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2019 DIGILAW 1941 (KAR)

Chandrappa v. Munishamappa

2019-09-03

B.M.SHYAM PRASAD

body2019
JUDGMENT : B. M. Shyam Prasad, J. This appeal is by the defendants in O.S.No.1842/2005 on the file of the I Additional Senior Civil Judge, Bengaluru. The respondents have filed the suit for ejectment of defendant Nos.1 to 3 from three shop premises each constructed in an area measuring East to West 10 feet and North to South 15 feet in Sy.No.94 of Upparahalli village, Kasaba Hobli, Hoskote Taluk and for a consequential relief of direction to the appellants to hand over the possession. The trial Court has dismissed the suit by its judgment dated 27.06.2011. However, the appeal filed by the respondents in R.A.No.285/2011 on the file of the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru is allowed by the judgment dated 01.09.2018 decreeing the respondents' suit and directing the appellants to hand over the vacant possession of the three premises referred to above. 2. Smt. Hanumakka, under whom the respondents claim title to the subject properties was granted an extent of six guntas in Sy.No.94 of Upparahalli village, Kasaba Hobli, Hoskote Taluk. The respondents contend that the appellants trespassed into a portion of this land along its southern boundary and constructed the premises in this property in Sy.No.94. On the other hand, the appellants contend that they were each allotted an extent measuring 10x15 feet in Sy.No.4 of Upparahalli village, Kasaba Hobli, Hoskote Taluk under the beneficiary scheme. They constructed shop premise in their respective portions way back in the year 1996-1997. The trial Court, on appreciation of the evidence on record, concluded that the respondents were not able to establish that the boundaries of the six guntas of land in Sy.No.94 were fixed after the due process pursuant to the grant in her favour, and without such exercise being undertaken, the respondents could not claim title thereto or seek ejectment of the appellants. 3. In the first appeal, the respondents have filed three applications under Order XLI Rule 27 of CPC, and another application under Order XXVI Rule 10(A) of CPC. The applications under Order XLI Rule 27 of CPC are filed to produce a purported list of beneficiaries who have been granted lands in the year 1996-1997, an Endorsement issued by the Municipal Council Office affirming that the appellants' name do not figure in such beneficiary list and the survey records to establish that Sy.No.94 was reassigned with Sy.No.4. The applications under Order XLI Rule 27 of CPC are filed to produce a purported list of beneficiaries who have been granted lands in the year 1996-1997, an Endorsement issued by the Municipal Council Office affirming that the appellants' name do not figure in such beneficiary list and the survey records to establish that Sy.No.94 was reassigned with Sy.No.4. The appellants filed objections to some of these applications only. The appellate Court has allowed these applications, and took up the appeal for consideration on main without giving opportunity to the appellants to cross examine the respondents on the genuineness and relevance of these documents, or to lead rebuttal evidence. The appellate Court has concluded that the respondents have sought for leave to produce public records and as such, the additional documents could be received in evidence without further process which would be necessary after the applications under Order XLI Rule 27 of CPC are allowed. The application filed under Order XXVI Rule 10(A) of CPC is rejected, and there is no grievance about the rejection of such application. 4. The appellate Court, on the appreciation of the material on record, including the documents received as additional evidence under Order XLI Rule 27 of CPC, has decreed the respondents' suit setting aside the trial Court's judgment. 5. The learned counsel for the appellant submitted that the appellate Court, upon allowing the applications under Order XLI Rule 27 of CPC, in the absence of any consensus to mark the documents produced as additional evidence, should have had recourse to options under Order XLI Rule 28 of CPC or Order XLI Rule 29 of CPC. The appellate Court's failure to have recourse to the options available under these provisions, has resulted in miscarriage of justice inasmuch as the appellants have been denied opportunity to test the veracity as well as the relevance of these documents in cross examination of the respondents' witness who should have spoken about these documents. The appellants are also denied opportunity to lead rebuttal evidence. 6. The learned counsel for the respondents/plaintiffs could not join debate with the learned counsel for the appellant on the method adopted by the appellate Court to deal with the proceedings after the applications under Order XLI Rule 27 of CPC were considered favourably. The appellants are also denied opportunity to lead rebuttal evidence. 6. The learned counsel for the respondents/plaintiffs could not join debate with the learned counsel for the appellant on the method adopted by the appellate Court to deal with the proceedings after the applications under Order XLI Rule 27 of CPC were considered favourably. Infact, the learned counsel for the respondents submitted that the impugned order could be set aside and the matter may be remanded back either to the trial Court or first appellate Court for decision on merits in the light of the additional evidence. 7. In the light of these submissions, the following substantial question of law arises for consideration: "Whether the appellate Court, upon allowing the applications under Order XLI Rule 27 of CPC permitting the respondents to produce additional evidence, could have proceeded to dispose of the appeal on the strength of such documents without having recourse to the options available under Order XLI Rules 28 and 29 of CPC." 8. This Court, because of the nature of the controversy in this appeal, and the substantial question formulated for consideration, is of the considered view that the appeal should be disposed of at the earliest, and with the concurrence of the learned counsel for the appellants and respondents, the appeal is taken up for final disposal. 9. It is trite that the appellate Court can permit, subject to provisions of Order XLI Rule 27 of CPC and the following Rules, a party to the appeal proceedings to file additional documents. However, once a party is permitted to produce additional documents, as contemplated under Order XLI Rules 28 and 29 of CPC, the appellate court can itself record evidence or formulate points for consideration and call upon the trial Court to record evidence of the parties on such points and file a report. After either of this processes, the appellate Court can proceed to dispose of the appeal on merits. In appropriate cases, the appellate Court, on allowing an application under Order XLI Rule 27 of CPC, could also have recourse to Order XLI Rule 23A of CPC and remand the entire matter for fresh consideration by the trial Court. The salutary objective of this scheme is to ensure that the contesting parties have an opportunity to test the reliability, veracity and the relevance of the documents produced as additional documents in an appeal proceedings. The salutary objective of this scheme is to ensure that the contesting parties have an opportunity to test the reliability, veracity and the relevance of the documents produced as additional documents in an appeal proceedings. Therefore, the appellate Court could not have assumed either the veracity or reliability or relevance of these documents on the premise that these were public documents. The endorsements and the survey records, could not have been considered as public documents at least for the purpose of adjudication of dispute in these proceedings, which essentially revolves around the question, whether the subject property is part of Sy.No.94 allotted to Smt. Hanumakka or Sy.No.4 as claimed by the respondents. 10. For the foregoing, this Court is of the considered view that the appellate Court could not have proceeded to dispose of the appeal on merits after the respondents were permitted to produce additional documents under Order 47 Rule 27 of CPC without having recourse to the options available under Order XLI Rules 28 and 29 of CPC. The substantial question formulated for consideration is answered accordingly. Further, it would be appropriate and reasonable for this Court to set aside the impugned judgment in R.A.No.285/2011 dated 01.09.2018 and remand the matter back to the appellate Court to proceed with the appeal in the light of the provisions of Order XLI Rules 28 and 29 of CPC. The appeal is partly allowed, and the impugned judgment and decree in R.A.No.285/2011 on the file of the VIII Additional District and Sessions Judge, Bengaluru Rural District is set-aside restoring the appeal to the file of appellate Court for disposal of the appeal in R.A.No.285/2011 in the light of the observations made herein. The parties shall appear before the first appellate Court without further notice of first hearing on 14.10.2019.