Chhed Ram and Others vs Budhvantin and Others

Sanjay K. Agrawal, J.—The substantial questions of law formulated and to be answered in this plaintiffs'' second appeal are as under:--

"(1) Whether in a suit for perpetual injunction on the basis of possession title has any impact over it?

(2) Whether admitted transaction of sale-deed can be challenged by strangers on the ground that it was a sale transaction?

(3) Whether without lawfully appreciating the evidence on record, the first appellate Court rejected the finding of possession held by the trial Court?"

The imperative facts required for determination in this appeal are as under:--

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court.]

1.1 Chhed Ram and Bikham, collectively be referred as, plaintiffs filed a suit for permanent injunction against Budhvantin, Khed Ram and Bedram, collectively be referred as, defendants stating inter alia that the plaintiffs'' father Khelan has purchased the scheduled suit property from its erstwhile owner-Hinharam by registered sale deed dated 28-11-1973 after payment of consideration of Rs. 1,000/- and obtained its possession and revenue records were corrected accordingly.

1.2 It is further case of the plaintiffs that their father Khelan died in the year 1995 and after death of their father, they came in possession of the suit property by cultivating the same, which is interfered with by defendants No. 1 to 3, even they are not the legal heirs of Hinharam; Hinharam died leaving behind widow and one daughter, however, defendant No. 5-Parsuram alias Bullu claiming to be the adopted son of Hinharam started interfering with their possession and, therefore, they are entitled for permanent injunction.

1.3 Defendants No. 1 to 3 resisted the suit taking a principal defence that there is no alienation was made by Hinharam in favour of plaintiffs'' favour-- Khelan; and it was admitted that the Hinharam taken loan from Khelan and in lieu of the said loan, the said sale deed was executed as security of the loan advanced and the respondent No. 4 Parsuram was the adopted son of Hinharam.

1.4 Defendant No. 4 Parsuram @ Bullu filed his separate written statement and claimed to be the adopted son and consequently interest in the property.

The Trial Court, by its judgment and decree dated 11-10-2001 passed in Civil Suit No. 49-A/96 decreed the suit finding inter alia that adoption by Hinharam to defendant No. 5 Parsuram �Bullu is not established and plaintiffs'' father purchased the suit property and after his death, the plaintiffs obtained possession and, therefore, the plaintiffs are entitled to decree for recovery of possession.

Defendants preferred first appeal there against. First Appellate Court, by its judgment and decree dated 23-4-2003 passed in Civil Appeal No. 25-A/01, set aside the judgment and decree of the trial Court and dismissed the suit holding inter alia that original sale deed dated 28-11-1973 has not been produced before the trial Court; further held that defendant No. 5 has failed to establish adoption.

During pendency of appeal, original sale deed dated 28-11-1973 has been produced along with application under Order XLI Rule 21 of CPC by the plaintiffs before this Court.

Reply to the said application has been filed by the defendants No. 1 and 4 stating that no reason has been assigned as to why the original sale deed could not be produced before the trial Court as well as before first appellate Court.

Shri Vimlesh Bajpai, learned counsel appearing for the plaintiffs would submit that the first appellate Court has fallen into error in holding that bare suit for permanent injunction is not maintainable on the basis of possession, and in such suit, declaration of title is necessarily to be sought for. He would further submit that none of the defendants were party to the sale deed dated 28-11-1973 and, therefore, the transaction cannot be challenged by the defendants being stranger to the sale deed. He would lastly submit that the sale deed dated 28-11-1973 is necessary for just and proper disposal of the case, and therefore, the application deserves to be allowed and the sale deed dated 28-11-1973 filed along with this application be taken on record.

On the other hand, Shri M.K. Bhaduri, learned counsel appearing for the respondents No. 1 and 4 would submit that the first appellate Court is absolutely and perfectly justified in dismissing the suit of the plaintiffs by holding that original sale deed dated 28-11-1973 has not been produced and merely on the basis of revenue papers, decree for permanent injunction cannot be granted. He would lastly submit that the application under Order XLI Rule 27 of CPC filed by the plaintiffs deserves to be rejected and the defendant No. 4 Parsuram alias Bulu, being the adopted son of Hinharam is entitled to challenge the validity of sale deed.

I have heard learned counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection.

I shall first take up the application filed by the appellants/plaintiffs under Order XLI Rule 27 of the CPC by which original copy of the sale deed dated 28-11-1973 was sought to be produced. It is the case of the plaintiff that he has purchased the suit property by registered sale deed dated 28-11-1973 from one Hinsaram by making payment of Rs. 1,000/-. Defendant had pleaded that the sale transaction is not real sale but it is a sham transaction.

The trial Court decreed the suit whereas the first appellate Court has held that original sale deed dated 28-11-1973 was not produced and the decree was set aside.

Now in appeal sale deed has been produced along with application under Order XLI Rule 27 of CPC.

Order XLI Rule 27(1) of 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--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause."

The Supreme Court in case of Union of India (UOI) Vs. Ibrahim Uddin and Another, has held as under:--

"36. The general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27, CPC enables the appellate Court to take additional evidence in exceptional circumstances. The appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah Vs. A. Seetharama Reddy and Others, , Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, , Soonda Ram and Another Vs. Shri Rameshwarlal and Another, and Syed Abdul Khader Vs. Rami Reddy and Others, .

The appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co., .

Under Order XLI Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide Lala Pancham (supra)]."

The Supreme Court in case of K. Venkataramiah Vs. A. Seetharama Reddy and Others, , has held as under:--

"16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy''s age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "be enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code."

Thus, in the light of the principle laid down in the aforestated decisions, facts of the case in hand are examined, it would appear that the above said sale deed dated 28-11-1973 was not refused to be admitted by the First Appellate Court as document was sought to be produced for the first time before this Court, it is also not the case of appellant/plaintiff that such document was not within their knowledge or on exercise of due diligence, could not be produced. Upon hearing learned counsel appearing for the parties and considering/scrutinizing the entire evidence available on record, it would be apparent that plaintiff''s father has purchased the suit property by registered sale deed dated 28-11-1973 whereas defendants have set up the plea that sale dated 28-11-1973 is not a real sale and it is sham transaction, but transaction is admitted and nature of transaction is in dispute, the trial Court decreed the suit, holding it to be sale, whereas First Appellate Court noticing the non-production of original sale deed by plaintiff, granted the appeal, setting aside the decree granted by the trial Court in favour of plaintiff and this Court having formulated a substantial question of law with respect to sale as mentioned, the production of original sale deed dated 28-11-1973 is absolutely required in the interest of justice to arrive at the correct conclusion in this appeal within the meaning of Order XLI Rule 27(1) of the CPC and, therefore, the application is allowed and the original sale deed dated 28-11-1973 is admitted as additional evidence.

The question would be once the document has been taken as additional evidence what should be the procedure to be followed in the second appeal.

The Supreme Court in case of Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others, , has held that once the document is taken on record as additional evidence, opportunity must be given to the other side to produce the evidence in rebuttal if they so desire. Paras 16 and 17 of the report reads as under:--

"16. The learned Single Judge rightly allowed the appellant''s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order XLI Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendant an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.

The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order XLI Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order XLI Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so."

Thus, in the light of aforesaid decision of the Supreme Court, opportunity has to be given to other side to produce evidence in rebuttal.

Order XLI Rule 28 provides that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the appellate Court.

Order XLI Rule 29 provides that where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.

Thus, in the light of Order XLI Rule 28 of the CPC, the original safe deed dated 28-11-1973 filed before this Court along with the record of both the Courts below is directed to be sent to the first appellate Court. The First appellate Court shall give the defendants'' an opportunity to produce evidence in rebuttal, if they so desire, and then first appellate Court shall take evidence of the parties confining to the legality and validity of the sale deed dated 28-11-1973 and documents if any filed by the defendants, the said Court would complete the hearing/recording evidence etc. latest by 9th May, 2014 and the first appellate Court shall send back the record immediately thereafter.

The parties shall appear before the first appellate Court on 15th April, 2014. The matter be listed for consideration on 14th May, 2014.