Mahar Singh vs Bilwa Mangal

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 30.9.2008 rendered by the Additional District Judge (II) Kangra at Dharmashala in Civil Appeal No. 17-K/2003.

"Key facts" necessary for the adjudication of this Regular Second Appeal are that appellants-plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as the "defendants" for convenience sake) seeking decree for declaration with consequential relief of permanent injunction and in the alternative decree for possession over the suit land as detailed in the head note of the plaint as per Jamabandi for the year 1988-89. According to the plaintiffs, they were in possession of the suit land prior to creation of mortgage of the suit land as tenant under the mortgagors whereby they have challenged the revenue entries during settlement over the suit land in which they have been shown in possession as tenant under mortgagees. Plaintiffs have acquired proprietary rights by operation of law.

Suit was contested by the defendants. According to defendant No. 1, plaintiffs never paid any rent to defendant No. 1 or her predecessor-in-interest. The suit land was got redeemed by defendant No. 1 in civil suit No. 159/1974 decreed by the learned Senior Sub Judge, Dharamshala on 30.9.1980. Final decree was prepared on 31.7.1991. Possession of the suit land was delivered to defendant No. 1 on 18.9.1992.

Defendants No. 2, 3 and 6 have filed separate written statements.

Replication was filed by the plaintiffs controverting the contents of written statement. Issues were framed by the Sub Judge 1st Class on 17.10.1994. Leaned Sub Judge 1st Class dismissed the suit on 24.12.2002. Plaintiffs filed an appeal against the judgment and decree dated 24.12.2002 before the Additional District Judge (II), Kangra at Dharamshala. He dismissed the same on 30.9.2008. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 20.8.2001.

"Whether the courts below have failed to appreciate evidence on its proper and legal sense and specially has failed to take into consideration the documentary evidence pertaining to the revenue records?

Whether the courts below have failed to take adverse inference of the fact that plaintiff has not examined himself as a witness and has not put himself for cross-examination. Therefore, adverse inference was required to be taken as per the settled law decided in cases (1) Kamla Devi Vs. Dev Raj-R.S.A. No. 531 of 2000 decided on 13.11.2000, (2) Harswaroop Vs. Ramlok Sharma, Civil Revision No. 272 of 1996 decided on 30.5.2000, (3) Gurdev Vs. Gulabo R.S.A. No. 302 of 1992 decided on 24.4.2000 and (4) Vidhyadhar Vs. Manikrao and Another, ?"

Mr. R.K. Gautam, learned Senior Counsel for the appellants, on the basis of the substantial questions of law, has vehemently argued that both the courts below have misconstrued the evidence led by the parties. He has also argued that his clients have never ceased to be tenants after the redemption of the suit land.

Mr. Ajay Sharma, has supported the judgments and decrees passed by both the courts below.

I have heard learned counsel for the parties and have gone through the record carefully.

Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence.

PW-1 Purshotam Chand has deposed that the suit land measuring 16 kanals was cultivated by their predecessor-in-interest and presently the plaintiffs are cultivating the same. Plaintiffs used to pay the rent. Prior to mortgage and even after the mortgage of the suit land, it was being cultivated by the plaintiffs. Neither they were ever ejected nor they have relinquished the suit land. They were not made party when the suit for redemption of the suit land was filed. Plaintiffs came to know about the redemption in June, 1991. In his cross-examination, PW-1 Purshotam Chand has shown his ignorance who inducted their predecessor-in-interest as tenants. According to him, earlier rent was paid to Chaudhary Hardyal. It is denied that the suit land was given to plaintiffs for cultivation by Jagroop Singh. It is stated that they paid rent to Jagroop Singh till 1991. He has also admitted that rent was never paid to defendant No. 1. It is denied that the possession of the suit land was delivered to defendant No. 1 on 18.9.1992. In his cross-examination by the remaining defendants, he could not depose when the land was mortgage.

PW-2 Ran Singh has deposed that earlier the suit land was cultivated by Khoju and Meedha and after their death, plaintiffs were cultivating the suit land. He has never seen the possession of defendants over the suit land. In his cross-examination, he has deposed that he has no knowledge about the mortgage. He has shown his ignorance as to whom the rent was paid.

PW-3 Raj Mal has shown his ignorance about the mortgage of the suit land.

DW-1 Amar Chand has deposed that the suit land was purchased by defendant No. 1 in the year 1965 from Joginder Singh son of Hardayal. Plaintiffs were inducted tenants by Jagroop Singh etc. Suit land was redeemed on 18.9.1992. She was put in possession. It was denied that the suit land was cultivated by the plaintiffs or their predecessor-in-interest.

DW-2 K.S. Pathania has proved copy of application Ex. DW-2/A.

DW-3 Purshottam has deposed that defendant No. 1 was in possession of the suit land. In his cross-examination, he has admitted that earlier suit land was mortgaged with one Jagroop Singh. The possession was delivered on 18.9.1992.

DW-4 Lal Singh has deposed that his father was the owner of the suit land and he had mortgaged this land. The suit land was not given to the tenants by the defendants. The suit land was given for cultivation to plaintiffs by mortgagees.

According to Ex. P-2, plaintiff No. 1 and predecessor-interest of plaintiff were shown in possession of the suit land as tenants under mortgagees. Similar entries have been made in Ex. P-1, Ex. P-6 and Ex. P-9. Perusal of Ex. D-8 also reveals that predecessor-in-interest of the plaintiffs were tenants under the mortgagees. Similar entries were reflected in Ex. D-7 copy of Jamabandi for the year 1953-54, Ex. D-6 jamabandi for the year 1957-58 and also during settlement. The suit land was mortgaged in the year 1926 with Sh. Jagroop Singh etc. The land was redeemed in the year 1991 and the defendants were put in possession in the year 1992. Thereafter, tenancy crated by the mortgagees in favour of the plaintiff would come to an end on the redemption of the suit land by the mortgagor.

This Court in Smt. Kanta Devi Vs. Shri Khushia, has held as under:

"18. Section 2(10) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 defines "land owner" as meaning a person defined as such in the Himachal Pradesh Land Revenue Act, 1953 or the Punjab Land Revenue Act, 1887, as the case may be and shall include the predecessor or successor in interest of the land owner''. The definition of the word "land owner" as contained in section 4(9) of the Himachal Pradesh Land Revenue Act, 1953 as well as in section 3(2) of the Punjab Land Revenue Act, 1887 is practically the same. Both the sections provide that "land owner" does not include a tenant or an assignee of land revenue but does include a person to whom a holding revenue or of a sum recoverable as such an arrear, and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate. This definition, prima facie, does not include a mortgagee. Therefore, a person holding the land as a tenant under the mortgagee cannot be deemed to be a tenant under a landowner. Therefore, the protection which was available to the tenant inducted by the mortgagee in Bhagat Ram''s case (supra), cannot be extended to the defendant in the present case.

Similarly in Prabhu Vs. Ramdev and Others, , the protection to the tenant inducted by the mortgagee was extended by virtue of section 15 of the Rajasthan Tenancy Act, 1955, which had come into force before the redemption of the mortgage by the mortgagor The statutory benefit was thus extended to the tenant inducted by the mortgagee in view of the relevant provisions of the Rajasthan Tenancy Act, 1955 and it was held that the tenant inducted by the mortgagee would become a tenant under the owner-mortgagor after the redemption of the mortgage. No such statutory protection, as stated above, is available to the defendant in the present case under any provision of the law as enforce at the time of the redemption of the mortgage."

C.M.P. No. 100/2010

Appellants have also filed an application under Order 41 Rule 27 Code of Civil Procedure, plaintiff has filed the detailed reply to the same. Appellants wanted to produce on record copy of proceedings conducted by Land Reforms Officer, Kangra dealing with form No. L.R.-V under the H.P. Land Reforms Act and Rules. According to the appellants, plaintiff has admitted that defendant is tenant and had applied for redemption of land under H.P. Tenancy and Land Reforms Act. The Civil Suit was instituted on 2.3.1993 and the application filed is belated. These documents are not necessary for the adjudication of the matter.

Their Lordships of the Hon''ble Supreme Court in Union of India (UOI) Vs. Ibrahim Uddin and Another, have held that party guilty of remissness in not producing evidence in trial court cannot be allowed to produce it in appellate court. There must be satisfactory reasons for non-production of the evidence in trial court for seeking production thereof in appellate court. Their Lordships have 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 C.P.C. 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, provision does not apply, when on the basis of 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 C.P.C., 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 & Ors. (supra)].

It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. Vs. Manbodhan Lal Srivastava, ; and S. Rajagopal Vs. C.M. Armugam and Others, ).

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.

Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.

The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.

It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa Vs. Dhaniram Luhar, ; State of Uttaranchal and Another Vs. Sunil Kumar Singh Negi, ; The Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity and Others, ; and Sant Lal Gupta and Others Vs. Modern Co-operative Group Housing Society Ltd. and Others, .

In The Land Acquisition Officer, City Improvement Trust Board Vs. H. Narayanaiah and Others, , while dealing with the issue, a three judge Bench of this Court held as under:

"We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence."

(Emphasis added)

A similar view has been reiterated by this Court in Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, .

A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:

"It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence.... The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."

(Emphasis added)

In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact-situation, the order allowing such application did not vitiate for want of reasons.

Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed.

To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

Stage of Consideration:

An application under Order XLI Rule 27 C.P.C. is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjun Singh alias Puran Vs. Kartar Singh and others, ; and Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, ."

Therefore, the present application is dismissed.

The substantial questions of law are answered accordingly.

Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application, if any, also stands disposed of. No costs.