Hrishikesh Mahato vs Handu Singh Sardar & Ors

The plaintiffs/appellants filed the instant appeal challenging the judgment and decree dated December 21, 2012 passed by the learned Civil Judge (Senior Division), Purulia in Money Suit No. 19 of 2017 by which the suit was dismissed. The aforesaid Money Suit was filed for recovery of the price of 800 Sonajhuri trees which was wrongfully and illegally removed by the defendants.

According to the plaintiffs/appellants they acquired the right, title and interest in respect of the plot of land described in schedule 1 to the plaint on the strength of a registered deed of sale dated August 30, 1974 and subsequently, by another deed from the predecessors-in-interest of the defendants. It is specifically stated in the plaint that such land was sold with definite boundaries and after execution and registration thereof the predecessors-in-interest of the plaintiffs were put in possession. The plaintiffs claimed to have planted 2000 number of Sonajhuri trees out of which 1900 tress were grown after due nourishment and maintenance by the plaintiffs. It is stated in the plaint that the market value of each such tree is Rs.281/- and, therefore, the plaintiffs are entitled to a sum of Rs.2,80,000/- from the defendants.

The defendants contested the said suit by not only denying the title of the plaintiffs in the property but also the possession. It is categorically stated in the written-statement that the predecessors-in-interest of the defendants never divested their right, title and interest in respect of the land described in schedule 1 to the plaint at any point of time nor the possession was handed over to the plaintiffs. The defendants assert their possession in respect of the said land and further stated that they have planted various tress and also cultivated the land and enjoyed and utilized the usufruct therefrom.

The parties went to trial and several documents relating to title as well as the complaints having lodged by the plaintiffs for such illegal and wrongful acts by the defendants were produced. What we find from the lower court record brought before us that all such documents were marked exhibits without objection. However, the trial Court dismissed the suit as the plaintiffs failed to prove not only the plantation of such trees at the suit plot but have further failed to adduce any evidence in support of the price of such trees at the relevant point of time. However, the trial Court held that the plaintiffs proved their title in respect of the property described in schedule 1 to the plaint but ultimately dismissed the suit as the monetary relief claimed therein cannot be granted.

The learned Advocate appearing for the appellant submits that an application under Order 41 Rule 27 of the Code of Civil Procedure has been filed in the instant appeal for production of additional evidence. According to the learned Advocate appearing on behalf of the appellant, the documents sought to be produced as additional evidence would throw light on the act of the misdemeanor of the defendants in removing the trees from the land of the appellants and the price thereof. It is stated in paragraph 2 of the said plaint that the appellants while having a consultation with the learned Advocate, was advised that in absence of all these documents which are vital and necessary for the purpose of claiming damages, are produced as additional evidence, the findings recorded by the trial Court cannot be assailed. It is further stated that the appellant being an illiterate person and belonging to the Scheduled Tribe community was ignorant of the relevant provisions of the law and acted bona fide on the advise of the learned Advocate conducting the suit in the trial Court.

Before we make any comment on the documents sought to be produced as additional evidence it would be profitable to recapitulate the provisions contained under Order 41 Rule 27 of the Code of Civil Procedure which runs 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 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

(a) 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

From the reading of the aforesaid provisions what is gathered therefrom is that the parties to an appeal shall not be entitled to produce additional evidence both oral and documentary, unless the provisions enumerated in clauses therein are satisfied. Admittedly the appellant did not produce those documents before the trial Court and, therefore, clause (a) of the said provisions has no manner of application. Clause (aa) of the said provision postulates due diligence of the parties to produce additional evidence that despite such exercise such evidence was not within the knowledge or could not be produced at the time of passing the decree. There is no averment relating to due diligence appearing in the said plaint. The only ground which is assigned there is that in course of a consultation with the learned Advocate conducting the appeal before this court, he opined that such documents are necessary to be brought on record as additional evidence and secondly the plaintiffs/ appellants belonging to the Scheduled Tribe community being unaware of the nuances of law acted bona fide on the advise of the learned Advocate who conducted the suit in the trial court. There is no whisper in the said application when such fact was discovered and/or were known to the plaintiffs/appellants or such documents were not within their knowledge despite an honest exercise being made to discover the same. So far as clause (b) of the said provision is concerned it gives discretion to the appellate court to permit such additional evidence provided such documents are required enabling the court to pronounce the judgment. The appellate Court may also permit the documents to be received as additional evidence provided it is satisfied that apart from the same there are other substantial clauses necessitating such documents to be taken on record. For the limited purpose, whether such documents are required for pronouncement of the judgment, he produced the photocopies of such documents, which are annexed with the instant application.

We do not find these documents can throw any light on the core issue, which is involved in the said suit. Furthermore, mere expressing an opinion by the Advocate conducting the appeal when such documents was in possession of the appellant all throughout, does not invite the appellate court to allow such party to adduce additional evidence. If the documents are not pointed to a core issue involved in the suit nor the appellate court feels that it is vital for the purpose of pronouncement of judgment, the appellate court should not permit the party to adduce additional evidence and reopen an issue. The expression "or for any other substantial cause" appearing in the clause (b) to Order 41 Rule 27 of the Code, cannot be interpreted to whittle down or done away with the earlier clauses but must be in relation thereto. We, therefore, do not find that the application for additional evidence should be allowed. The same is hereby rejected.

Reverting back to the judgment passed by the trial court it is categorically held that the plaintiffs have to produce an iota or piece of evidence in support of the plantation of the tree, wrongful removal from the plot of land and the price of such trees at the relevant point. We could find from the evidence adduced on behalf of the plaintiffs that no documentary evidence is produced thereof. The witness of the plaintiffs stated in the cross-examination that neither general diary was lodged on the respective days before the local police station nor he approached the Superintendent of Police, Purulia alleging inaction on the part of the Officer-in-charge of the concerned police station. It is further stated that there is no statement recorded in respect of the trees standing on the suit land. In view of such categorical statement made in the evidence, the trial court held that the plaintiffs have failed to prove not only the existence of the Sonajhuri Trees but also its removal and the price which was prevalent at the relevant point of time.

It is no longer res integra that the plaintiff has to prove his own case and cannot take advantage of the weakness of the defence case. The plaintiffs in the instant case has miserably failed to prove the basic fact, the foundation whereof was laid in the pleading and, therefore, we do not find any infirmity and/or illegality in the impugned judgment. Even if the plaintiffs are found to have right, title and interest in respect of schedule 1 property and such fact having not been challenged by the defendants/ respondents in the instant appeal by filing the cross-objection yet the suit cannot be decreed as the plaintiffs have miserably failed to prove the plantation of the Sonajhuri trees and wrongful removal of the same by the defendants and the price thereof.

The appeal thus fails.

The judgment and decree dated December 21, 2002 passed by the learned Civil Judge (Senior Division), Purulia in Money Suit No. 19 of 2017 is hereby affirmed.

Let the lower court record be sent down to the trial court immediately.