No . 1144 of 2012 was filed by the plaintiff for deleting the name of Smt. Sumanu Devi, i.e., respondent No. 1. The same was allowed by this Court on 21.11.2012. The name of Smt. Sumnu Devi was ordered to be deleted from the array of respondents. 7. Mr. G.D. Verma, learned Senior Advocate, on the basis of substantial questions of law framed at pages No. 9 and 10 of the paper-book, has vehemently argued that both the Courts below have mis-read and mis-construed the oral as well as documentary evidence. The name of Smt. Sumnu Devi was ordered to be deleted from the array of respondents. 7. Mr. G.D. Verma, learned Senior Advocate, on the basis of substantial questions of law framed at pages No. 9 and 10 of the paper-book, has vehemently argued that both the Courts below have mis-read and mis-construed the oral as well as documentary evidence. According to him, there was no restriction to alienate the property as per Ex.-PW1/A. He also argued that his client has already paid the sale consideration of Rs.9000/- to late Shri Tara Chand on 24.12.1998. He then contended that his client was in continuous possession of the suit land. He further contended that bar was also applicable qua defendant No. 2, Shri Ganga Ram. He also contended that the application under Order 41 Rule 27 of the Code of Civil Procedure has been dismissed in cursory manner. He lastly contended that the application preferred under Order 6 Rule 17 of the Code of Civil Procedure ought to have been allowed by the learned 1st Appellate Court, in order to enable the plaintiff to amend the relief for specific performance of the agreement. 8. Mr. Bhupender Gupta, learned Senior Advocate has supported the judgments and decrees passed by both the Courts below. 9.I have heard the learned counsel for the parties and gone through the pleadings carefully. 10.The plaintiff has preferred an application under Order 6 Rule 17 of the Code of Civil Procedure before the learned Additional District Judge on 09.11.2011. The reply was filed to the same by Shri Ganga Ram. The plaintiff has sought amendment for incorporating the relief of specific performance of the contract. According to him, the amendment would not cause any prejudice to the other side. The application was contested on merit by defendant No. 2. According to him, the applicant was seeking change of whole cause of action by way of amendment, which was not permissible. The suit was filed on 08.05.1996, seeking the relief of permanent prohibitory injunction for restraining the respondents from interfering with the possession of the plaintiff. According to paragraph No. 3 of the plaint, the defendant No. 1, Tara Chand has sold the land in violation of the agreement. In the instant case, the relief was barred on the date of amendment. According to paragraph No. 3 of the plaint, the defendant No. 1, Tara Chand has sold the land in violation of the agreement. In the instant case, the relief was barred on the date of amendment. The suit for specific performance was to be filed within three years after the cause of action has arisen to the plaintiff. The amendment has been sought by the plaintiff after 15 years. 11. Their Lordships of the Hon’ble Supreme Court in K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, 1995 Supp. (3) Supreme Court Cases 17, have held that application under Order 6 Rule 17 made by the petitioners in 1994, i.e., 7 years after filing of the suit seeking to amend the plaint for grant of specific performance of the contract on ground that it was subsequently discovered that Charity Commissioner has granted permission for sale of the property and therefore they were entitled to decree of specific performance was barred by limitation. Their Lordships have further held that limitation period of three years under Article 54 of Limitation Act having elapsed, grant of the amendment would defeat the valuable right of limitation accruing to the respondents. Their Lordships have further held that the petitioners having admitted that the respondents had refused to abide by the terms of the contract, should have asked for the relief of specific performance in the original suit itself. Their Lordships have held as under: “2. Pursuant to the letter dated 29.4.1987 addressed by the plaintiff, the defendants in their reply dated 4.5.1987 rejected the offer of the petitioners. Therein the petitioners themselves have expressly set out that there is a concluded contract of sale between the petitioners and the respondents and that they are ready and willing to perform their part of the contract paying the balanced consideration in the terms and conditions of the said letters. In para 28 of the plaint, 29.4.1987 is one of the dates set out to give them cause of action. On 25.11.1994 application under Order 6 Rule 17 was filed in IA No. 745 of 1994 seeking to amend the plaint for the grant of the relief of specific performance. The averments made in support thereof is that they subsequently, discovered that the Charity Commissioner had granted permission for the sale of the trust property and, therefore, the petitioners are entitled to the decree of specific performance. The averments made in support thereof is that they subsequently, discovered that the Charity Commissioner had granted permission for the sale of the trust property and, therefore, the petitioners are entitled to the decree of specific performance. That application was dismissed by the trial Court on 20.1.1995 and by the High Court on 21.02.1995 in CRP No. 510 of 1995. Thus, this petition for leave. 3. Shri Santosh Hegde, learned counsel for the petitioners, has contended that the petitioners have come forward with any new plea. They have set out all the material allegations and their claims in the plaint. What they are seeking for is only a formal relief which, though not originally asked for, the omission does not preclude the petitioners to file the application under Order 6, Rule 17 seeking for the amendment of the plaint. The relief is really founded upon the facts set out in the plaint and it is the subsequent knowledge about permission granted by the Charity Commissioner for alienation, which required the amendment. We find that the contention is not tenable. 4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of he Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the respondent.” 12. Their Lordships of the Hon’ble Supreme Court in Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. and another (1996) 1 Supreme Court Cases 90 have held that application under Order 6 Rule 17 of the Code of Civil Procedure filed in Appellate Court seeking consequential relief by amendment of pleadings after the suit was barred by limitation during the pendency of the appeal is not permissible. Their Lordships have held as under: “4. Ltd. and another (1996) 1 Supreme Court Cases 90 have held that application under Order 6 Rule 17 of the Code of Civil Procedure filed in Appellate Court seeking consequential relief by amendment of pleadings after the suit was barred by limitation during the pendency of the appeal is not permissible. Their Lordships have held as under: “4. The question, therefore, is whether the appellant had properly framed the suit and whether the claim is barred by limitation. It is true, as rightly pointed out by Sri Rakesh Khanna. that Section 28 of the Contract Act prohibits prescription of shorter limitation than the one prescribed in the Limitation Act. An agreement which provides that a suit should be brought for the breach of any terms of the agreement within a time shorter than the period of limitation prescribed law void to that extent. The reason being that such an agreement is absolutely to restrict the parties from enforcing their rights after the expiration of the stipulated period, although it may be within the period of general limitation. But acceptance of that contention does not per force solve the controversy in this appeal. Section 34 of the Specific Relief Act provides that any person entitled to a legal character, or to any right as to any property may, institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make such declaration and the plaintiff need not ask for such relief. However, proviso to the said Section puts the controversy beyond pale of doubt that “no courts shall make any such declaration where the plaintiff, being able to ask for other relief than a mere declaration of title, omits to do so”. In other words, mere declaration without consequential relief does not provide the needed relief in the suit, it would be for the plaintiff to seek both the reliefs. The omission thereof mandates the Court to refuse to grant the declaratory relief. In this appeal, the appellant has merely asked for a declaration that he is entitled to the payment for the loss of the truck in terms of the contract but not consequential relief of payment of the quantified amount, as rightly pointed out by the courts below. The omission thereof mandates the Court to refuse to grant the declaratory relief. In this appeal, the appellant has merely asked for a declaration that he is entitled to the payment for the loss of the truck in terms of the contract but not consequential relief of payment of the quantified amount, as rightly pointed out by the courts below. The question, therefore, is whether the amendment under Order 6, Rule 17 C.P. C. could be ordered in this background. Section 3 of the Limitation Act speaks of bar of limitation providing that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, after the prescribed period shall be dismissed, although limitation has not been set up as the defence. In other words, unless there is a power for the court to condone the delay, as provided under Sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as the defence. Order 6 Rule 17 C.P. C. envisages amendment of the pleadings. The court may at any stage of the proceedings allow either parties to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. Therefore, granting of amendment on such terms is also a condition for the purpose of determining the real question in controversy between the parties. The amendment to grant consequential relief sought for in this case, is as envisaged in proviso to Section 34 of the Specific Relief Act. 1963. That relief was, however, available to him to be asked for, when the suit was filed. 5. Admittedly, by the date of the application for amendment filed, the relief stood barred by limitation. The question, therefore, is whether the Court would be justified in granting amendment of the pleadings in such manner so as to defeat valuable right of defence of bar of limitation given to the defendant. It is true that this Court in the case of Vineet Kumar v. Mangal Sain Wad hera reported in (1984) 3 SCC 352 at page 360 : ( AIR 1985 SC 817 at p. 820), in paragraph 16) held that normally amendment is not allowed, if it changes the cause of action. It is true that this Court in the case of Vineet Kumar v. Mangal Sain Wad hera reported in (1984) 3 SCC 352 at page 360 : ( AIR 1985 SC 817 at p. 820), in paragraph 16) held that normally amendment is not allowed, if it changes the cause of action. But it is well recognized that where the amendment does not constitute the addition of a new cause of action, or raise a new case, but amounts to not more than adding to the facts already on record, the amendment would be allowed even after the statutory period of limitation. In that case, the question of limitation was not really in issue. The question was whether the tent was liable to be ejected. The plea was that there was an exemption period of 10 years from the purview of the Rent Control Act, if pending proceedings 10 years’ period has elapsed. On that ground new right had arisen to the tenant to take advantage of the benefit of the provisions of the Rent Control Act. In these circumstances, this Court held that the bar of limitation does not really stand in the way of the tenant to grant relief. As stated earlier, the suit was not initially instituted as one for recovery of damages nor was it founded on the relief which might have been asked for but was not claimed. In Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975)3 SCR 958 : ( AIR 1975 SC 1409 ) this Court dealing with the basis of cause of action and character of the right has held that “it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date suitor institutes the legal proceedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal (Emphasis supplied), if cannot blink at it or be blind to events which stultify or render inept the decretal remedy. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal (Emphasis supplied), if cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision of fair- play is not violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances (Emphasis supplied). Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court.” In other words, this Court laid emphasis that with a view to mould the relief a new fact can always be taken into account not merely by the trial court but even by the appellate court. Where the appeal is delayed even by necessary implication, the relief of amendment in that event cannot be given. In other words, to render substantial justice without causing injustice to the other party or violating fair-play, Court would be entitled to grant proper relief even at the stage of appellate forum. It is seen that the ratio of Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 is also inapplicable to the facts of this case. That case relates to a suit instituted for specific performance but without abandoning the relief of specific performance alternate relief for damages was also sought for. This Court relying upon the proviso to sub-section(5) of Section 21 of the Specific Relief Act which expressly gives power to the Court to grant amendment of the pleadings at any stage of the proceeding, permitted amendment of the plaint seeking alternate relief. The ratio therein is clearly distinguishable and does not apply to the facts of this case. 6. On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. 6. On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by the limitation during the pendency of the proceeding in the appellate court or the second appellate court. Considered from this perspective, we are of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the courts below had not committed any error of law warranting interference.” 13. The order, dated 02.12.2011, passed by the learned Additional District Judge, Mandi while rejecting the application under Order 6 Rule 17 of the Code of Civil Procedure, cannot be faulted with. The application preferred under Order 6 Rule 17 of the Code of Civil Procedure was filed beyond the period of 15 years, as noticed above and in the meantime, the suit for specific performance has also become barred by limitation after the institution of the suit. 14. Now, the Court will advert to the manner in which the application preferred by the plaintiff under Order 41 Rule 27 of the Code of Civil Procedure has been dealt with by the learned 1st Appellate Court. The plaintiff wanted to place on record the sanctioned order and mutation order to rebut the evidence. He was not aware of these facts and the documents could not be produced as no opportunity was given to rebut the evidence. According to him, the documents were necessary to adjudicate upon the matter between the parties. The application was contested by the defendant. It was not in dispute that the land has been allotted in favour of Tara Chand under Nautor Scheme. The documents, which the plaintiff wanted to place on record, were within his knowledge. The plaintiff cannot be permitted to lead fresh evidence at the appellate stage. 15. 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. The plaintiff cannot be permitted to lead fresh evidence at the appellate stage. 15. 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 2 7(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 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 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. 13. 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. 13. In the suit the following issues were framed (1) Whether the plaintiff proves that the suit land is of their ownership? (2) Whether the plaintiff proves that the suit land admeasuring 53 vighas 17 vasas has been acquired during the time of erstwhile Baroda State and possession thereof was handed over to Fatesinh Regiment?(3) Whether the plaintiff proves that the plaintiff is having legal possession of the disputed land by way of ownership right thereof? (4) Whether the plaintiff proves that the order dated 29.11.1991 passed by the Gujarat Revenue Tribunal is illegal, without jurisdiction and, therefore, null and void? (5) Whether the defendant proves that out of 138 vighas and 19 vasas of land, the erstwhile Baroda State had acquired 85 vighas and 01 vasa of land and remaining 53 vighas and 18 vasas of land was in possession of the defendant as stated by the defendant in para 5-3 of his reply? (6) Whether the defendant proves that survey No. 371 consists of 25 vighas 12 vasas of land and survey No. 372 consists of 28 vighas and 6 vasas of land as stated in para 5(3) of the written reply of the defendant? (7) Whether the defendant proves that the suit of the plaintiff for decision on the ownership of the suit property in favour of the plaintiff, is barred by period of limitation? And further whether the same is without jurisdiction with respect to the order passed by the Revenue Tribunal?” 16. Similarly, in Karnataka Board of Work Vs. Govt. of India 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. 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. 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. The plaintiff has not led any tangible evidence to establish why he could not produce the document despite exercise of due diligence. 17.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. 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 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. 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. 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) J. 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 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). 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. 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 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 1976 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). 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. 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. 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 ).” 18. Mr. G.D. Verma, learned counsel for the appellant has placed strong reliance on Shyam Gopal Bindal and others Vs. Land Acquisition Officer and another (2010) 2 Supreme Court Cases 316. This judgment is distinguishable. In this case, the documents could not be produced earlier because the original plaintiff passed away during the pendency of the suit and the appellants-plaintiffs were not aware of the documents. In the instant case, the plaintiff was always aware that the land has been allotted to Tara Chand under the Nautor Scheme. 19. Paragraph No. (f) of Rule 12 of The H.P. Nautor Land Rules, 1968 was substituted vide H.P. Nautor Land (Amendment) Rules, 1969 and was published in H.P. Rajpatra 1969 (Extra) at page No. 740, which reads as under: “12(f). 19. Paragraph No. (f) of Rule 12 of The H.P. Nautor Land Rules, 1968 was substituted vide H.P. Nautor Land (Amendment) Rules, 1969 and was published in H.P. Rajpatra 1969 (Extra) at page No. 740, which reads as under: “12(f). If, the grantee of his legal representative successor alienates the land granted in nautor, within 15 years from the date of the patta, or if he alienates if, at time for a purpose other than the one for which the land was granted to him. In the event of other kind of alienation the power to the State Government to cancel the grant and to resume the land shall govern the alienee also. According to this, a grantee of his legal representative successor could not alienate the land granted in nautor within 15 years from the date of the patta. 20.In copy of jamabandi for the year 1989-90, Ex.-DA, it is specifically stated that the land could not be alienated for a period of 20 years. However, as per the Rules initially framed in 1968, the embargo was for a period of 15 years. Thus, this 20 years embargo in jamabandi for the year 1989-90, Ex.-DA, could not be incorporated. In the instant case, a sale deed has been executed in favour of defendant Ganga Ram on 21.03.1996 after the embargo of 15 years was over. 21. This Court in Purshotam Vs. State of H.P. 1990 (2) Shim. Law Cases 206 has held as under: “2. This notification will not apply to a concluded transaction. Bachan Singh had obtained allotment of land subject only to he condition that no alienation will be made for a period of 10 years from the date on which he took possession of the land. The alteration effected by the notification issued by the Governor can only apply to transactions subsequent to the date of the said notification. Section 3 of the Government Grants Act, 1895, enacts: “All provisions, restrictions, condition and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.” 3. Section 3 of the Government Grants Act, 1895, enacts: “All provisions, restrictions, condition and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.” 3. In Chairman Ramappa Gundappa Sahakari Samyakta Besva Sangh Ltd. and anther V. State of Mysore and others, AIR 1974 SC 856 , the Supreme Court stated at page 858: “ Certainly, if an indefeasible right in property has been vested in the petitioners, as the HighCourt thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision, by a subsequent resolution cannot be deprivatory of anyone’s rights “ 22.Now, as far as agreement entered into between the plaintiff and Tara Chand is concerned, the agreement Ex.- PW 1/A was executed on 24.12.1988, within a period of 15 years from the date of allotment, i.e., 14.07.1976. This agreement was against the spirit of Section 23 of the Indian Contract Act. Shri Tara Chand could not alienate the suit land before 15 years. 23.This Court in Chet Ram Vs. Sawanu Ram, AIR 1985 H.P. 97 has held as under: “13. Defendant 1 got the land subject to the conditions incorporated in the patta (Ex.D-1) and under the Nautor Rules. The Government while granting, the nautor to defendant 1 must have kept in view the fact that defendant 1 required the land for his subsistence and it could be granted in his favour under the Nautor Rules. Now, even if the agreement dt. 15-12-1954 (Ex. PW 4/A) is admitted to be proved, still such an agreement is ‘forbidden by law’ and is not enforceable under Section 23, Contract Act. By this agreement defendant 1 had agreed to divide the disputed land in 9 equal shares thus keeping only one share for himself. For the remaining 8/9th share he agreed to relinquish his rights and accept the other 8 persons as owners. By this agreement defendant 1 had agreed to divide the disputed land in 9 equal shares thus keeping only one share for himself. For the remaining 8/9th share he agreed to relinquish his rights and accept the other 8 persons as owners. Defendant 1 after having got the land as ‘nautor’ for himself for subsistence purposes was bound by the conditions of the patta (Ex. D-l) as well as the Nautor Rules. He had no authority or right to transfer his ownership rights to third person on payment of any amount. Further, the land was given to defendant 1 for cultivation purposes only. By the agreement (Ex. PW 4/A) defendant 1 agreed that the 8/9th portion of the land would remain in the ownership of the other persons as it was their grazing ground. 1 n other words, this land could not be utilized for cultivation purposes and was to remain a grazing ground, that is, uncultivated land. Such an agreement is clearly forbidden by law and will defeat the very object of the grant of land in favour of defendant 1. Hence the plaintiffs cannot seek the enforcement of this agreement (Ex.PW 4/A). The purpose of granting nautor to various persons under the Nautor Rules is a matter of policy of the Government. The Government wanted to help certain poor and landless persons by giving them land for their subsistence. 14. In AIR 1934 Mad 811 (Ganesh Naicken v. Arumugha Naicken) it was held that where a grant was in the nature of a gift by the Government with a specific provision that the property shall not be alienated without the consent of the Tehsildar, it was intended to be personal to the grantee. Any contract which has the effect of circumventing this policy of the Government would be opposed to public policy. 15. In the present case too, the Government granted nautor to defendant 1 with certain specific conditions. Under the conditions of the patta (Ex. EM) and the Nautor Rules, defendant 1 was supposed to break up the land and make it fit for cultivation so that he could utilise the same for his subsistence. 15. In the present case too, the Government granted nautor to defendant 1 with certain specific conditions. Under the conditions of the patta (Ex. EM) and the Nautor Rules, defendant 1 was supposed to break up the land and make it fit for cultivation so that he could utilise the same for his subsistence. Defendant 1 was under an obligation to allow the Government to resume this grant without any compensation even if he had made certain improvements on the same, if he failed to break up and terrace this land within two years from the date of the grant. Thus it was also a persona! grant to defendant 1. By transferring his rights of grant in favour of other 8 persons defendant 1 has in fact circumvented the policy of the Government and this action of defendant 1 is, therefore, against the public policy.” 24.The agreement entered into between the parties was not enforceable. Thus, no right has accrued in favour of the plaintiff on the basis of the said agreement. 25. Now, as far as the plea of the plaintiff that he was put in possession is concerned, both the Courts below have come to the right conclusion that the possession was never handed over to the plaintiff. There is no specific recital in the agreement that the possession was handed over by late Tara Chand to the plaintiff. 26. Plaintiff, while appearing as PW- 1, has admitted that he was put in possession after four days of the execution of the agreement. Witness Ruldu Ram has stated that Tara Chand has told that he had delivered the possession at the time of execution of agreement. PW-3, Karam Chand has stated that no money was paid in his presence and parties had not talked about the possession in his presence. He volunteered to say that defendant had told that he had left the land. PW-4, Charan Dass has deposed that Tara Chand had delivered the possession to Viptu in the month of December, 1988. PW-5, Nand Lal has testified that the possession was delivered in his presence about 12 years ago in presence of Charan Dass. However, it was never stated by the plaintiff that the possession was delivered to him in the presence of this witness. The plaintiff has not placed on record any revenue record to establish that he was put in possession. However, it was never stated by the plaintiff that the possession was delivered to him in the presence of this witness. The plaintiff has not placed on record any revenue record to establish that he was put in possession. While appearing as PW- 1, he has deposed that he has never inquired from the Patwari about his possession and the Patwari had never visited in his presence for the purpose of Girdwari. 27. According to DW- 1, Ganga Ram, he was put in possession by Shri Tara Chand. DW-2, Uma Chand has also supported the version of defendant No. 1. DW-3, Bhagat Ram has also deposed that he has signed Ex.-DB as a witness. DW-4, Ramesh Kumar has testified that he has seen the possession of Shri Ganga Ram on the suit land. DW-5, Karam Chand has deposed that he has seen the possession of defendant Ganga Ram on the suit land for the last three to four years. Accordingly, the plaintiff has failed to prove his possession over the suit land. 28. Mr. G.D. Verma, learned counsel for the appellant has vehemently argued that agreement, Ex. PW1/A was enforceable after removable of the disability. He also placed strong reliance upon Jote Singh Vs. Ram Dass Mahto and others 1997(1) S.L.J 621 1997(1) S.L.J. 621. This judgment is also distinguishable. In the instant case, defendant Tara Chand was granted Nautor land on 20.01.1976. There was embargo that he could not alienate the property within the period of 15 years. In these circumstances, it cannot be said that Tara Chand has subsequently acquired interest. He has become owner when the patta was granted in his favour and the possession was delivered. 29.Mr. G.D. Verma, learned counsel for the appellant has also heavily relied upon Gurdial Singh and others Vs. Sewa Singh and others, AIR 1973 Punjab & Haryana 254. This judgment is also distinguishable. In this case, a decree for specific performance was granted and the sale deed was executed in consequence of the decree. In these circumstances, the learned Single Judge has held that the sale would relate back to the date of agreement. 30. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. There is no substantial question of law involved in this Regular Second Appeal. In these circumstances, the learned Single Judge has held that the sale would relate back to the date of agreement. 30. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. There is no substantial question of law involved in this Regular Second Appeal. 31.Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.