Bansidhar Panda (since dead) through L.Rs & others vs Pravakar Panda & another

Defendant no.1 is the appellant against a confirming judgment.

Plaintiff-respondent no.1 instituted the suit for declaration of title, confirmation of possession, recovery of possession in the event he is

dispossessed during pendency of the suit and permanent injunction. Case of the plaintiff was that the suit property originally belonged to Kasinath

Panda and others. To press the legal necessity, they sold the suit land to the plaintiff by means of a registered sale deed dated 26.9.1962 for a

valid consideration and thereafter delivered possession. He is in possession of the suit property. When defendant nos.1 and 2 created disturbance

in his possession, he instituted O.S. No.194/72 of 64-I through mother guardian in the court of the Munsif, Puri for declaration of title, confirmation

of possession and permanent injunction. The suit was decreed. It was further pleaded that he had purchased Plot No.2262 measuring an area of

Ac.25 1/2 dec. as per ROR published in the year 1977. The said plot was divided into three plots viz. Plot Nos.2444, Ac.0.02 dec., 2445

Ac.0.06 dec. and 2448 Ac.0.16 dec. in the ROR published in the year 1977. Hal Plot Nos.2445 and 2448 had been wrongly recorded in the

name of defendant no.2. Hal Plot No.2444 had been wrongly recorded in favour of defendant no.1. The specific case of the plaintiff was that Hal

Plot No.2444 corresponds to Sabik Plot No.2262. Defendant no.1 had no semblance of right, title and interest over the suit plot. With this factual

scenario, he instituted the suit seeking the reliefs mentioned supra.

Defendant no.1 filed a written statement denying the assertions made in the plaint. It was pleaded that the plaintiff had not taken possession of

the suit schedule property. Southern portion of Sabik Plot No.2262 corresponds to Hal Plot Nos.2445 and 2448. His ancestral house stands over

Sabik Plot No.2263. Sabik Plot No.2263 corresponds to Hal Plot No.2443. Hal Plot No.2444 is in between Plot Nos.2443 and 2445 and is a

part of Sabik Plot No.2263. He is in possession of the same since 1937 openly, peacefully and to the knowledge of the plaintiff and as such,

perfected title by way of adverse possession. Defendant no.2 filed a written statement supporting the case of the plaintiff. It is apt to state here that

during pendency of the appeal, appellant no.2 died, whereafter his legal representatives have been substituted.

On the inter se pleadings of the parties, learned trial court struck nine issues. A survey knowing commissioner was appointed. He measured the

land and submitted the report. On an analysis of the evidence on record and pleadings, learned trial court came to hold that the suit property was

sold to the plaintiff by the land owners including defendant no.1 by means of a registered sale deed vide Ext.3. Title Suit No.72 of 1964 filed by

the plaintiff through his mother guardian was decreed in terms of the compromise against Kasinath Panda-defendant no.1 and ex parte against

present defendant no.1 and others. The suit schedule land was the subjectmatter of dispute in the earlier suit. It further held that the defendants had

no title or possession over the suit schedule land. Defendant no.1 and Kasinath Panda and others are the sons of Gopinath Panda. There is no

allegation that any fraud committed by the plaintiff. The decree is binding on the defendant no.1. The plaintiff is in possession of the suit property.

Plot No.2444 is a part of Sabik Plot No.2262. Held so, it decreed the suit. Unsuccessful defendant no.1 challenged the judgment and decree

before the learned District Judge, Puri, which was transferred to the court of the learned Addl. Sub-Judge, Puri and re-numbered as Title Appeal

No.10/35 of 89/88. The appeal was eventually dismissed.

The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.5(a), (b) and (c). The same are -

a. For that the Commissioner having not prepared any relay map or comparative map as per Survey Rules of C.S. Plot and M.S Plots, it is not

possible to know to what Sabik or C.S. Plots 2262 and 2263, the Hal Major settlement suit plot 2444 appertains and he has committed the

mistake by saying that by verification of maps he means that he looked to the map and compared with the spot.

b. That the area of C.S. Plot 2262 is A0.51 dec. in fact the Commissioner says it is A0.54 dec., without having shown from which plot this excess

area has come. The Commissioner has not measured any boundary plots besides suit C.S Plot 2262 and 2263 to ascertain this fact.

c. That the Commissioner has admitted that even if the suit plot 2444 measures 2450 square links he has mentioned it as 2 dec. even though he

admits that the area of both R.O.Rs of C.S. and M.S. are correct and there is no discrepancies in the area of plot and the area mentioned in the

R.O.R.

Heard Dr. Sujata Dash, learned counsel for the appellant and Mr. Buddhiram Das, learned counsel on behalf of Mr. N.C. Pati, learned counsel

for the respondents.

Before proceeding further, it is apt to state here that during pendency of the appeal, appellant has filed Misc. Case Nos.175 of 2004 and 114 of

2015 under Order 41 Rule 47 CPC for admitting parcha issued by the consolidation authorities as well as consolidation ROR published on

1.4.2005 as additional evidence. Dr. Sujata Dash, learned counsel for the appellant submitted that the documents sought to be taken as additional

evidence are public documents. The plaintiff is an old man. He is suffering from heart disease. Thus the documents may be taken as additional

evidence. She further submitted that the case of the plaintiff comes within the ambit of clause (aa) of sub-rule (1) of Rule 27 of Order 41 CPC. She

further submitted that earlier suit was decreed ex parte against defendant no.1. The suit plot no.2444 does not correspondence to Sabik Plot

No.2262. Plaintiff is not in possession of the suit property. In the consolidation ROR, the suit plot has been recorded in the name of defendant

no.1. Accordingly consolidation ROR has been issued in his favour. The same has not been challenged. The courts below have committed a

manifest illegality and impropriety in decreeing the suit solely relying on the report of the commissioner. According to her, the commissioner''s

report is a piece of evidence and the same has to be considered along with other evidence. The same having not been done, the judgments are

vitiated. She made a strenuous attempt to impeach the report on the ground that the commissioner has not properly surveyed the land. The

commissioner has not prepared any relay map as per survey rules. Area of Plot No.2262 is 51 decimals. But the commissioner submitted a report

stating that the same is 54 decimals. He has not measured any boundary plots to ascertain the increase of the area. The report is against the survey

rules. She further submitted that in the earlier decree the disputed land has been mentioned as Ac.0.51 dec. appertaining to Plot No.2262 and

therefore the decree is not binding on the defendant no.1. The description of suit schedule property is vague and as such, no effective decree can

be passed. She relied on the decisions of this Court in the case of Sridhar Mohanty v. Kamal Kumar Agarwalla, 57 (1984) CLT 417 and State

Bank of India v. M/s. Ashok Stores & others, 53 (1982) CLT 552.

Mr. Budhiram Das, learned counsel for the respondents submitted that the plaintiff had purchased Plot No.2262 Ac. 25 1/2 dec. of land. In the

Hal settlement ROR, the suit plot has been divided into three plots. When defendant no.1 created disturbance in his possession, he instituted a suit

through his mother guardian. The suit was decreed. The plaintiff is in possession of the suit plot. Defendant no.1 has no right, title and interest over

the same. He further contended that no ground is made out to admit the said documents as additional evidence.

Order 41 Rule 27(1)(aa) CPC reads as under;

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 -

xxx xxx xxx

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligences, 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]

In the case of State Bank of India (supra), this Court held;

The provisions contained in Order 41 Rule 27 of the Code of Civil Procedure are clearly not intended to allow the litigant who has been

unsuccessful in the lower Court to patch up the weak parts of his case and fill up the omissions in the Court of appeal. Under clause (1) (b) it is

only where the appellate Court requires it that additional evidence can be admitted. It may be required to enable the Court to pronounce the

judgment or for any other substantial cause, but in either case it must be the Court that requires it. The legitimate occasion for the exercise of this

discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ""when on examining the evidence as it stands,

some inherent lacuna or defect becomes apparent"". Such was the view of their Lordships of the Privy Council in Parsotim''s case expressing

themselves strongly while approving the observations made by Lord Robertson in Kessowji''s case.

xxx xxx xxx

The observations contained in the various decisions, referred to above, indicate that the provisions of clause (b) can be resorted to

notwithstanding the fact that the facts of the particular case do not satisfy the requirements of clause (a) or (aa) of rule 27(1). I find it difficult to

accept the contention of Mr. Mukherjee that the provisions contained in clause (b) cannot be applied where the provisions contained in clauses (a)

and (aa) are not satisfied. The answer to this contention lies in the contention itself, namely, that if the requirements of either clause (a) or clause

(aa) are satisfied, there would be no need to resort to the provisions contained in clause (b). That apart, as authoritatively stated by the Privy

Council and the Supreme Court, the cause of ends of justice is paramount and that is the justification for enacting the provisions contained in clause

(b).

There is no quarrel over the proposition of law laid down in State Bank of India (supra). The suit was instituted in the year 1982. The decree

was passed on 8.4.1988. First Appeal was filed in the year 1988. The Second Appeal was filed in the year 1991. Two applications for additional

evidence had been filed on 11.5.2004 and 11.5.2015 respectively. Additional evidence sought to be produced was after a period of 13 years and

24 years respectively. There is no plausible explanation as to why the applications were filed after lapse of so many years. Additional evidence can

be taken when the conditions enumerated in Order 41 Rule 27 CPC are satisfied. The provisions of Order 41 Rule 27 CPC have not been

engrafted in the Code to patch up the weak points in the case and to fill up the omission in the Court of Appeal. It does not authorise any lacunae

or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate Court to let in fresh evidence is restricted to the

purpose of pronouncement of judgment in a particular way as held by the apex Court in the case of N. Kamalam (dead) and another v.

Ayyaswamy and another, AIR 2001 SC 2802. The apex Court further held :

The time lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a

period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The

first appeal was filed before the High Court in April, 1983 but the application for permission to adduce additional evidence came to be made only

in August, 1993. Needless to record that the Courts shall have to be cautious and must always act with great circumspection in dealing with the

claims for letting in additional evidence particularly. In the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our

view, a plain reading of Order 41, Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10

years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs

of Rule 27 do not stand attracted.

For the forgoing reasons, the petitions are rejected. Even otherwise also the documents sought to be taken as additional evidence shall not

improve the case of the appellant for the reasons mentioned in the subsequent paragraphs.

Admittedly plaintiffs purchased the suit land from Kasinath Panda and others by means of a registered sale deed dated 26.9.1962. Defendant

was one of the executants of the sale deed. The plaintiff was a minor. Since defendant no.1 and others created disturbances, he instituted O.S.

No.194/72 of 64-I through his mother guardian in the court of the Munsif, Puri for declaration of title, confirmation of possession and permanent

injunction. Defendant no.1-appelant was the defendant no.2 in the said suit. The suit was decreed. The decree has attained finality. Even no

counter claim is filed to set aside the said decree. Thus inescapable conclusion is that defendant is bound by the decree passed in O.S. No.194/72

of 64-I.

The next question crops up as to whether Hal Plot No.2444 is a part of Plot No.2262. A survey knowing commissioner was appointed. He

submitted his report vide Ext.6. The report was accepted. In Sambhunath Sahu v. Upendra Palai and others 1984 (1) OLR 363, this Court held

that the commissioner''s report is only one of the pieces of evidence amongst other evidence to be led by the parties in the suit. It is in no way

binding on the Court. The Court has full power to arrive at its own conclusion even at a variance of the report on consideration of the entire

evidence on record. The evidentiary value of the report will depend on its nature and other circumstances in the case. It is open to the petitioner to

get the disputed land measured by a duly qualified person of his choice and examine him to countermand the effect of the commissioner''s report. It

is also open to the petitioner to countermand the effect of the commissioner''s report by giving other evidence.

The learned trial court, on a vivid analysis of the entire evidence on record as well as pleadings, came to held that Plot No.2444 is a part of

Sabik Plot No.2262. The report of the commissioner was considered along with other evidence on record. The decree passed in O.S. No.194/72

of 64-I has attained finality. The consolidation authorities have no jurisdiction to set aside the decree passed by the civil court. In view of the same

reliance placed on the consolidation ROR is totally misplaced. Further, the suit property has been properly described by assigning khata number,

plot number, area, mouza and district. The substantial questions of law are answered accordingly.

In Sridhar Mohanty (supra), this Court held that the consolidation authorities have no power to cancel or set aside the document. It was further

held that the suit for injunction simpliciter is maintainable. The said decision is of no help to the appellant.

A priori, the appal fails and is dismissed. There shall be no order as to costs.