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2020 DIGILAW 39 (GAU)

Md. Islam Ali v. Dipu Sarma

2020-01-09

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. S. Ali, learned counsel for the appellant and Mr. R. Sarma, learned counsel for the respondent Nos. 2(a) to 2(d). None appears for the respondent No. 1, and respondent Nos. 5 and 6 being the authorities under the GMC. The name of respondent No. 4 had been struck off by the order dated 20.11.2015. 2. The appellant instituted Title Suit 25/2007 in the Court of the learned Civil Judge, Senior Division, No. 2, Guwahati with the following prayers:- "(i) For a decree declaring the plaintiffs right, title and interest on the land mentioned in schedule 'A' including the 'B' schedule land. (ii) For a decree of khas possession of the land mentioned in schedule 'B' by demolition of the unauthorized construction of an Assam Type house of the defendant No. 1 and the cow sheds (khatal) in occupation of the defendant No. 2 and 3 standing over the said 'B' schedule land. (iii) For a decree of permanent injunction restraining the defendant No. 1 to 3 and their men and agents from disturbing the peaceful possession of the plaintiff over the schedule 'A' land. (iv) For a decree for the cost of this suit against the contesting defendants jointly and severally against them. (v) For reserving the rights of the plaintiff for all other appropriate reliefs to which the plaintiff is entitled under the law and equity. (vi) For decreeing any other relief/reliefs to which the plaintiff may be found entitled in the present circumstances of the case." 3. The plea of the appellant is that by 3(three) Sale Deeds bearing No. 9102/99, 9104/99 and 9137/99, at a total consideration of Rs. 2,10,000/-, 3(three) kathas of land of Dag No. 48 Patta No. 2 of village Noonmati, Mouza-Ulubari was purchased by him. The three kathas of land purchased comprised of the Schedule-A land. In paragraph-17 of the plaint, it has been pleaded that respondent No. 1 along with 5/6 other unknown persons and accompanied by the predecessor-in-interest of the respondent No. 2 as well as the respondent No. 3 pulled down two temporary cow sheds that existed in the schedule land and dispossessed the appellant and had been wrongfully possessing the land. The predecessor-in-interest of the respondent Nos. The predecessor-in-interest of the respondent Nos. 2(a) to 2(d) and 3 in their written statement in paragraph-8 took the stand that they had been in possession of the suit land since the year 1963 along with some other relatives and had sheds and houses constructed therein. 4. In course of the trial, the appellant exhibited the three Sale Deeds bearing No. 9102/99, 9103/99 and 9137/99 as Exhibits 1(1), 1(2) and 1(3) for the purpose of establishing their title over the land. The learned trial Court by the judgment dated 25.04.2011 in TS 25/2007 in respect of the issue No. 5 i.e. whether the appellant had purchased the suit land from the pattadar Santi Ram Das and have right, title over the suit land and issue No. 6 whether the plaintiff's name had been recorded in the record of rights in the present settlement operation and has been issued certificate to that effect, held in favour of the appellant and accordingly decreed the suit. In an appeal by the respondents being TA 14/2011, the learned appellate Court in its judgment dated 06.12.2013, while deciding the issue No. 5 had arrived at its conclusion that the 3K of land which were claimed to have been purchased by the appellant were not shown in the Exhibits-1(1), 1(2) and 1(3), being the respective Sale Deeds. A conclusion was arrived at that it is a settled law that in case any doubt arises as regards to the identity of the property, the boundaries are to be relied upon. It had further been concluded that on perusal of the three Sale Deeds, it appeared that the schedule of the land sold in each of the Sale Deeds is Katha and is within the same boundary. Based on the aforesaid conclusion, the judgment of the learned trial Court stood reversed and the suit was dismissed. Being aggrieved, the present Regular Second Appeal is preferred. 5. One of the substantial question of law involved in the appeal would be whether if the three independent Sale Deeds show the same boundary can it be made to be the basis for understanding that the same land was purchased thrice by the same parties by paying valuable consideration thrice. 6. 5. One of the substantial question of law involved in the appeal would be whether if the three independent Sale Deeds show the same boundary can it be made to be the basis for understanding that the same land was purchased thrice by the same parties by paying valuable consideration thrice. 6. Although it will be a little difficult to give an answer to such a question, but at the same time it cannot be said that such question would be an irrelevant question, which does not require any consideration. Without going into the merit of the question, we take note of that if the three different and independent Sale Deeds which were exhibited had shown the same boundary, it necessarily must have been a question for a determination by the appellate Court as to whether in fact the appellant purchaser had purchased the same land thrice or it was because of some inadvertent mistake, the same boundary was depicted in all the three independent Sale Deeds. In order to arrive at any such conclusion, we are of the view that some further additional evidence was required to have been called for by the appellate Court and arrive at its satisfaction as to whether the appellant purchaser had subjected to itself to an absurdity to purchase the same land thrice by paying the valuable consideration thrice or some inadvertent mistake had crept up while drafting the Sale Deeds. Order XLI Rule-27 of the CPC provides as follows:- "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." 7. The provisions of Order XLI Rule 27 of CPC is apparently clear that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court, but if 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 additional evidence can be taken. It being a jurisdiction vested in the appellate Court by the statute and in the present case there having arisen a requirement to exercise such jurisdiction by the appellate Court to call for a further evidence to satisfy itself whether the appellant purchaser had purchased the same land by paying the valuable consideration thereof thrice by means of three independent Sale Deeds or there was some inadvertent mistake that have crept in while drafting the Sale Deeds, we are of the view that the appellate Court have failed in its duty to exercise the appropriate jurisdiction under the law. 8. Accordingly, we interfere with the judgment of the appellate Court dated 06.12.2013 in TA 14/2011 and remand the matter back to the appellate Court for an appropriate exercise of the jurisdiction of taking additional evidence under Order-XLI Rule 27(b) of CPC and upon doing so, adjudicate the dispute involved in an appropriate manner. It is clarified that in the event any additional evidence is brought in by either of the parties, the other party would be at liberty as provided under the law to question the veracity of such evidence or exercise the right of cross examination as may be required. As agreed by the parties, the learned appellate Court is requested to do the needful and complete the adjudication within a period of six months from today. It is also agreed by the parties that both the parties would appear before the learned appellate Court on 07.02.2020. 9. The appeal stands allowed to the extent as indicated above. 10. Send back the LCR immediately.