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2021 DIGILAW 3534 (MAD)

M. A. C. Ayesha Ummal v. M. L. Mohamed Hasan

2021-12-16

R.VIJAYAKUMAR

body2021
JUDGMENT : The defendant is the appellant herein. 2. The plaintiff filed O.S.No.510 of 1995 before the Additional District Munsif Court, Tiruchendur for declaration of title and permanent injunction over three schedules of properties. The trial Court decreed the suit with regard to 1st and 2nd schedule properties and dismissed the suit with regard to 3rd schedule property. Challenging the said judgment and decree of the trial Court, the plaintiff filed A.S.No.16 of 2000 before the Sub Court, Tuticorin. The First Appellate Court allowed the appeal and granted a decree in favour of the plaintiff for 3rd schedule property also. As against the same, the present second appeal has been filed by the defendant. The plaintiff is the owner of the 3rd schedule item of property and prayed for decree as prayed for. 3. On the other hand, the defendant filed a written statement disputing the genealogy claimed by the plaintiff and also disputed the title and possession of the plaintiff over all the suit schedule properties. The trial Court after consideration of the oral and documentary evidence, arrived at a conclusion that the plaintiff has established his title and possession over the 1st and 2nd items of the suit schedule properties and dismissed the suit with regard to the 3rd item of the suit schedule properties. 4. As against the said judgment and decree, the plaintiff alone preferred A.S.No.16 of 2000. The learned First Appellate Court entertained an application for additional evidence and marked Exhibits A19 to A21. Even though the defendant has disputed the genealogy in the written statement, the First Appellate Court came to a conclusion that the defendant has admitted the genealogy claimed by the plaintiff. Further, the First Appellate Court based upon the documents received as additional evidence, decreed the suit of the plaintiff with regard to the 3rd schedule property also. As against the same, the present second appeal has been filed. The second appeal has been admitted on the following substantial questions of law: “(1) Whether the learned Sub Judge is right in reversing the decree passed in O.S.No. 510 of 1995 by learned District Munsif, Thiruchendur, without setting aside the findings and title in respect of Item III Plaint Schedule Property in favour of the defendant/appellant as established by Exhibits B-1, 5, 6, 7, 8 and 13? (2) Whether the learned Sub Judge having held that the plaintiff/respondent has admitted that the northern half of original lands belonged to the defendants is justified in holding that item III of the Plaint Schedule is only the southern half and granting a decree on that basis? (3) Whether the plaintiff/respondent has established his title to item III of Plaint Schedule Property in the absence of any material or evidence? (4) Whether Exhibits B-1, B-5, and B-8, apart from the plaintiff's admission is not sufficient to prove defendants title to item III of Plaint Schedule Property? (5) Whether the Lower Appellate Court is right in entertaining Additional documents Exhibits A-19 to A-21, which is not supported by pleadings or evidence and placing reliance on the same to allow the appeal? (6) Whether the Lower Appellate Court is right in considering Exhibit A-20 and holding that genealogy of the plaintiff is established in the absence of any pleading or evidence?” 5. At the time of hearing, the learned counsel for the appellant filed a memo seeking permission of the Court to raise additional substantial questions of law. The said memo was filed on 22.11.2021. 6. The learned counsel for the respondent was granted time to make his submissions on the additional substantial question of law and the matter was posted to 07.12.2021. 7. The learned counsel for the appellant contended that the First Appellate Court has received 3 documents as additional evidence and the documents have been marked without any oral evidence. The learned counsel for the appellant further contended that the defendant/appellant has not satisfied the condition under Order 41 Rule 27 C.P. C and the First Appellate Court ought not to have entertained the additional evidence. The learned counsel for the appellant further contended that even if the First Appellate Court decides to receive additional evidence, it can be received only after strictly followed the procedure contemplated under Order 41 Rule 28 C.P.C. 8. The learned counsel for the appellant pointed out that the First Appellate Court has solely relied upon the additional evidence for decreeing the suit. 9. The learned counsel for the appellant pointed out that the First Appellate Court has solely relied upon the additional evidence for decreeing the suit. 9. The learned counsel for the appellant relied upon a judgment of this Court reported in 2015 5 CTC 78 , wherein this Court has held that no document can be received without being proved through witnesses and marking a document across the bar would deprive the opportunity to the opposite party to cross-examine such witnesses relating to the relevancy of the documents. This Court has also found that unless the parties have agreed for marking the document, the procedure contemplated under order 41 Rule 27 and Order 41 Rule 28 C.P.C have to be strictly followed by the Court. The learned counsel for the appellant also relied upon the judgment reported 2018 3 CTC 883 wherein, the Hon'ble Supreme Court has held that where an opportunity is granted to lead additional evidence, the other party should also be granted an opportunity either to lead evidence in rebuttal or to explain the admission. The Hon'ble Supreme Court has held that Rules of natural justice and fair play mandates that conducting party should be given an opportunity to rebut the evidence. The Hon'ble Supreme Court further held that the application to receive additional evidence and the main appeal should not be heard together. The appellate Court after deciding to admit the additional evidence, should give opportunity to other side to lead evidence in rebuttal. 10. Per contra, the learned counsel for the respondent contended that Exhibits A19 and A20 are registered documents and Exhibit A21 is a public document and the First Appellate Court has not committed any error in admitting the said documents in the appellate stage. 11. I have carefully considered the submissions on either side. 12. The trial Court had dismissed the suit with regard to the 3rd schedule property on the ground that the plaintiff has not established his title and possession over the 3rd schedule property. The trial Court has also pointed out that the plaintiff has not produced any document to establish his title. The plaintiff has filed the first appeal and pending appeal, the plaintiff has sought permission of the Court to mark 3 documents which according to the plaintiff would prove his title and possession over the 3rd schedule property. The trial Court has also pointed out that the plaintiff has not produced any document to establish his title. The plaintiff has filed the first appeal and pending appeal, the plaintiff has sought permission of the Court to mark 3 documents which according to the plaintiff would prove his title and possession over the 3rd schedule property. The First Appellate Court has received the same cross the Bar and marked them as Exhibits A19 to A21. Now, the issue that arises for consideration is whether the procedure adopted by the first appellate Court is correct in receiving the additional evidence or relying upon the same to allow the first appeal granting a decree in favour of the plaintiff for the 3rd schedule property also. 13. As rightly contended by the learned counsel for the appellant the judgment of our High Court reported in 2015 5 CTC 78 and the judgment of Hon'ble Supreme Court reported in 2018 3 CTC 883 have deprecated the practice of receiving additional evidence by the appellate Court without recording oral evidence. In the present case, the documents have been marked without examining any witness. Unless a document is marked through a witness, the other side will not have an opportunity to crossexamine the said witness. The respondent do not have any opportunity to let in rebuttal evidence or deny the admission or explain the admissions. Hence, fair play and natural justice demand that any document is marked only through a witness after affording opportunity to the other side to rebuttal the said evidence. 14. In view of the above discussion, I find that the procedure adopted by the first Appellate Court for receiving the additional evidence is not in accordance with law under order 41 Rule 27 and order 41 Rule 28 C.P.C Further, the said procedure is also in violation of the judgments of our High Court and Hon'ble Supreme Court. 14. Since the First Appellate Court has solely relied upon the additional evidence and allowed the appeal and that the marking of the documents as additional evidence, is not in accordance with law, the judgment and decree of the first appellate Court deserves to be set aside. The judgment and decree of the first appellate Court are set aside and the appeal is remitted back to the file of the first appellate Court with the following directions: 1. The judgment and decree of the first appellate Court are set aside and the appeal is remitted back to the file of the first appellate Court with the following directions: 1. The plaintiff may be permitted to mark the documents subject to proof, admissibility and relevance. 2. Documents may be received as additional evidence after strictly following the procedure contemplated in the judgment reported in 2015 5 CTC 78 and 2018 3 CTC 883. 3. Since, the judgment and decree of the first Appellate Court has been set aside, the parties are permitted to raise all the issues before the first appellate Court. 4. Any oral or documentary evidence on the side of the defendant shall be restricted to contradict or rebut the additional evidence produced by the plaintiff. However the parties will be at liberty to raise all the legal issues at the time of arguments. The parties are directed to appear before the first appellate Court on 04.01.2022. 15. With the above said observations, the second appeal is allowed and the appeal is remitted back to the first appellate Court to be disposed on merits and in accordance with law. No costs.