Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 504 (RAJ)

Kastu Bai v. LRs of Shri Otarmal

2014-02-18

ARUN BHANSALI

body2014
JUDGMENT 1. - This appeal under Section 100 CPC is directed against judgment and decree dated 18.10.2011 passed by Additional District Judge, Sumerpur dismissing the appeal filed by the appellants-defendants and affirming the judgment and decree dated 04.09.1997 passed by Civil Judge (Junior Division), Sumerpur, whereby, the suit filed by the plaintiffs for possession of house and plot of land was decreed. 2. The facts in brief may be noticed thus : the respondents plaintiffs, legal representatives of Shri Otarmal, Pukhraj, Nainmal and Banshi Lal filed a suit on 06.11.1989, inter alia, with the averments that a plot of land purchased by them was situated at Rebariyon Ka Baas, which was purchased by them by sale deed dated 06.05.1969, which was registered on 09.05.1969 from Kesari Mal and Gajja Ram for a sum of Rs. 2,500/- and by another sale deed dated 06.05.1969 registered on 09.05.1969 executed by Babu Khan for a sum of Rs. 1,000/-; the Patta of the plot was issued by Gram Panchayat, Takhatgarh on 26.12.1964 and was registered on 04.09.1968 in favour of Kesari Mal and another Patta in favour of Babu Khan on 03.04.1962; a wall was constructed by contractor Kamrudeen for a sum of Rs. 2,751/- in September and November, 1969; as the plaintiffs are involved in business and trade at Bombay and reside with their family at Bombay the defendants taking advantage of their absence trespassed on the said plot and constructed a room and a shade and, despite being told, they did not vacate the same and, therefore, the plaintiffs were entitled to seek possession of the said plot of land; on coming to know of the said trespass, the plaintiffs lodged an FIR with the Police, where after the defendants filed suit for injunction 32/89. Ultimately, decree was prayed for seeking possession of the suit property. 3. A written statement was filed by the defendants and the averments made in the plaint were denied; it was claimed that the defendants were not aware of the suit plot having been purchased by the plaintiffs from Kesari Mal, Gajja Ram and Babu Khan and they were in possession of the suit property for over 70 years; the issuance of Patta by the Gram Panchayat, Takhatgarh was also questioned and it was claimed that the defendants were in possession of the suit property as owners and the suit was barred by limitation. 4. 4. The trial court framed eight issues. On behalf of the plaintiffs - nine witnesses were examined and several documents were got exhibited. On behalf of the defendants - five witnesses were examined and certain documents were exhibited. 5. After hearing the parties, the trial court came to the conclusion that from the evidence of the parties, the ownership of the plaintiffs on the suit property was proved from oral and documentary evidence; it is proved that after purchase of the land in question, both the pieces of land were in plaintiffs' possession; the defendants have illegally trespassed on the land in question and have constructed room; the plaintiffs were entitled for possession of the suit property; the defendants failed to prove that they were in possession for over 40 years and, therefore, the suit was within limitation; the court fees paid was sufficient; the defendants have failed to prove that they have become owners by adverse possession and ultimately passed the decree for possession on 04.09.1997 as noticed hereinbefore. 6. Feeling aggrieved, the appellants filed first appeal before Additional District Judge, Sumerpur on 29.09.1997; during pendency of the appeal on 06.08.2011 an application under Order 41, Rule 27 read with Section 151 CPC was filed by the appellants, inter alia, pointing out that alongwith the written statement a document alongwith list of document was filed, which was a judgment dated 15.09.1959 in Case No.19/59 passed by the then Panchayat Court, Bali, however, the same could not be marked exhibit during the evidence of the defendants, which is a important document for disposal of the appeal; it was submitted that the respondents have claimed to have purchased the plot from Kesari Mal and Babu Khan, against whom, defendants' father/husband Gajja's brother Amra had filed appeal before the Panchayat Court, Bali, under which, a judgment was passed against Kesari Mal; it was claimed that for disposal of the appeal, the said document was necessary to be taken on record by way of additional evidence. 7. The application was opposed by the plaintiffs-respondents by filing reply dated 20.08.2011, inter alia, stating that the application was legally not maintainable; it was stated that the application was highly belated and the provisions cannot be utilised for the purpose of filling up the lacuna in the evidence. 8. 7. The application was opposed by the plaintiffs-respondents by filing reply dated 20.08.2011, inter alia, stating that the application was legally not maintainable; it was stated that the application was highly belated and the provisions cannot be utilised for the purpose of filling up the lacuna in the evidence. 8. The first appellate court after hearing the parties by the impugned judgment and decree dated 18.10.2011 came to the conclusion that all the documents have been proved by producing evidence and the ownership has been established by the plaintiffs; the finding of the trial court regarding possession was proper; the defendants had trespassed on the land in question in the year 1983 and 1989; the suit was within limitation; the same was properly valued and the defendants were not owners by adverse possession. 9. While dealing with the application under Order 41, Rule 27 CPC, the first appellate court came to the conclusion that when the document was already on record, as to why the same was not proved before the trial court during evidence, no reasonable cause has been given and the application had been filed after 14 years of decision of the trial court and, even if, the document was taken on record, the same had no impact. Ultimately, the first appellate court while dismissing the application under Order 41, Rule 27 CPC and the appeal, upheld the judgment and decree passed by the trial court. 10. Learned counsel for the appellants vehemently submitted that the trial court was not justified in dismissing the application under Order 41, Rule 27 CPC. The document, which was sought to be produced as additional evidence, was already on record and the only prayer made to the appellate court was to exercise its power under Rule 27(1)(b) CPC and it was for the Court to utilise the said document, inasmuch as, the same went to the root of the case, if the appellate court had taken the said document into consideration, the same would have enabled it to pronounce a proper judgment and, therefore, the failure to exercise jurisdiction vested in the said Court has resulted in great prejudice to the appellants, inasmuch as, a important document has been left out of consideration without any reason. It was further submitted that the document was produced alongwith the written statement in the year 1990 and the same was very much available on the record of trial court, however, on account of the lawyer's mistake the same could not be marked as exhibit. It was further submitted that the powers under Rule 27(1)(b) CPC are wide and the appellate court should have exercised those powers in the facts and circumstance of the present case and, due to failure thereof, the judgment impugned is vitiated and the same deserves to be set aside. It was submitted that the document in question was dated 15.09.1959 between the seller Kesari Mal and Amra - brother of appellants' father/husband and, therefore, the same clearly revealed that Kesari Mal was not in possession of the suit property. Reliance was placed on the judgment of Delhi High Court in Akash Ganga Builders and Engineers Pvt. Ltd. v. G.P. Seth, HUF and Anr. : AIR 1999 DELHI 362 . 11. The learned counsel fairly conceded that entire case of the appellants hinges on the validity of order rejecting application under Order 41, Rule 27 CPC as otherwise both the courts have concurrently held against the appellants on all the issues. 12. Per contra, learned counsel for the respondents submitted that appellants have failed to make out any case whatsoever for invoking provisions of Order 41, Rule 27 CPC. Admittedly, the document was filed at the time of filing of the written statement way back in the year 1990, no attempt was made during pencency of the suit to mark the same as exhibit and after filing of the appeal in the year 1997 also the application was made in the year 2011 and no explanation worth the name has been forthcoming regarding the delay in either moving the application before the appellate court or for not marking the said document as exhibit before the trial court. It was further submitted that no case has been made out for invoking provisions of Order 41, Rule 27 (1)(b) CPC as the said provision cannot be utilised for filling up the lacuna and that also by invoking the powers conferred on the Court. It was further submitted that no case has been made out for invoking provisions of Order 41, Rule 27 (1)(b) CPC as the said provision cannot be utilised for filling up the lacuna and that also by invoking the powers conferred on the Court. It was further submitted that both the courts concurrently based on the oral and documentary evidence available on record have found against the appellants, who are mere trespassers and the facts of the case do not call for any interference by this Court. 13. Reliance was placed on judgments of Hon'ble Supreme Court in Smt. Asha Narang v. Dr. Ved Prakash Narang : 1998 AIR SCW 4119 , Mahavir Singh & Ors. v. Naresh Chandra & Anr. : 2000 AIR SCW 4000 , Haryana State Industrial Development Corporation v. M/s. Cork Manufacturing Co. : 2007 AIR SCW 6084 , Dr. C.P. Sreekumar M.S. (Ortho) v. S. Ramanujam : 2009 AIR SCW 3878 , State of Gujarat & Anr. v. Mahendrakumar Parshottambhai Desai : 2006 AIR SCW 2169 , Noor SK. Bhikan v. State of Maharashtra & Ors. : (2011) 7 SCC 589 , Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia & Ors. : AIR 1980 SC 446 and Roop Chand v. Gopi Chand Thelia : AIR 1989 SC 1416 . 14. I have considered the rival submissions. 15. The suit was filed by the plaintiffs with the specific averments that the land in question was purchased by them from Kesari Mal and Gajja Ram vide sale deed dated 09.05.1969 and from Babu Khan vide sale deed dated 09.05.1969 and that the defendants have trespassed on the land in question in 1983 and 1989. The written statement was filed by the defendants disputing the title of the plaintiffs and claiming that they were in possession of the suit property for over 70 years and had claimed title based on adverse possession. The appellants were well aware of their case/plea that they are in possession of the suit property for over 70 years and had filed certain documents alongwith list of documents dated 05.10.1990, which included the document sought to be relied on by the appellants and sought to be admitted by way of additional evidence by pressing their application under Order 41, Rule 27 CPC. 16. 16. It would be relevant to notice that the document and/or facts relating thereto did not find any mention in the written statement. The document was neither marked as exhibit nor any argument based on said document has been advanced before the trial court. Even in the first appeal filed way back in the year 1997 against the impugned judgment and decree dated 04.09.1997 no reference to the document dated 15.09.1959 was made nor any reliance thereof was placed. The appeal remained pending before the first appellate court for over 14 years and after passage of about 14 years from the date of the judgment passed by the trial court, the application under Order 41, Rule 27 CPC was filed. A look at the application reveals that only one line has been indicated in the application explaining the reason for moving the application which reads as under:- " ijUrq izfroknh ( vihykUV ) dh 'kgknr ds le; izn'kZ djokus ls jg x;k gSA tks bl vihy ds fuLrkj.k gsrq vko';d nLrkost gSA " 17. The application was replied and opposed by the plaintiffs respondents. 18. Provisions of Order 41, Rule 27 CPC reads thus:- "27. Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not , after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 19. (2) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 19. It would be noticed that the above provision can be invoked by the appellate court in case the trial court has refused to admit evidence, which ought to have been admitted, the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge etc. and if the appellate court requires such document to be produced or any witness to be examined to enable it to produce judgment, or for any other substantial cause. 20. So far as Clause (a) and (aa) of Sub-clause (1) is concerned, in the present case, the same are not applicable as the trial court has not refused to admit evidence and the document was already on record and, therefore, the prayer made is that the appellate court should have exercised jurisdiction under Sub-clause (b) so as to enable it to pronounce judgment and as there was substantial cause available. 21. The Hon'ble Supreme Court in the case of Mahavir Singh (supra) has elaborately dealt with the scope of Order 41, Rule 27 CPC and observed as under:- "5. Before we proceed further we would like to refer to the scope of an application under Order 41, Rule 27 , CPC. Section 107, CPC enables an appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41, Rule 27 , CPC. Principle to be observed ordinarily is that the appellate Court should not travel outside the record of the lower Court and cannot take evidence on appeal. However, Section 107(d), CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. The scope of Order 41, Rule 27 , CPC was examined by the Privy Council in Kesowji Issur v. G.I.P. Railway, (1970) ILR 31 Bom 381 in which it was laid down clearly that this rule alone can be looked to for taking additional evidence and that the Court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order 41, Rule 27 , CPC envisages certain circumstances when additional evidence can be adduced; (i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (iii) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. 22. In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific equipment from which examination is sought to be made itself was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment" has been subject of several decisions including Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553 , wherein it was held that when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The expression "to enable it to pronounce judgment" has been subject of several decisions including Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553 , wherein it was held that when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of Court delivering it. It is only a lacuna in the evidence that will empower the Court to admit additional evidence [See The Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 .] But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause" must be read with the word "requires" which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kesowji Issur v. G.I.P. Railway (supra). It is under these circumstances such a power could be exercised. Therefore, when the first appellate Court did not find the necessity to allow the application, we failed to understand as to how the High Court could, in exercise of its power under Section 115, CPC could have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate Court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate Court passed the order on the application filed under Order 41, Rule 27 , CPC, the whole appeal was before it and if the first appellate Court is satisfied that additional evidence was not required, we failed to understand as to how the High Court could interfere with such an order under Section 115, CPC. In this regard, we may notice the decision of this Court in Gurdev Singh v. Mehnga Ram (1997) 6 SCC 507 , in which the scope of exercise of power under Section 115, CPC on an order passed in an application filed under Order 41, Rule 27 , CPC was considered. In this regard, we may notice the decision of this Court in Gurdev Singh v. Mehnga Ram (1997) 6 SCC 507 , in which the scope of exercise of power under Section 115, CPC on an order passed in an application filed under Order 41, Rule 27 , CPC was considered. When this decision was cited before the High Court the same was brushed aside by standing that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order." 23. Dealing with the Sub-clause (b), the Hon'ble High Court observed that the ability to pronounce the judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of Court delivering it and it is only a lacuna in the evidence that will empower the Court to admit additional evidence, but a mere difficulty in coming to a decision is not sufficient for admission of evidence under the said rule. Further, the words or for any other substantial cause has been interpreted to mean and imply that the appellate court requires additional evidence and it is for the Court to decide whether it required the additional evidence for pronouncing the judgment. 24. The plea raised before the first appellate court as noticed above was that the same could not be marked as exhibit and it was submitted by learned counsel for the appellants before this Court that the appellants should not be deprived of the evidence on account of inadvertence on part of the counsel in not marking the said document as exhibit. 25. The said plea raised by learned counsel for the appellants cannot be termed as a 'substantial cause' under Order 41, Rule 27 (1)(b) CPC. The fact that the lawyer and/or party at the appropriate stage could not realise the importance of the said document and, therefore, could not produce it in evidence cannot be a ground for invoking the said clause and the reason cannot be termed as substantial cause. 26. Hon'ble Supreme Court in Sunder Lal & Son v. Bharat Handicrafts Private Ltd. : AIR 1968 SC 406 in this context, inter alia, observed as under:- "The document relied upon was admittedly in the possession of the appellants, but they did not rely upon it before the High Court. 26. Hon'ble Supreme Court in Sunder Lal & Son v. Bharat Handicrafts Private Ltd. : AIR 1968 SC 406 in this context, inter alia, observed as under:- "The document relied upon was admittedly in the possession of the appellants, but they did not rely upon it before the High Court. It was said at the Bar that the importance of the document was not realised by those in charge of the case. We do not think that the plea would bring the case within the expression "other substantial cause" in Order 41, Rule 27 of the Code of Civil Procedure. We therefore declined to allow this additional evidence to be brought on the record." 27. Further the Hon'ble Supreme Court in the case of State of Gujarat (supra) while dealing with a plea raised with regard to producing additional document observed that adducing additional evidence at the stage of appeal, which was intended only to fill up the lacuna in the case cannot be permitted. The Hon'ble Court observed as under:- "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." 28. The judgment in the case of Akash Ganga Builders and Engineers Pvt. Ltd. (supra) a Division Bench judgment of Delhi High Court relied on by learned counsel for the appellants is not of much help, though there is no dispute on the principles laid down therein, that to do substantial justice and to pronounce correct judgment a document can be called even if it has not been produced earlier, but in the facts of the present case, as noticed hereinbefore, the direction issued in the said judgment has no application. 29. 29. In view of the above, it is apparent that it is for the Court before whom the application under Order 41, Rule 27 CPC is filed to come to a conclusion as to whether it required the document for pronouncing judgment and/or whether there was any other substantial cause for the party preferring the application not to produce the said document at appropriate stage and the fact that at the appropriate stage the party/counsel did not realise the importance of the document, cannot be termed as a substantial cause and the provisions cannot be invoked for the purpose of filling up lacuna in the evidence. As already noticed more than once hereinbefore, the document in question was filed in the year 1990 almost alongwith the written statement, no plea was raised in the written statement and no plea was raised in the memo of appeal either, which was filed in the year 1997. The application for the first time was made in the year 2011 with the plea as noticed hereinbefore. The first appellate court did not find any requirement of the said document for it to pronounce the judgment and also found no substantial cause to permit the said document as additional evidence. No fault can be found in the order passed by the first appellate court rejecting the application under Order 41, Rule 27 CPC, in view of what has been discussed hereinbefore. 30. A bare look at the document would reveal that said document is simply a photo copy of a typed document, neither the same is a certified copy nor there is any endorsement of the Court, of which, it purports to be a decision i.e. from the Panchayat Court, Bali. The decision also is between Amra and one Raheem Baksh and Kesari Mal. No reference to any land has been indicated therein. Neither the appellants nor their father Gajja Ram are a party to the said judgment and from a reading of the said document it cannot even be deciphered as to whether it pertains to the land in question. The decision also is between Amra and one Raheem Baksh and Kesari Mal. No reference to any land has been indicated therein. Neither the appellants nor their father Gajja Ram are a party to the said judgment and from a reading of the said document it cannot even be deciphered as to whether it pertains to the land in question. The document on face of it being a photo copy of a typed copy even otherwise is wholly inadmissible and, therefore, besides the fact that no case was made out under Order 41, Rule 27 (1)(b) CPC for producing the same as additional evidence, the document had absolutely no relevance and the same was on its face inadmissible as well. The oral and documentary evidence available on record is sufficient for the courts below to come to a conclusion and pronounce judgment, which has rightly been done by both the courts below. 31. In view of the above discussion, the order passed by the first appellate court under Order 41, Rule 27 CPC is proper and justified; the concurrent findings on the facts of both the courts below cannot be said to be perverse and no substantial question of law arises in the present appeal. There is no substance in the second appeal and the same is, therefore, dismissed. No costs.Appeal dismissed. *******