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2021 DIGILAW 836 (KAR)

Ambasa Peetambarsa v. Executive Engineer

2021-08-30

HANCHATE SANJEEV KUMAR

body2021
JUDGMENT : 1. The present appeal is filed by the plaintiffs under Sec. 100 of the Code of Civil Procedure, 1908 ("CPC" for short) challenging the judgment and decree passed in R.A.No.35/2007 dtd. 1/6/2012 by the Court of the Senior Civil Judge, Ron ("the First Appellate Court" for short), which confirmed the judgment and decree passed in O.S.No.228/1997 dtd. 30/8/2007 by the Court of the Civil Judge (Jr.Dn.), Ron ("the Trial Court" for short). 2. Brief facts of the case are as follows: It is contending that the appellants-plaintiffs are the owners of land bearing R.S.No.287/2B+2A/1, measuring 1 acre 25 guntas situated within the limits of Unachageri village of Ron Taluk. 3. It is stated that respondent Nos.1 and 2- defendant Nos.1 and 2 have constructed the Inspection Bungalow on the suit land, without there being any acquisition of the said land. Therefore, the appellants-plaintiffs are contending that the construction of Inspection Bungalow on the suit land is illegal and amounts to encroach upon the property of the appellants-plaintiffs. Therefore, with these contentions the appellants-plaintiffs have filed the suit seeking for declaration and possession. 4. The Trial Court on considering the oral and documentary evidence on record has dismissed the suit of the appellant-plaintiffs on the ground that, the appellants-plaintiffs have failed to prove their title and ownership over the suit land by producing evidences. 5. The judgment and decree passed by the Trial Court in dismissing the suit is also confirmed by the First Appellate Court in the regular appeal by endorsing the view taken by the Trial Court that, the appellants-plaintiffs have not produced documentary evidence to show that, they are the owners and having title over the suit land. Therefore regular appeal filed by the appellants-plaintiffs is dismissed. 6. Being aggrieved by the judgment and decree passed by both the Courts below in dismissing the claim of the appellants-plaintiffs, the appellants-plaintiffs have preferred the present regular second appeal. 7. Therefore regular appeal filed by the appellants-plaintiffs is dismissed. 6. Being aggrieved by the judgment and decree passed by both the Courts below in dismissing the claim of the appellants-plaintiffs, the appellants-plaintiffs have preferred the present regular second appeal. 7. In this appeal, the appellants-plaintiffs have filed I.A.No.1/2021 under Order XLI Rule 27 read with Sec. 151 of CPC for production of documentary evidence in the form of additional evidence and produced 12 documents contending that these are the documents produced by way of additional evidence and before the Trial Court as well as before the First Appellate Court, those documents were not available to the appellants-plaintiffs, even though, with due diligence and making best efforts in tracing out these documents and soon after tracing out these documents, the appellants-plaintiffs have filed this application to produce the same before this Court in the form of additional evidence by invoking provision under Order XLI Rule 27 read with Sec. 151 of CPC. 8. Therefore, learned counsel appearing for the appellants-plaintiffs submitted that, the appellants-plaintiffs are the illiterate rustic villagers and they are not well versed with the law and legal procedures and that cannot be made ground to reject their claim of ownership over the land and now they obtained the documents proving their title. Therefore, prays to remand the case to the Trial Court for fresh consideration. 9. On the other hand, learned High Court Government Pleader appearing for the respondents-defendants (State) submitted that both the Courts below are correct in dismissing the claim of the appellants-plaintiffs as the appellants-plaintiffs have not produced any documentary evidence showing their ownership and title over the suit land. Therefore in the absence of evidence, the appellants-plaintiffs are not entitled for relief of declaration. Accordingly, what is held by both the Courts below is, proper and correct and accordingly he supported the judgment and decree passed by Both the Courts below. Hence, he prays to dismiss the appeal. 10. Having heard the arguments canvassed by both the learned counsel appearing for the parties, the following substantial question of law arises for consideration by this Court. Hence, he prays to dismiss the appeal. 10. Having heard the arguments canvassed by both the learned counsel appearing for the parties, the following substantial question of law arises for consideration by this Court. "Whether, under the facts and circumstances involved in the case, in filing the application for seeking production of additional evidence in this appeal and dismissing the appeal on the ground that there are no other grounds available for interfering with the appeal, hence would it render injustice to the appellants-plaintiffs where the appellants-plaintiffs have got documents of title in proving their title and ownership over the suit land, hence, whether would it be feasible to remand the case to the Trial Court for fresh Trial in order to give substantial justice on substantial cause? 11. Upon considering the above said substantial question of law framed, this Court is constrained itself to go on with the case on merits and do not venture to consider the case on merits. The Trial Court has dismissed the suit and the First Appellate Court has affirmed the view taken by the Trial Court on the ground that, the appellants-plaintiffs have failed to produce the documentary evidence to prove title and ownership over the suit land. But now, the appellants-plaintiffs have filed an application in I.A.No.1/2021 seeking production of additional evidence and annexed as many as 12 documents contending that, these are the vital documents to prove the title and ownership of the appellants-plaintiffs over the suit land. 12. This Court cannot consider the merits involved in the case only on the basis of documentary evidences placed by invoking the provision under Order XLI Rule 27 of CPC. Therefore, having satisfied with the explanations /reasons explained in the affidavit that, they were not able to procure those documents during pendency of the original suit as well as regular appeal, hence they have suffered dismissal of the suit and now the documents annexed with the application for additional evidence are stated to be important documents. Therefore considering the explanation offered by the appellants-plaintiffs, this Court deems fit to remand the matter to the Trial Court for fresh consideration in accordance with law after dealing with the documents sought to be produced by the appellants-plaintiffs. 13. Therefore, the matter would be considered on its substantial cause. Therefore considering the explanation offered by the appellants-plaintiffs, this Court deems fit to remand the matter to the Trial Court for fresh consideration in accordance with law after dealing with the documents sought to be produced by the appellants-plaintiffs. 13. Therefore, the matter would be considered on its substantial cause. Here, in the present case the original plaintiff No.1 died, the appellants who are legal heirs of the original plaintiff No.1 and plaintiff No.2 have contended that the documents now sought to be produced by way of additional evidence were not available during the life time of plaintiff No.1. Therefore, they could not produce the same before the Trial Court. In spite of exercise of due diligence by original plaintiff No.1, the documents could not be produced before the Trial Court or before the First Appellate Court. Therefore, they have suffered set back in both the proceedings of the Courts below. Therefore, by invoking Sub Clause (b) of Order 41 Rule 27 of CPC, this Court is of the opinion that, having considered the application filed for additional evidence, to be considered, while deciding the title of the parties. Therefore, the matter is to be considered on substantial cause, where it is contended by the plaintiffs that the documents sought to produce during Appellate stage in this case, are the important documents in proving the title of documents. Therefore, rejecting the claim of the petition, at this stage, is little bit harsh for the reason that the name of the plaintiffs are having in the documents to prove their title and ownership over the property. Otherwise, in not giving the opportunity to the appellants/plaintiffs to produce the evidence by proving the title of ownership would be injustice causing to the plaintiffs. Therefore, for the aforesaid reasons, the application in IA.No.1/2021 filed by the plaintiffs in this case for production of additional documents can be considered and accordingly considered. Hence, IA.No.1/2021 is allowed. 14. But upon perusing the documentary evidence placed along with application filed in IA.No.1/2021 above stated, the merits and contents in the said documents are to be examined during the trial and that venture cannot be done in this appeal. Hence, IA.No.1/2021 is allowed. 14. But upon perusing the documentary evidence placed along with application filed in IA.No.1/2021 above stated, the merits and contents in the said documents are to be examined during the trial and that venture cannot be done in this appeal. Therefore, the domain of considering the documents on its merits is left with Trial Court and this Court without expressing any opinion on the merits involved in the case, the matter is required to be remitted to the Trial Court for fresh consideration in accordance with law after giving liberty to the appellants-plaintiffs to produce the documents as they wanted to produce in this appeal. Therefore, the matter is remanded to the Trial Court for fresh consideration in accordance with law and in such an event, both the parties are at liberty to adduce additional evidence, if they are so advised. Accordingly, the judgment and decree passed by both the Courts are liable to be set aside and remanded the matter to the Trial Court for fresh consideration. 15. Accordingly, I answer the substantial question of law. Hence, I proceed to pass the following: ORDER : (a) The appeal is hereby allowed. (b) The judgment and decree passed in R.A.No.35/2007 dtd. 1/6/2012 by the Court of the Senior Civil Judge, Ron and the judgment and decree passed in O.S.No.228/1997 dtd. 30/8/2007 by the Court of the Civil Judge (Jr.Dn.), Ron are hereby set aside. (c) The matter is remanded to the Trial Court for fresh consideration in accordance with law. The appellants/ plaintiffs are at liberty to produce the documents now seeks to produce by way of additional evidence, before the Trial Court for proving their title and ownership over the suit property. In such an event, both the parties are given liberty to adduce any further/additional evidence in support of their claim, if they are so advised. (d) The Trial Court is directed to consider the matter afresh and dispose of the suit in accordance with law within a period of nine months from the date of receipt of copy of this order. (e) Both the appellants-plaintiffs and respondents-defendants shall appear before the Trial Court on 4/10/2021, without expecting notice from the Trial Court and from that date the Trial Court shall dispose of the matter within a period of nine months. (e) Both the appellants-plaintiffs and respondents-defendants shall appear before the Trial Court on 4/10/2021, without expecting notice from the Trial Court and from that date the Trial Court shall dispose of the matter within a period of nine months. (f) Both the parties are directed to maintain status-quo insofar as the possession is concerned till disposal of the suit.