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2020 DIGILAW 574 (RAJ)

Meethalal v. Lrs Of Surajmal

2020-07-21

ARUN BHANSALI

body2020
JUDGMENT Arun Bhansali, J. - This second appeal under Section 100 CPC is directed against the judgment & decree dated 23.02.2018 passed by the Additional District Judge, Jaitaran, District - Pali ('the First Appellate Court'), whereby the judgment & decree dated 14.01.2009 passed by the Additional Civil Judge (Junior Division), Jaitaran ('the Trial Court'), has been confirmed and the appeal and suit filed by the appellant have been dismissed, respectively. 2. The appellant-plaintiff filed a suit for permanent injunction against the respondent-defendant with the averments that a pattasud plot situated in Gram-Balunda belongs to the plaintiff. On 19.11.1975, a patta No.3 was issued by the Office of the Gram Panchayat. The residential hut and enclosures were demolished in the floods. It was alleged that the defendant was bent upon taking possession and transfer the plot and threatened for the same on 17.07.1995. Based on the averments, an injunction was sought against interference in the use of the plot in question and in case possession is taken during the pendency of the suit, the same be handed back. 3. The respondent-defendant filed written statement claiming possession of the plot for over 40 years. The grant of patta on 19.11.1975 was denied. It was stated that as the plaintiff was not in possession of the plot, simple suit for injunction was not maintainable. 4. The trial court framed 5 issues. On behalf of the plaintiff, four witnesses were examined and patta was exhibited as Exhibit-1. On behalf of the defendant, five witnesses were examined. 5. After hearing the parties, the trial court came to the conclusion that the plaintiff failed to establish his possession over the plot of land, his possession was not proved, it was held that he was not entitled for permanent injunction. On the issue pertaining to maintainability of the suit, it was held that in absence of possession, the suit was not maintainable and, consequently, the same was dismissed. 6. Feeling aggrieved, the appellant filed first appeal. During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant, which was rejected by the appellate court on 18.09.2012. 7. Feeling aggrieved, the appellant filed SBCW No. 5649/2013, which came to be decided by order dated 07.02.2014 by a coordinate Bench of this Court, whereby it was directed as under:- "5. During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant, which was rejected by the appellate court on 18.09.2012. 7. Feeling aggrieved, the appellant filed SBCW No. 5649/2013, which came to be decided by order dated 07.02.2014 by a coordinate Bench of this Court, whereby it was directed as under:- "5. I have heard the learned counsel for the parties and perused the material on record. 6. In view of the law laid down on the issue, the appellate court has power to allow additional evidence for just and proper adjudication of the case. In this view, in the facts and circumstances of the present case and in the interest of justice, the petitioner-plaintiff is to be allowed to produce relevant documents on the record. The judgment relied on by the respondent-defendant in the facts of the present case is distinguishable. 7. Consequently, the impugned order dated 18th September 2012 passed by learned appellate court below in Civil First Appeal No.02/2009 rejecting application of the petitioner-appellant filed under Order 41 Rule 27 CPC is set aside and learned appellate court is directed to take the documents produced by the appellant on the record." 8. The first appellate court took the documents on record and whereafter decided the appeal, upholding the findings recorded by the trial court and consequently, dismissed the appeal. 9. Feeling aggrieved, the present second appeal has been filed. 10. By order dated 07.08.2018, the appeal was admitted on the following substantial question of law:- "(i) Whether the first appellate court was justified in not taking into consideration the documents / deal with the same produced by the appellant alongwith application under Order XLI, Rule 27 CPC which stood allowed by order dated 07.02.2014?" 11. It is submitted by learned counsel for the appellant that the appellate court was not justified in not taking into consideration the documents produced by way of application under Order XLI, Rule 27 CPC and that the said Court was also not justified in not seeking evidence in relation of the said documents and, therefore, the judgment impugned stands vitiated and, therefore, the appeal deserves to be allowed. 12. 12. It was submitted with reference to the provisions of Order XLI, Rule 28 CPC that it was necessary for the appellate court to seek proving of the documents and in absence whereof, the appellate court could not have decided the appeal and for failure to follow the procedure as provided under CPC, the judgment of the first appellate court stands vitiated and deserves to be set aside. 13. Attempts were also made to make submissions in relation to the findings recorded by the two courts below in relation to the possession of the plaintiff on the plot in question referring to the documents produced under Order XLI, Rule 27 CPC. 14. Reliance was place on judgment of Hon'ble Supreme Court in Alamelu Ammal & Anr. v. S. Rani & Ors., (2017) AIR SC 2612 . 15. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that the appellant has got framed the question of law without disclosing the material facts before the Court and, therefore, the order admitting the appeal itself deserves to be recalled. 16. It was submitted that after the order was passed by this Court in SBCW No. 5649/2013 allowing the application filed by the appellant under Order XLI, Rule 27 CPC, the appellate court in terms of the directions of the High Court took the documents on record. 17. It was submitted that the appellant filed an application dated 04.08.2016 with a prayer that the documents produced be marked as exhibits. 18. Though the application was opposed by the respondent, the appellate court by its order dated 02.05.2017, accepted the application and marked the documents as Court Exhibit-1 to 5. Whereafter, while deciding the appeal, the documents have been thoroughly considered by the appellate court, however, as nothing turned on the said documents, the findings recorded by the trial court were upheld and the appeal was dismissed. 19. Submissions have been made that provisions of Order XLI, Rule 27 and 28 CPC have been followed by the appellate court and the plea sought to be raised alleging not taking into consideration the documents as reflected from the question of law framed by this Court, has no substance and, therefore, the appeal deserves to be dismissed. 20. Reliance was place on Sathrevada Valliamma v. S. Sabhapathi & Ors., (2000) 3 CivCC 392 (A.P.). 21. 20. Reliance was place on Sathrevada Valliamma v. S. Sabhapathi & Ors., (2000) 3 CivCC 392 (A.P.). 21. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 22. The question of law framed by this Court while admitting the appeal relates to non-consideration of the documents/deal with the same as produced by the appellant alongwith application under Order XLI, Rule 27 CPC. 23. This Court, while accepting the writ petition filed by the appellant, had passed directions, as quoted hereinbefore, requiring the appellate court to take the documents produced by the appellant on record. The appellate court by its order dated 09.10.2015 took the documents on record and the appeal was fixed for hearing. 24. On 04.08.2016, as submitted by learned counsel for the respondent, an application was filed by the appellant with the following prayer:- 25. Though the application was opposed, the appellate court by its order dated 02.05.2017 allowed the application and directed as under:- 26. From the above, it would be seen that the appellant himself made a prayer that the documents produced be marked as exhibits, which prayer was accepted by the appellate court. Thereafter, while deciding the appeal, the documents produced were taken into consideration by the appellate court in the following manner:- 27. A bare perusal of the above consideration by the appellate court, reveals that the relevance of the documents in relation to the issues, which arose before the Court i.e. the claim of possession made by the plaintiff was thoroughly examined and the appellate court came to the conclusion that the said documents do not lead to any inference in relation to the appellant's possession and after taking into consideration the other material and evidence available on record, upheld the findings recorded by the trial court. 28. In view of the above, it cannot be said that the appellate court in any manner had failed to take into consideration the documents produced by the appellant under Order XLI, Rule 27 CPC. 29. So far as the plea raised by learned counsel for the appellant that in support of the documents in question, the appellant should have been permitted to lead evidence and the order of the appellate court stands vitiated for not permitting leading of the evidence, has no substance. 29. So far as the plea raised by learned counsel for the appellant that in support of the documents in question, the appellant should have been permitted to lead evidence and the order of the appellate court stands vitiated for not permitting leading of the evidence, has no substance. As already noticed hereinbefore, it was the specific prayer of the appellant that the documents in question be marked as exhibit and all the documents have been marked as exhibit and have been taken into consideration by the appellate court and, therefore, no prejudice whatsoever has been caused to the appellant in not permitting leading of the evidence qua the said documents for which no prayer was made, which have already been admitted in evidence as Court Exhibits. 30. So far as the reliance placed on judgment in the case of Alamelu Ammal (supra) is concerned, Hon'ble Supreme Court, though laid down that the documents produced under Order XLI, Rule 27 CPC, cannot be taken into consideration unless evidence has been led and document is proved by leading evidence, the said dictum would have no application to the present case as it does not lie in the mouth of the appellant to question the taking into consideration of documents produced by him and, therefore, nothing turns on the judgment of Hon'ble Supreme Court in the present case. 31. The attempts made by learned counsel for the appellant to make submissions seeking to question the validity of findings recorded by the two courts below in relation to possession of the appellant over the plot of land, though no substantial question of law has been framed by this Court, has been examined, however, learned counsel for the appellant failed to point out any perversity in the findings concurrently recorded by the two courts below by taking into consideration oral and documentary evidence, specially the statement of the plaintiff himself that the defendant was not permitting him to enter in the plot in question and as such, the plea sought to be raised in this regard also has not substance. 32. In view of the above, insofar as the question of law framed by this Court is concerned, the same is answered in the manner that the appellate court has duly taken into consideration the documents produced by the appellant under Order XLI, Rule 27 CPC. 33. 32. In view of the above, insofar as the question of law framed by this Court is concerned, the same is answered in the manner that the appellate court has duly taken into consideration the documents produced by the appellant under Order XLI, Rule 27 CPC. 33. In view of the above, no case for interference in the concurrent judgments of two courts below, is made out in the present second appeal. The same is, therefore, dismissed. No order as to costs.