Research › Search › Judgment

Chhattisgarh High Court · body

2024 DIGILAW 45 (CHH)

Namsharan Dewangan v. Krishna Bai

2024-01-11

RAKESH MOHAN PANDEY

body2024
JUDGMENT : Rakesh Mohan Pandey, J. Heard. 1. This second appeal has been preferred by defendants No.1 to 3 against the judgment and decree passed by the learned Additional District Judge, Janjgir-Champa (C.G.) in Civil Appeal No.166-A/2018 dated 17.05.2019 whereby the appeal preferred by defendants No.1 to 3 under Section 96 of the Civil Procedure Code was dismissed and the judgment and decree passed by the learned Civil Judge Class-I, Akaltara, District Janjgir-Champa (C.G.) in Civil Suit No.253-A/2011 dated 22.11.2018 was affirmed. 2. At the very outset, learned counsel appearing for the appellants/defendants No.1 to 3 would submit that the application under Order 41 Rule 27 of the CPC has been moved for taking additional evidence on the record as defendants No.1 to 3 could not produce relevant documents/the order passed by the Sub-Divisional Officer and certain revenue records before the learned Courts below. He would further submit that the documents go to the root of the case and they are necessary for the just decision of the case. 3. On the other hand, learned counsel appearing for the plaintiff would submit that the case is not yet admitted and if the case is dismissed at the admission stage, there is no need to decide the application filed under Order 41 Rule 27 of the CPC. In support of his contention, he has placed reliance on the judgment passed by this Court in the matter of Chandra Bhushan Shukla Vs. Surmila (dead) through Lr's and another in Second Appeal No.373 of 2008 decided on 24.02.2020 wherein in paras 10 & 11 it was held as under:- "10. In the matter of Union of India v. Ibrahim Uddin and another, reported in 2012 (8) SCC 148 , Their Lordships of the Supreme Court have considered the stage, in which the application filed under Order 41 Rule 27 of CPC has to be considered and held as under:- "49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merit so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merit so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of - additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage, or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial Cause. The true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect become apparent to the court. 52. Thus, from the above, it is crystal clear an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record, to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored." 11. Similarly, in Khemchand Mulchand v. Government, of Madhya Pradesh, Bhopal, reported in 1972 MPLJ 524 , The Madhya Pradesh High Court has admitting clearly the held that additional the application documents filed for at an appellate stage should be decided only after hearing of the appeal on merits and held as under: "4. Similarly, in Khemchand Mulchand v. Government, of Madhya Pradesh, Bhopal, reported in 1972 MPLJ 524 , The Madhya Pradesh High Court has admitting clearly the held that additional the application documents filed for at an appellate stage should be decided only after hearing of the appeal on merits and held as under: "4. Even though the position that an appellate Court is not in a position to decide whether additional evidence should be allowed in the appeal unless it is first heard on merits is clear enough on the wording of Order 41, rule 27(1) itself, the practice has grown up in the lower appellate Courts of deciding, an application under Order 41, rule 27(1) immediately after it is moved and even before hearing the appeal on merits; It is beyond comprehension how the appellate Courts are able to decide such applications when they have no idea whatsoever of the merits of the appeal. This practice must stop forthwith and no lower appellate Court should yield to the request of any party to consider its application under Order 41, rule 27(1) before the hearing of the appeal itself. The appeal must first be heard on the merits and then the lower appellate Court Should decide whether the application for production of additional evidence should or should not be allowed. If the application is allowed, then, no doubt, the appeal has to be heard again on merits after the reception of additional evidence for final disposal. 5. What has been said in relation to an application under Order 41, rule 27(1) applies equally to the disposal of an application for amendment of pleadings made at the appellate stage. The question whether a party should or should not be allowed to amend its pleadings at the appellate stage cannot in its very nature 4 1972 MPLJ 524 8 be decided unless the appeal is first heard on merits. The order of the Additional District Judge, Chhindwara, permitting the non-applicants Nos.4 and 5 to produce additional evidence and to amend their written statement must, therefore, be set aside and the Additional District Judge must be directed to consider the said non-applicants' application under Order 41, rule 27 and the application for amendment of the written statement after hearing the appeal on merits." 4. Heard on admission and formulation of substantial question of law. 5. Heard on admission and formulation of substantial question of law. 5. The facts of the present case are that the plaintiff filed a civil suit for declaration of title, possession and further declaration that the sale deed executed by defendant No.4 in favour of defendants No.1 to 3 is null and void. The agricultural land ad-measuring 12.60 acres was recorded in the name of Bhagwat Prasad and Narmada Prasad situated at Village-Bhilai, Tehsil-Baloda, District Janjgir-Champa. Bhagwat Prasad sold 4 acres of land through a registered sale deed dated 07.02.2003 vide Ex.P/2 to the plaintiff and the possession was also handed over to her. It is not in dispute that Bhagwat Prasad died issue-less. During his lifetime, Narmada Prasad executed three sale deeds in favour of defendants No.1 to 3 vide Ex.D/1, Ex.D/4 and Ex.D/5. The area mentioned in the sale deeds is 4 acres, 4 acres and 3 acres, respectively. The dispute arose when the sale deeds were executed by Narmada Prasad in favour of defendants No.1 to 3 as the total area of the land was 12.60 acres and out of that, 4 acres of land was sold by Bhagwat Prasad to the plaintiff on 17.02.2003. The defendants No.1 to 3 tried to take possession of the part which was sold to the plaintiff by Bhagwat Prasad, therefore, a civil suit was filed by the plaintiff. The defendants took possession of some part of the suit property, therefore, the plaintiff sought relief as stated above. Defendants No.1 to 3 filed their joint written statement and stated that they were the bonafide purchasers and there was no partition between Bhagwat Prasad and Narmada Prasad, therefore, without partition, no specific share could have been sold by Bhagwat Prasad to the plaintiff. It is further pleaded that there was a partition and Narmada Prasad/defendant No.4 had sold his share. 6. Learned trial Court framed issues and held that the plaintiff has the right over the suit property i.e., 4 acres out of 12.60 acres of land bearing survey No.905/3d and the sale deed executed by defendant No.4 in favour of defendants No.1 to 3 with regard to survey No.905/3d is not binding upon the plaintiff. Learned trial Court further held that the defendants had dispossessed the plaintiff from some part of the area of 3.89 acres of land. Learned trial Court further held that the defendants had dispossessed the plaintiff from some part of the area of 3.89 acres of land. It is also held by the learned Trial Court that the sale deed executed by defendant No.4 in favour of defendants No.1 to 3 is valid and the plaintiff is entitled to get possession of his property purchased from Bhagwat Prasad through a registered sale deed. 7. An appeal was preferred by the appellants/defendants No.1 to 3 and the learned First Appellate Court affirmed the findings recorded by the learned trial Court. 8. Learned counsel appearing for the appellants/defendants No.1 to 3 would submit that the entire 12.60 acres of land was given to Narmada Prasad in the partition. He would further submit that defendant No.4 was the owner of the property therefore, he had the right to execute the sale deeds in favour of defendants No.1 to 3. He would also submit that the sale deed executed by Bhagwat Prasad in favour of the plaintiff and its mutation was challenged by defendants No.1 to 3 before the Sub-Divisional Officer and an order was passed in favour of defendants No.1 to 3 in the year 2009 and that document is filed along with an application under Order 41 Rule 27 of the CPC. Thus, he would submit that when the property was sold by Bhagwat Prasad to the plaintiff which was not in his share he had no right to execute the sale deed and thus, the findings recorded by the learned Courts below are liable to be set aside. 9. On the other hand, learned counsel appearing for the respondent/plaintiff would submit that indisputably 12.60 acres of land was recorded in the name of Bhagwat Prasad and Narmada Prasad and there is no pleading in the written statement that the entire property of 12.60 acres of land was given in partition to Narmada Prasad/defendant No.4 only. He would further submit that out of 12.60 acres of land, Bhagwat Prasad had sold 4 acres of land to the plaintiff through a registered sale deed and during his lifetime, he never challenged the sale deed. He would also argue that the order of mutation was passed on 29.03.2003 in favour of the plaintiff. He would further submit that out of 12.60 acres of land, Bhagwat Prasad had sold 4 acres of land to the plaintiff through a registered sale deed and during his lifetime, he never challenged the sale deed. He would also argue that the order of mutation was passed on 29.03.2003 in favour of the plaintiff. He would also submit that Bhagwat Prasad was defendant No.5 in the civil suit, meaning thereby at the time of filing of the civil suit, he was alive and Bhagwat Prasad and Narmada Prasad never questioned the sale deed executed in favour of the plaintiff. He would further argue that there is a concurrent finding recorded by the learned Courts below, therefore the instant appeal deserves to be dismissed. 10. Mr. Dinesh Tiwari, learned Government Advocate appearing for the State would support the judgment passed by the learned Courts below. 11. I have heard learned counsel appearing for the parties and perused the records. 12. On perusal of the record, it is quite vivid that the entire property of 12.60 acres of land was recorded in the name of Bhagwat Prasad and Narmada Prasad. Bhagwat Prasad executed a sale deed on 17.02.2003 in favour of the plaintiff and sold 4 acres of land bearing survey No.905/3d. There is no document or evidence to demonstrate that the entire property of 12.60 acres of land was given to Narmada Prasad in the partition. Bhagwat Prasad and Narmada Prasad were real brothers. Bhagwat Prasad got only 4 acres of land in partition and he sold his share. The remaining 8.60 acres of land were in share of Narmada Prasad/defendant No.4. He executed 3 sale deeds Ex.D/1, Ex.D/4 and Ex.D/5. The area mentioned in the sale deeds was 4 acres, 4 acres and 3 acres of land, respectively, whereas the remaining area of the land was 8.60 acres after the sale of 4 acres by Bhagwat Prasad therefore, defendant No.4 due to miscalculation or intentionally sold the property in excess. 13. The property was recorded in the name of Bhagwat Prasad and Narmada Prasad, therefore, Bhagwat Prasad had an absolute right to alienate the property and he utilized his right and sold 4 acres of land to the plaintiff and the possession was also handed over to her. Defendants No.1 to 3 based on sale deeds executed by defendant No.4 in their favour dispossessed the plaintiff. Defendants No.1 to 3 based on sale deeds executed by defendant No.4 in their favour dispossessed the plaintiff. Even defendants No.1 to 3 are not certain as to which part of the suit property out of 8.60 acres of land was sold by defendant No.4 to them. It appears that it is a dispute between Narmada Prasad and defendants No.1 to 3 and the area of land in dispute is 8.60 acres of land only and it will not cover the land which was sold by Bhagwat Prasad to the plaintiff. 14. Taking into consideration the concurrent findings recorded by the learned Courts below, in the considered opinion of this Court, no substantial question of law is involved in the present appeal. Consequently, the present appeal fails and is hereby dismissed. 15. With regard to application Order 41 Rule 27 of the CPC, as the appeal is dismissed at the admission stage itself, there is no need to decide the application. Consequently, the application filed under Order 41 Rule 27 of the CPC is also rejected. 16. A decree be drawn accordingly. No cost(s).