Gulab Singh Thakur vs The State of Madhya Pradesh

Sanjay Yadav, J—Heard on admission.

This is plaintiffs'' Second Appeal directed against the Judgment and Decree dated 14.08.2007 in Civil Appeal No. 23-A/2007 affirming the Judgment and Decree dated 31.1.2007 passed in Civil Suit No. 77-A/2006.

The plaintiffs having failed to establish through cogent material evidence to be the owner in possession of suit property bearing Khasra No. 96/2 (New No. 222/1 and 222/2) admeasuring 4.32 acre situated at village Gwadikhurd Tehsil and District Hoshangabad, trial Court non suited the plaintiffs in a suit for declaration of title and permanent injunction on the findings that the suit land is a Government land and the plaintiffs are the encroachers and were penalized by the State. The findings, as evident from paragraph 7 and 8 is on the basis of Plaintiffs own admission.

In paragraph 7 and 8 the trial Court found-

The Appellate Court also vide its well reasoned order concurred with these findings.

Though by filing additional documents vide I.A. No. 5143/2008, an application under Order 41 Rule 27 Code of Civil Procedure, 1908, to establish the plea of adverse possession which has been negatived by both the Courts. The document which the plaintiffs seek leave to produce is an order dated 2.4.1964 by Naib Tehsildar, Hoshangabad on the basis whereof it is urged that the plaintiff acquired Maurousi rights which matured into the rights of Bhumiswami. No cogent explanation however has been given as to why these documents were not produced before the Courts below and the plea not raised. At a Second Appellate Stage the plaintiff cannot be allowed to raise a new plea to overcome the findings arrived by two Courts.

Rule 27 of Order 41 CPC stipulates-

Production of additional evidence in Appellate Court.-

"(1) The parties to an appellate 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 exam med.

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

Dwelling upon scope of extent of judicial discretion by the Appellate Court in entertaining an additional evidence their Lordships in N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, (2001) 6 AD 37 : AIR 2001 SC 2802 : (2001) 6 JT 219 : (2001) 5 SCALE 65 : (2001) 7 SCC 503 : (2001) AIRSCW 2907 : (2001) 5 Supreme 689 were pleased to hold:

"19. Incidentally, the provisions of Order 41 Rule 27 has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal - It does not authorize 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. This Court in Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, AIR 1965 SC 1008 : (1965) 1 SCR 542 has been candid enough to record that the requirement of the high Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In para 9 of the judgment, this Court observed:

... 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."

In view whereof, since no substantial question of law arises for consideration Appeal fails and is dismissed. No costs.