Madhoram & Sons vs Murlidhar Gupta

The appellant/defendant has preferred this second appeal being aggrieved by the judgment and decree dated 12.02.2018 passed by II Additional District Judge, Raigarh, District Raigarh (C.G.), in Regular Civil Appeal No.45/2017, whereby the appellate Court set-aside the judgment and decree dated 13.10.2017 passed by II Civil Judge, Class One, Raigarh, in Civil Suit No.280-A/2004 and decreed the suit of the plaintiff/respondent herein for possession.

Brief facts of the case, as projected by the appellant/defendant, for proper adjudication of the case, are that the plaintiff/respondent herein filed a suit for eviction and recovery of rent against appellant/defendant herein before the learned trial Court on this ground that House No.84(G) (old No.137/4), Ward No.15 (Old Ward No.17) situated at Sevakunj Road, Raigarh, was given on rent to the appellant/defendant at the rate of Rs.60/- per month. The aforesaid property was formerly the property of the joint Hindu family of the Plaintiff, whose Karta was Mr. Krishna Kumar Gupta. Mr. Krishna Kumar Gupta executed a registered sale deed dated 11.03.1996 in favour of Plaintiff/respondent herein and he was duly given title and ownership of the said suit property, the information of which was also duly given to the defendant firm/appellant herein on 06.04.1996, which was received by them on 10.04.1996. After execution of registered sale deed, the Plaintiff/respondent herein had a bonafide requirement of the suit land for his own use and demanded the vacant possession of suit property but the defendant/appellant herein did not tender the vacant possession of the suit property. Thereafter, a suit being Civil Suit No.49-A/1998 was filed by the plaintiff/respondent herein, which was dismissed on 17.12.2003 as the defendant firm/appellant herein was not made as party in the suit. Thereafter, the Civil Suit No. 280-A/2004 was presented by impleading the defendant/appellant herein a party in the name of his firm. The plaintiff has also prayed for arrears of rent of Rs.2,100/- from 30.04.2001 to 30.03.2004 and claim of Rs.2,250/- from 01.04.2004 till 15.05.2005 and further prayed for damages of Rs.50/- per day from the defendant/appellant herein.

In written statement, the defendant has denied the ownership of Krishna Kumar Gupta and submitted that the suit property is of Gouri Shankar Nande’s deity. Further they stated that the plaintiff/respondent herein has a big house at Chhatamuda and the civil suit was filed only to harass the defendant/appellant herein.

The learned trial Court, after appreciating the oral and documentary evidence, dismissed the civil suit by judgment and decree dated 13.10.2017 on the ground of non joinder of party and non establishment of relation of landlord and tenant. Against this order, the Plaintiff/respondent herein filed Civil Appeal No.45/2017, and the learned Appellate Court below by judgment and decree dated 12.02.2018 set aside the judgment of trial Court and passed the judgment and decree in favour of plaintiff/respondent. Hence, this second appeal filed by the appellant/defendant.

Learned counsel for the defendant/appellant herein submits that in written statement, the defendant has categorically denied the ownership of plaintiff, as such, the relationship of landlord and owner is not established/proved in this case. Learned counsel further submits that a writ petition against the suit property was filed by the State Government before the High Court, thus, the learned trial Court is not competent to hold title of suit premises. He also submits that the finding of First Appellate Court is perverse in the light of aforesaid facts and circumstances of the case. The judgment and decree dated 13.10.2017 of learned trial Court passed in Civil Suit No.280-A/2004 is based on proper appreciation of oral and documentary evidence and in accordance with law, therefore, the finding of learned Appellate Court below is not sustainable at all. Learned counsel for the appellant by filing I.A.No. 03/2018, for taking additional documents on record, I.A.Nos. 06/2022, 07/2022 and I.A.No.08/2022, filed under Order 41 Rule 27 of C.P.C., for taking additional documents on record, submits that the documents are necessary for proper adjudication of the case.

On the other hand, learned counsel for respondent supporting the impugned judgment and decree passed by the learned Appellate Court submits that he has also filed I.A.No.04/2019 under Order 41 Rule 27 of C.P.C. and filed some documents for proper adjudication of the case. In his support, he placed reliance on the decisions of Hon’ble Apex Court in the matter of Sheela and Others Vs. Firm Prahlad Rai Prem Prakash reported in (2002) 3 SCC 375, Boorugu Mahadev and Sons & Another Vs. Sirigiri Narasing Rao & Others reported in (2016) 3 SCC 343, Swadesh Ranjan Sinha Vs. Haradeb Banerjee reported in (1991) 4 SCC 572, Joginder Singh & Anr. Vs. Jogindero (Smt.) & Ors. reported in 1996 7 SCC 555 and M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) Vs. Mahant Suresh Das and Ors. reported in (2020) 1 SCC 1 and order dated 26.11.2015 passed by this Court in F.A. No. 182/2004 in the matter of Dr. Meghraj Vs. Anupam Griha Nirman Sahakari Samiti Maryadit.

Heard learned counsel for both the parties and perused the material available on record.

Both the parties have filed interlocutory applications under Order 41 Rule 27 of C.P.C. as mentioned above with various documents. For ready reference, Order 41 Rule 27 of C.P.C. is reproduced herein as under :-

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

The aforesaid provision of C.P.C. prescribes precondition for taking additional evidence at appellate state. The scope of Order 41 Rule 27 of the CPC is very clear, which states that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that, despite due diligence, they were unable to produce such documents and such documents are necessary to enable the court to render a proper judgment. The admissibility of additional evidence is not dependent on its relevance to the issue at hand, or on whether the applicant had an opportunity to present such evidence at an earlier stage or not. The true test is whether the appellate court can render judgment on the materials before it without considering the additional evidence sought to be adduced. Such a situation would only occur if the court determined that there was an inherent lacuna in the evidence or some other flaw after reviewing it in its present state. The appellate court is therefore only allowed to admit additional evidence in order to fill a lacuna in the existing evidence. The basic principle for admitting additional evidence is that the party requesting it must be able to prove that, despite their best efforts, they were unable to introduce the additional evidence in the initial proceeding.

It is clear from all the documents annexed with the applications filed under Order 41 Rule 27 of CPC that both the parties were in possession of these documents and they did not show any good ground of delay and these documents have been considered by learned trial Court and lower appellate Court while passing the impugned judgment, as such, at this stage, these applications (I.A.No. 03/2018, for taking additional documents on record, I.A.Nos. 06/2022, 07/2022 and I.A.No.08/2022, filed under Order 41 Rule 27 of C.P.C., for taking additional documents on record filed by appellant and I.A.No.04/2019 under Order 41 Rule 27 of C.P.C. filed by respondent) having no merit are liable to be dismissed and are hereby dismissed.

The instant appeal is admitted on the following substantial question of law :

“Whether finding of the lower appellate Court holding that the Defendant is a tenant of the Plaintiff while reversing the finding of the trial Court, is perverse ?”

“Whether finding of the lower appellate Court decreeing the Plaintiff’s claim for eviction on the ground enumerated under Section 12(1)(a) and (e) of the Chhattisgarh Accommodation Control Act, 1961 while reversing of the finding of the trial Court, is perverse ?”

Before the Courts below, both the parties have filed various documents to substantiate their claim over the suit property, and it is clear from all the documents that earlier a litigation was not only pending before the lower Court but also before this Court for the suit property. The learned lower Appellate Court, after minutely appreciating all the document of the parties, decided the appeal on the following questions :-

Ex.P/6 is the copy of judgment dated 31.07.1978 passed by the District Judge, Raigarh. In that case, the learned District Judge arrived at finding that the suit property belongs to Paluram Dhananiya’s joint Hindu family property and declared Ex.D/9 and D/10 as void. Being aggrieved by the judgment dated 30.07.1978, first appeal being F.A. No.203/1978 was preferred before the High Court of Madhya Pradesh at Jabalpur and the High Court of Madhya Pradesh, vide judgment dated 12.10.1982 (Ex.P/7) dismissed the appeal holding that the appellants therein are not entitled to the declaration sought for by them in the suit and their claim have rightly been dismissed. As such, the judgment dated 31.07.1987 was maintained till High Court of M.P.

The litigation with regard to the suit property is pending between both the parties since long and it is an admitted fact that earlier the suit was decided by the District Judge, Raigarh, vide judgment dated 31.07.1978 (Ex.P/6) declaring that the suit property of late Paluram Dhananiya’s joint Hindu family property and also declared Ex.D/9 and D/10 as void. Thereafter, the High Court of Madhya Pradesh, vide judgment dated 12.10.1982, dismissed the appeal and affirmed the judgment and decree of the trial Court. As such, the judgment and decree dated 31.07.1978 has attained finality. The learned lower Appellate Court framed as many as four questions and decided the appeal in favour of plaintiff/respondent herein. The defendant/appellant herein has not claimed ownership of the suit property and he admitted that he is a tenant of suit property and seller Krishna Kumar Gupta executed the sale deed dated 07.03.1996 with the permission of Income Tax Department.

This Court, while dealing with the issue, in the matter of Dr. Meghraj (supra), held in para 14, 15 and 16, which reads as under :-

“14. Indisputably, the first sale deed was registered in favour of the appellant. In the present case, the registered sale deed executed in favour of the appellant was cancelled by unilateral deed of cancellation by the Society. Therefore, in the opinion of this Court, even if the recession of contract was made, it could not have been done unilaterally as has been made in this case without instituting any suit before a court of law. If the contract according to the Society was voidable or terminable as per the agreement contained in the sale deed then in such a case, it was obligatory on the part of Society to take recourse to appropriate legal/statutory proceeding by filing civil suit before the appropriate civil court. The cancellation of sale deed by inhouse unilateral act would certainly against the spirit of section 31 of Specific Relief Act, 1963, which lays down the complete procedure to cancel any registered deed. Further, the Society has failed to place before this Court any statute to show the source of power by which the Society could have unilaterally cancelled a registered deed of sale.

Similar issue had come up before this court in Shyam Kumar Gujrati Vs. Board of Revenue and others decided on 01.09.2014 (supra) wherein it was held that cancellation of registered sale deed can only be done by a decree of civil court. Nothing has been placed on record by the respondent except the case law of Indu Kakkar (supra) to show that the Society had cancelled the sale deed by virtue of power conferred by the statute to cancel sale deed without taking recourse to the remedy as provided under section 31 of the Specific Relief Act through a decree of court of competent jurisdiction. Therefore, according to this court even the sale deed contained voidable or terminable clause in the form of an agreement the same has to be adjudged by the court as would be required under Sections 27 & 31 of the Specific Relief Act 1963.

As has been held in Baldeo Kumar Agrawal Vs. Managing Director, M.P. Rajya Laghu Van Upaj Sahkari Sangh Maryadit reported in AIR 1997 M.P. 147 which has been reiterated in Kusum S. Verma Vs. Pritam Singh Gulati 1998 (1) MPLJ 578 (supra), in enacting section 64 of the Act, the Legislative intent obviously was to provide self-contained dispute resolving mechanism through the hierarchy of original and appellate co-operative Courts. Therefore, the finding of the trial Court that the cancellation of sale deed was legally valid cannot be upheld in view of the statutory provision and the principles reiterated by this Court in W.P.No.1084 of 1999 (Shyam Kumar Gujrati Vs. Board of Revenue). In the result, it is held that the cancellation of sale deed by virtue of unilateral cancellation deed cannot be given effect to as it was done without filing a suit for cancellation of an instrument as provided u/s 31 read with section 27 of the Specific Relief Act. Consequently, the cancellation deed executed by the Society will have no effect at all. Since the cancellation was not done by the decree of Civil Court, therefore, the cancellation cannot be held to be legal and would be nonest in the eyes of law.”

The learned lower appellate Court, after appreciating the material available on record, has rightly decided the issue in favour of the plaintiff/respondent and held that the appellant/defendant has no longer any right to be continue in the suit premises. This finding of the learned appellate Court is based on proper appreciation of oral and documentary evidence.

That apart, other significant questions have also been decided by the learned Appellate Court in favour of the Plaintiff/respondent herein. The appellant/defendant has admitted this fact that he was the tenant of earlier owner and has deposited the rent in Income Tax Office till March, 2003. The Plaintiff/respondent herein is owner of suit property since 07.03.1996 and the appellant/defendant is residing as tenant in the suit property. Thus, the learned Appellate Court below has rightly set aside the finding of learned trial Court and allowed the appeal of Plaintiff/respondent.

The Plaintiff filed the suit on the ground of arrears of rent, bonafide need of residence and nuisance by tenant.

Hon’ble Supreme Court, while dealing with the issue of ownership, in the matter of Boorugu Mahadev (supra), has held in para 21 and 22 as under :-

“21. That apart, we find that the appellants were able to prove their ownership through their predecessor-in-title on the strength of sale deed (Ext.P-6/7) of the suit premises whereas the respondents failed to prove their defence. Indeed, the burden being on them, it was necessary for the respondents to prove that the sale in favour of the appellants’ predecessor-in-title of suit premises was a transaction of mortgage and not an outright sale. Since the respondents did not adduce any documentary or oral evidence to prove their defence, the first appellate Court was justified in allowing the eviction petition. In our view, the evidence adduced by the appellants to prove their title over the suit premises was sufficient to maintain eviction petition against the respondents and it was, therefore, rightly accepted by the first appellate court.

As observed supra, the first appellate court having recorded categorical findings that the relationship of landlord-tenant was proved and secondly, the respondents had committed a willful default in payment of monthly rent and its arrears from 1-6-1987, these findings were binding on the High Court while deciding the revision petition. It was more so when these findings did not suffer without any jurisdictional error which alone would have entitled the High Court to interfere.”

In the light of above discussion and the principle laid down by Hon’ble Supreme Court in the matter of Boorugu Mahadev (supra), the finding recorded by the learned appellate Court below is affirmed and the appeal is liable to be and is hereby dismissed having no merit. The plaintiff is entitled to receive vacant possession of the suit property and the arrears of rent & the same shall be given to him within two months. Parties shall bear their respective costs. Let decree be accordingly drawn.