Devi Singh vs Khan Mohammad

Sanjay Yadav, J—With consent, matter is heard finally.

This appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (for brevity ''CPC'') at the instance of defendants No. 1 and 2, is directed against judgment and decree dated 29.10.2007 passed by Additional Judge to the Court of First Additional District Judge, Khurai District Sagar in Civil Appeal No. 19-A/2007. The appeal, in turn, was against judgment and decree dated 24.9.2005 passed by Civil Judge Class I Khurai in Civil Suit No. 17-A/97, dismissing the suit for possession, mesne profits and permanent injunction.

Suit by the plaintiff was that being owner of the suit land bearing Survey No. 539 Area 1.64 Hectare at Village Kanjiya and has been in peaceful possession thereon, the defendants forcibly wanted to grab the suit land. That, during pendency of the suit, plaintiff amended his plaint to submit inter alia that by order-dated 22.10.1973, he was directed to be recorded as Bhumiswami of 3.91 acre out of Khasra No. 955/1 Total Area 7.00 acres, that the said land was renumbered as Khasra No. 955/3 later renumbered as Khasra No. 539, that defendant no. 1 is the owner of Khasra No. 583 and 988/1, new numbers 499 and 564, that by order-dated 16.4.1981 passed in Ceiling Case, the plaintiff''s title to the suit land was upheld, that the suit land was got demarcated by the plaintiff in 1977-78 and that during the pendency of suit, the defendants have forcibly dispossessed from the suit land in 1992-93. The relief clause of the plaint was also amended seeking relief of recovery of possession of the suit land.

The defendants contested the claim contending inter alia that Thakur Harvanshi was the original owner of the suit land, that on 15.6.1957, defendant no. 1''s brother Damru had purchased the suit land from the power of attorney holder of Thakur Harvanshi by a registered sale deed and had obtained its possession. That, upon death of Damru, defendant no. 1 became owner of the suit land and has been in its possession ever since. That, originally the suit land was part of Khasra No. 955 and was subsequently renumbered as Khasra No. 539 and that in ceiling proceedings against Harvanshi, the sale deed in favour of defendant''s brother has been upheld. Responding to amendment in the plaint, it was stated that plaintiff had illegally got his name mutated over suit land and that the land of the plaintiff is different than the defendants.

Issues were framed on claim and counter claim. The trial Court non-suited the plaintiff, holding that he had failed to prove his ownership and possession over suit property.

In an appeal, the Appellate Court, while allowing the additional documents to be taken on record, viz. the order passed by Naib Tahsildar, Bina in Revenue Case No. 9-A/12 Year 1998-99, the report, field book and map regarding demarcation of suit land, Khasra Khatauni of various years with respect to suit land and the certified copy of the sale deed (Ex.D/1). And, vide order-dated 15.9.2003, while setting aside the judgment and decree, the suit was remanded for retrial with a direction to the trial Court to appoint local commissioner to ascertain the exact location of suit property and the parties were given liberty to adduce additional evidence.

The trial Court dismissed the suit vide judgment and decree dated 21.9.2005.

Again, in an appeal, the Appellate Court while observing that additional evidence which the plaintiffs intends to bring on record having a bearing upon his right over suit property, allowed to take on record Khasra Panchshala for the year 1954-57, Map and Sanshodhan Panjee for the years 1972-77, the application for exchange of land, Khasra panchshala for the year 1999-2003 and last pages of Ex.P/16 and P/17 and remitted the matter to trial Court by setting aside the judgment and decree by impugned order. The legality whereof is being questioned on the ground that the Appellate Court committed illegality and material irregularity in allowing the application under Order 41 Rule 27 CPC for taking additional evidence on record, as the dispute related to title over the suit land and khasra entries has no relevancy, when title is to be established. And that, the documents were of early date and there being no cogent explanation for not filing the same in the trial Court, were wrongly admitted by way of additional evidence. On these grounds, the appellants seek indulgence.

Respondent no. 1, on his turn, supports the impugned judgment and decree, contending that in order to ascertain correct facts and to meet the ends of justice, the Appellate Court was well within its right in taking additional evidence on record and remit the matter to the trial court for a decision afresh after affording opportunity to the parties to lead evidence.

Considered the rival contentions.

As to contention that the additional evidence ought not to have been taken on record, Rule 27 of Order 41 stipulates -

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 Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.

The three conditions either of which must exist before an additional evidence is permitted at appellate stage are - (i) the trial Court had refused to admit evidence though it ought to have been admitted; (ii) the evidence was not available to the party, despite exercise of due diligence (iii) the appellate court required the additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.

In the case at hand, the circumstance spelt out in sub- clause (a) of clause (1) of Rule 27 is not attracted. The reasons which prevailed with the appellate Court which find mention in paragraph 9, 10 and 12 of the impugned judgment, sub-clauses (aa) and (b) are attracted. Appellate Court recorded following reasons, while allowing the additional evidence -

The question as to whether these circumstances are sufficient to permit the additional evidence in a case where on earlier occasions, similar application was allowed and the matter was remitted ? There is no cogent evidence on record as would suggest sufficient cause for not including the documents in question on earlier occasion. It has been held in Shivajirao Nilangekar Patil Vs. Dr Mahesh Madhav Gosavi and Others, AIR 1987 SC 294 : (1986) 1 JT 1071 : (1986) 2 SCALE 977 : (1987) 1 SCC 227 : (1987) 1 SCR 458 : (1987) 1 UJ 88 -

"27.... The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue."

In the case at hand, these elements are conspicuously missing. The exercise of discretion by the Appellate Court in allowing the application under Order 41 Rule 27 CPC cannot be approved and deserves to be and is hereby set aside.

Now coming to the decision of remand, the reasons find mention in paragraph 13, viz. -

Rule 23A of Order 41 CPC envisages that

"23A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the appellate Court shall have the same powers as it has under R. 23.

That, Rule 23 of Order 41 empowers the Appellate Court to direct what issue(s) shall be tried. In case it finds that the same has not been framed and tried though pleadings on record as in the case at hand. In this context, reference can be had of a decision rendered in Dwarka Nath Prasad Atal Vs. Ram Rati Devi, AIR 1980 SC 192 : (1980) 1 SCC 17 : (1979) 11 UJ 730 wherein it is held -

7... It appears that on the other issue involved in the case the appellant, perhaps, desired to lead evidence but that opportunity was denied to him. Since the only question considered by the trial court was one of the jurisdiction, which depended upon the nature and character of the land and since we cannot exclude the possibility that the appellant may have been prejudiced by reason of denial to him of an opportunity to make good his case, it is in the interest of justice to afford him that opportunity.

In the present case, as evident from the findings in paragraph 13 that the trial Court ignored the pleadings and evidence led thereon and did not frame vital issue regarding adverse possession and its consequences. Thus, it was within the powers of the Appellate Court to have remitted the matter by setting aside judgment and decree with a direction to the trial Court to decide on the issue framed.

Consequently, while setting aside the order allowing application under Order 41 Rule 27 CPC, the remand order is upheld.

Appeal is disposed of finally in above terms. Interim order is withdrawn.

Let the suit be decided within a period of three months from the date of communication of this order. No costs.