Karnataka High Court
Smt Veena W/O Suresh Palankar vs Ashok S/O Ramachandra Deshpande on 25 July, 2024
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 1833 OF 2006
BETWEEN
SMT. VEENA W/O SURESH PALANKAR
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O GADAG, TAL & DIST: GADAG.
...APPELLANT
(BY SMT. PALLAVI S. PACHCHAPURE,
AND SRI. F.V.PATIL, ADVOCATES)
AND
1. ASHOK RAMACHANDRA DESHAPANDE
AGE: 47 YEARS, OCC: EMPLOYEE,
R/O SAMMASAGI, TAL: HANAGAL,
PRESENT AT HUBBALLI,
DIST: DHARWAD.
2. KRISHNAJI RAMACHANDRA DESHPANDE
SINCE DECEASED BY HIS LRS
2A. SMT. RADHABAI K. DESHAPANDE
W/O KRIDHNAJI R. DESHAPANDE
SINCE DECEASED AND HER LRS
I.E., R2(B) TO R2(G) ARE ALREADY ON RECORD
2B. ANANT K. DESHAPANDE
S/O KRISHNAJI R. DESHAPANDE
AGE: MAJOR,
R/O "CHAKRAVATHI NILAYA"
785/20/1, 4TH MAIN, II CROSS,
'A' BLOCK, DR. RAJKUMAR ROAD,
RAJAJINAGAR, BENGALURU-560010.
2C. SMT. LAXMI Y. KULKARNI
2
W/O YASHAWANTH R. KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: HATTI'S HOUSE (KEB),
BASAVESHWAR NAGAR, HAVERI,
DIST: HAVERI-581110.
2D. SATISH K. DESHAPANDE
S/O KRISHNAJI R. DESHPANDE
AGE: MAJOR,
R/O H.NO.1/176, MIG,
NEAR MARUTHI TEMPLE, GANDHINAGAR,
GOKUL ROAD, HUBBALLI,
DIST: DHARWAD-580009.
2E. SURESH K. DESHAPANDE
S/O KRISHNAJI R. DESHPANDE
AGE: MAJOR, R/O AT POST: SAMMASGI,
TAL: HANAGAL, DIST: HAVERI-581104.
2F. VEENA B. KULKARNI
W/O SRI. B.G. KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: H.NO.37, SANTOSH NAGAR-580009,
HUBBALLI, DIST: DHARWAD.
2G. SNEHA V. KULKARNI
W/O SRI. VINAYAK R. KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O SANTOSH NAGAR-580009,
HUBBALLI, DIST: DHARWAD.
3. MANJUNATH V. RAIKAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O SAMMASAGI, TAL: HANAGAL,
PRESENT AT HUBBALLI, DIST: DHARWAD.
...RESPONDENTS
(SRI. P.H.PAWAR, ADVOCATE FOR R1;
SRI. SHARADA R. SHINDE, ADVOCATE FOR R1
SRI. T. KOTRESHI, ADVOCATE FOR R3;
R2(A) DECEASED;
R2(B) TO R2(G) ARE TREATED AS LRS OF DECEASED R2(A);
R2(B) APPEAL ABATED;
NOTICE TO R2(C) TO (G) ARE SERVED)
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THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 03.04.2006, PASSED BY TGE FAST
TRACK COURT, HAVERI, IN R.A.NO.25/1005, CONFIRMING THE
JUDGMENT AND DECREE DATED 01.02.2005 , PASSED BY CIVIL
JUDGE(JR.DN.), HANGAL, IN O.S.NO.200/2002, AND TO DISMISS THE
SUIT OF THE PLAINTIFF BY ALLOWING THIS APPEAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.07.2024 COMING ON FOR 'PRONOUNCEMENT OF
JUDGEMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present second appeal is filed by defendant No.2 under Section 100 of Code of Civil Procedure, 19081 challenging the judgment and decree dated 03.4.2006 passed in R.A No.25/2005 by the Fast Track Court, Haveri2 and the judgment and decree dated 01.2.2005 passed in O.S No.200/2002 by the Civil Judge (Sr.Dn), Hangal3, whereunder, the suit for declaration that the sale deed dated 18.01.1992, is null and void, and for permanent injunction has been decreed by the Trial Court, which has been affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience. 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'first appellate Court' 4
3. It is the case of the plaintiff that he was a tenant in property bearing R.S No.86/1, measuring 03 acres 30 guntas, situated at Sammasagi village, Hangal taluk4 and the same was being cultivated by the ancestors of the plaintiff. That the plaintiff filed Form No.7 in respect of the suit property, and the Land Tribunal, Hangal has granted occupancy rights in favour of plaintiff and the plaintiff was in possession and enjoyment of the same. That the plaintiff was working at Mahadeva Textile, Hubli. That the defendant No.1 is the elder brother of the plaintiff, defendant No.2 is a purchaser from defendant No.1 and defendant No.3 is a relative of defendant No.2.
4. It is the further case of the plaintiff that he executed a power of attorney in favour of defendant No.1. That since defendant No.1 did not furnish the proper accounts of the suit land and he started to demand amount from the plaintiff for maintenance of the suit land. The plaintiff having knowledge of the illegal activities of defendant No.1, cancelled the power of attorney issued in favour of defendant No.1 on 03.12.1988, by issuing a notice, which was also intimated to Sub-Registrar, Hangal and Special Tahsildar, Hangal. That defendant No.1, 3 Hereinafter referred to as the 'Trial Court' 5 though having no rights, in collusion with defendants No.2 and 3, got fabricated certain documents and created a Sale Deed dated 18.01.1992 pertaining to the suit property. That on the basis of the said Sale Deed, defendants No.2 and 3 have started to obstruct the plaintiff's lawful possession and enjoyment of the suit property. That when the plaintiff made enquiries, he learnt regarding execution of the Sale Deed by defendant No.1 on his behalf in respect of the suit property. That the plaintiff never authorized defendant No.1 to alienate the suit property. Hence, it is contended that defendant No.1 does not get any right to alienate the same and hence, the Sale Deed is illegal and void. Hence, the plaintiff filed a suit for a declaration that the Sale Deed dated 18.1.1992, executed by defendant No.1 in favour of defendant No.2, pertaining to the suit property is illegal, void and not binding on the plaintiff and consequential relief of permanent injunction from obstructing his peaceful possession and enjoyment of the suit property.
5. Defendants No.1 to 3 entered appearance through their counsel before the Trial Court. Defendants No.1 and 2 have filed a written statement denying the case of the plaintiff. The 4 Hereinafter referred to as the 'suit property' 6 defendants have admitted the relationship between the parties and the description of the suit property. It is further contended that defendant No.3 is not a necessary party to the suit. It is admitted that the plaintiff filed Form No.7 claiming occupancy rights pertaining to the suit property. The rest of the averments regarding the plaintiff's possession of the suit property and other averments are denied.
6. It is contended that defendant No.1 never played fraud on the plaintiff and he has discharged his duties on the basis of the power of attorney as per the instructions given by the plaintiff. It is further contended that defendant No.2 is a bonafide purchaser for valuable consideration. It is denied that the Sale Deed dated 18.1.1992 is executed in collusion with defendants No.1 to 3. That the plaintiff himself approached defendant No.2 at Gadag, and offered to sell the suit property, and asked her to contact his power of attorney holder, defendant No.1. Thereafter, defendant No.2 contacted defendant No.1 and sale negotiations were held on 26.08.1987, consequent to which, a sale agreement came into existence, wherein defendant No.1 on behalf of the plaintiff has agreed to sell the suit land for ₹12,000/- and 7 ₹5,000/- was taken as earnest amount and the possession was handed over to defendant No.2.
7. It is further contended that on 18.1.1992, the Sale Deed was executed after converting the suit land into old tenure, and the possession earlier handed over under the agreement of sale was confirmed to defendant No.2 and M.E No.535 was also certified. It is further contended that the plaintiff never resided at Sammasagi village, and since more than 30 years he is residing at Hubli permanently. It is further alleged that the Neelagiri plantations in the suit land are made by defendant No.2, who is in actual possession and enjoyment of the suit property. That defendant No.2 after obtaining permission from the Forest Department, the Neelagiri plantations in the suit property have been cut down and the proceeds have been appropriated by defendant No.2. Hence, defendants No.1 and 2 sought for dismissal of the suit with costs.
8. Defendant No.3 did not file any written statement and did not contest the suit.
9. Consequent to the pleadings of the parties, the Trial Court, framed the following issues and additional issues: 8
i. "Whether the plaintiff proves the sale deed dated 19.02.1992 executed by defendant No.1 in favour of defendant No.2 in respect of the suit property is illegal, void and not binding on the suit property is illegal, void and not binding on him as contended?
ii. Whether the plaintiff proves, he is in lawful possession over the suit property as on the date of suit? iii. Whether plaintiff is entitled for declaration as prayed for?
iv. Whether plaintiff is entitled for injunction as sought?
Addl. Issue No.1: Whether suit is bad for mis- joinder of parties?
Addl. Issue No.2: Whether court fee paid is insufficient?
v. To what order or decree?"
10. The plaintiff was examined as PW.1 and a witness was examined as PW.2. Ex.P1 to Ex.P20 have been marked in evidence. Defendant No.1 was examined as DW.1, defendant No.2 as DW.2 and defendant No.3 as DW.3. Ex.D1 and Ex.D2 have been marked in evidence.
11. The Trial Court, by its judgment and decree dated 01.2.2005, decreed the suit and passed the following order:
"The suit filed by plaintiff is decreed with costs. It is declared that the sale deed dated 18.01.1992 executed by defendant No.1 Krishnaji in favour of 9 defendant No.2 Smt.Veena pertaining to suit property is illegal, void and not binding on plaintiff.
Further consequentially the defendants are hereby restrained by way of permanent injunction from causing any type of obstruction in plaintiff's peaceful possession and enjoyment over the suit property.
Draw a decree accordingly."
12. Being aggrieved, defendant No.2 preferred R.A No.25/2005. The plaintiff entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
i. "Whether the plaintiff proves sale deed dated 18.01.1992 executed by defendant No.1 in favour of defendant-2 in respect of suit property is illegal, void and not binding on him?
ii. Whether the plaintiff proves his lawful possession over the suit property?
iii. Whether the trial court committed error in decreeing the plaintiff's suit?
iv. Whether the impugned judgment calls for interference?
v. What order?"
13. The First Appellate Court, by its judgment dated 03.04.2006, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
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14. This Court, vide order dated 01.4.2009, admitted the above appeal and framed the following substantial questions of law:
i. "Whether the orders passed by the court below are justified in law in view of the fact that the General Powers of Attorney were executed in the years 1983 and 1984?
ii. Whether a notice by itself constitutes termination?"
15. In the above appeal, the appellant has filed the following applications:
i. I.A No.2/2006 was filed under Order 41 Rule 27 read with Section 151 of the CPC, to permit the appellant to produce the document as additional evidence i.e, a Notarized copy of the agreement of sale dated 26.8.87, executed by the GPA holder of the plaintiff in favour of the appellant/defendant No.2.
ii. I.A No.1/2009 was filed under Order 41 Rule 27 read with Section 151 of the CPC, to permit the appellant to produce the additional documents as additional evidence i.e., a Notarized photo copy of the Power of Attorney dated 12.03.1983 executed by the plaintiff in favour of defendant No.1 and a Notarized photo copy of the Power of Attorney dated 20.12.1984, executed by the plaintiff in favour of defendant No.1.11
16. In the affidavit filed in support of I.A No.2/2006, it is deposed by the appellant that she has purchased the land through Agreement of Sale dated 26.8.1987, which culminated in registered Sale Deed dated 18.1.1992. That both the Courts have not accepted her contention on the ground that she has not produced the original Agreement of Sale and power of attorney. It is deposed that she has produced copies of the Agreement of Sale and power of attorney, but the said documents were not considered on the ground that they are copies. It is further deposed that the original Agreement of Sale was misplaced in the house and it was searched recently. That the power of attorney is produced in another case and the certified copy will be produced in due course. That, recently she got the original Agreement of Sale, which is produced along with the application, and that the Agreement of Sale has culminated in the registered Sale Deed dated 18.1.1992.
17. In support of I.A No.1/2009, it is deposed by the appellant that pursuant to the power of attorney executed on 20.12.1984, defendant No.2 has executed the sale deed in favour of the appellant/defendant No.1. That the two power of attorneys 12 dated 12.3.1983 and 12.12.1984 were produced in Criminal Case before the Criminal Court by defendant No.1 and hence, the appellant has not produced the same before the Trial Court. That the two power of attorneys executed by the plaintiff in favour of defendant No.1, who are brothers are produced along with the said application as an additional evidence.
18. The respondent No.1/plaintiff has filed objections to I.A No.1/2009, wherein, it is stated that the appellant has not stated where and in which Criminal Case the power of attorney was produced by defendant No.1 and how she secured the power of attorney after a lapse of more than 25 years and that too a notarized copy is produced and not the original. It is further stated that Order 41 Rule 27 cannot be taken recourse to by the appellant since nothing is stated in the affidavit regarding non- production before the Trial Court or the First Appellate Court. It is further stated that no reasons as required under Order 41 Rule 27 are stated in the affidavit and that the application is filed in a very casual manner. It is further stated that the documents sought to be produced are not original documents and they are notarized documents and nothing prevented the appellant to produce the original copies of the power of attorney and hence, the copies 13 sought to be produced along with the application are in-admissible in evidence and they cannot be looked into. It is further stated that no reasons have been assigned, as to why these copies were not produced either before the Trial Court or before the First Appellate Court, and how the appellant has secured notarized copies and from whose custody. That Order 41 Rule 27 of the CPC requires production of original documents as additional evidence and not notarized copies. Hence, respondent No.1 has sought for dismissal of the application.
19. Learned counsel for the appellant during the course of arguments has filed a memo along with typed copies of the power of attorney dated 12.12.1984.
20. Learned counsel for the appellant, Smt.Pallavi Pacchapure vehemently contends that both the Courts have recorded the findings that since the power of attorney and Agreement of Sale have not been produced the suit has been decreed. That since notarized copies of power of attorney are produced along with I.A No.2/2006 and copy of the Agreement of Sale is produced along with I.A No.1/2009, the said applications are required to be allowed and the documents are required to be taken on record as additional evidence. It is further contended 14 that if the said documents are looked into, it is clear that, the plaintiff has authorized defendant No.1 and consequent to the said authorization, the Sale Deed dated 18.1.1992 has been executed. That the plaintiff does not deny that he had executed a power of attorney in favour of defendant No.1. That, the plaintiff pleads regarding a power of attorney given to defendant No.1. However, it is the case of the plaintiff that the said power of attorney has been revoked by issuing a legal notice dated 03.12.1988 (Ex.P10). That, it is the consistent case of the defendants that no notice has been served on the defendant No.1, revoking the power of attorney. Hence, she seeks for allowing of the applications as well as the appeal. Learned counsel, in support of the contentions relies on the judgment of a Co-ordinate Bench of this Court in the case of Sri. Raghavendra Swamy Mutt v/s Uttaradi Mutt5.
21. Per contra, learned counsel Sri.Vinod.S.Pawar, representing the respondent No.1/plaintiff submits that along with the applications, only copies of the power of attorneys have been furnished and the originals have not been furnished. Hence, it is contended that the applications are liable to be rejected. It is further contended that the appellant has not stated as to why the 5 2017 SCC Online KAR 3553 15 said copies could not have been produced earlier before the Trial Court or the First Appellate Court. It is further contended that both the Courts having recorded concurrent findings that the defendants have not even produced the power of attorneys, the said concurrent findings ought not to be interfered with by this Court in the present second appeal. Hence, he seeks for dismissal of the applications as well as the appeal. In support of his contention, he relies on the judgment of a Co-ordinate Bench of this court in the case of Gabriel Bhaskarappa Kuri and others vs The United Basel Mission Church in India Trust Association and Others6
22. In addition to the substantial questions of law i.e., framed vide order dated 01.4.2009, it is further necessary to consider as to "whether the appellants have made out any grounds to allow I.A Nos.1/2009 and 2/2006?"
23. Before noticing the contentions put forth by both the learned counsels, it is relevant to notice the findings recorded by both the Courts. The Trial Court has recorded the following findings:
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ILR 2007 KAR 773 16 i. It is the case of the plaintiff that he has given power of attorney in favour of defendant No.1 only for managing the suit property and that he subsequently cancelled it by issuing notice on 03.12.1988. On the contrary, the defendants contended that the defendant No.1, as power of attorney holder, has executed agreement of sale on 26.8.1987, in favour of defendant No.2 and after converting the suit land into old tenure, the Sale Deed was executed for a valuable consideration of Rs.12,000/-;
ii. It is an admitted fact that the plaintiff has submitted Form No.7 pertaining to the suit property, as is evident from the order of the Land Tribunal (Ex.P2). PW.1 has examined himself and deposed regarding execution of the power of attorney for management of the suit property. He has denied execution of the power of attorney in favour of defendant No.1 for alienation of the suit land. PW.1 is cross-examined at length, but nothing has been elicited to impeach his evidence; 17 iii. PW.2 is one of the witnesses examined on behalf of the plaintiff to prove that he is in possession of the suit property. PW.2 has claimed that he is owning land on the northern side of suit property and specifically deposed that the plaintiff is in possession of the suit property and he has planted Neelagiri plantations. PW.2 has been cross- examined at length, but nothing has been elicited to impeach his evidence;
iv. Defendant No.1 is examined as DW.1, and he has deposed that the plaintiff has executed two power of attorneys in his favour. He has also deposed regarding conversion of the suit land, and the alienation on the basis of the agreement of sale dated 26.8.1987. He has further stated that the plaintiff has never cancelled the power of attorney deeds and he has no knowledge regarding cancellation of the power of attorneys. He has denied that the plaintiff has executed power of attorney in his favour only for management of suit land and he has not authorized to alienate the suit 18 land. Further in cross-examination dated 17.11.2004, he has stated that both the power of attorneys executed by the plaintiff are in his possession and that he has produced the same in different proceedings. But pleads ignorance regarding those proceedings. DW.1 is unable to say in what proceedings he has produced the power of attorney deeds;
v. Defendant No.2 was examined as DW.2 and she has claimed that defendant No.1 as P.A holder has executed agreement of sale in the year 1987 and on 18.1.1992 executed a regular Sale Deed. She has also claimed that she has verified all the documents pertaining to the suit property. That prior to purchase, contacted the plaintiff and as per his instructions she has dealt with defendant No.1. However, in the cross-examination, she deposes that she does not know anything and all the transactions were done on her behalf by her father-in-law Nagesh Palankar. She has further stated in her cross-examination that after 1987 19 and before 1992, when she had been to Sammasagi, she met the plaintiff, but she did not demand for execution of the Sale Deed. She has also admitted in her cross-examination at para No.6 that power of attorney executed by plaintiff in favour of defendant No.1 was cancelled on 03.12.1988. She did not say as to whether she had knowledge of this cancellation of power of attorney, prior to execution of the Sale Deed; vi. Defendant No.1 has filed a written statement, but defendant No.2 did not file written statement initially and she has filed her written statement on 04.2.2004 after a lapse of nearly 12 years after payment of heavy costs. This conduct on the part of defendant No.2 creates doubt in the mind of the Court.
vii. Defendant No.3 was examined as DW.3. He has deposed regarding execution of the agreement of sale and Sale Deed in favour of defendant No.2 by defendant No.1 as a P.A holder and possession of defendant No.2. He further claimed that he was 20 managing the affairs of suit land on behalf of defendant No.2. In the cross-examination, DW.3 has deposed that the agreement of sale executed by defendant No.1 is in the custody of the father- in-law of defendant No.2-Nagesh Palankar, but the said document is not produced. In the cross- examination, it is further stated that it is a registered power of attorney;
viii. The plaintiff has produced copy of the legal notice issued to defendant No.1 regarding cancellation of power of attorney and it is marked as Ex.P10. Ex.P12 and Ex.P13 are the acknowledgements of Special Tahsildar and Sub-Registrar, Hangal. Ex.P11 is a postal receipt for having sent the notice to defendant No.1. No documents or acknowledgements are produced by the plaintiff to prove that it is duly served;
ix. The plaintiff has disputed that he has authorized defendant No.1 for alienation of the suit property and power of attorney is only in respect of management of suit property. DW.1 admits that 21 he is in possession of power of attorney and claimed that the plaintiff has executed two power of attorney deeds and he has produced them in other proceedings;
x. When documentary evidence is available, oral evidence does not carry any weight;
xi. Power of attorney would have been the best document to state as to what authority was given by plaintiff to defendant No.1 regarding transactions pertaining to the suit property; xii. The plaintiff specifically disputed the authority of alienation and defendant No.1 has failed to produce the power of attorney, though he is in possession of said document. No explanation is forthcoming for non-production of power of attorney by defendant No.1. Hence, the defendants have withheld the material documents which are in their custody and as such adverse interference has to be drawn against defendants; xiii. From Ex.P10 to Ex.P13, it is evident that, the power of attorney was cancelled by issuing notice 22 on 03.12.1988. The defendant has alleged that on the basis of the power of attorney, agreement of sale was executed on 26.8.1987. Defendants No.1 and 3 have admitted execution of the agreement of sale and asserted the facts specifically. But it is important to note that none of the attesting witnesses of the said agreement of sale were examined and the said documents i.e., agreement of sale has also not been produced by the defendants;
xiv. No explanation is offered by defendants for non- production of sale agreement as well as the power of attorney;
xv. When there is no authority for defendant No.1 to alienate the suit property, and the defendant No.2 did not take copy of power of attorney to safeguard her interest on execution of Sale Deed, the sale itself becomes null and void and it is not binding on the plaintiff;
xvi. From Ex.P3, it is evident that, for the year 1986- 87 Neelagiri plantations are recorded. From 23 Ex.P16, it is evident that, Neelagiri plantations were shown in the year 1991-92. Hence, prior to 1986-87, the defendant No.2 was not in possession of the suit property as per her claim. That itself disclose that Neelagiri plantations in the suit land was not raised by defendant No.2;
xvii. The defendant No.2 has contended in her written statement that she has uprooted after obtaining permission from the competent authority, but no such permission is produced before the Court. As such, defendant No.2 has failed to prove her possession over the suit property;
xviii. On the contrary it is evident that the plaintiff is in possession and enjoyment of the suit property.
24. The First Appellate Court has affirmed the findings of the Trial Court and has held that due to non-production of power of attorney, the material evidence is withheld and hence, adverse inference was required to be drawn under Section 114 of the Indian Evidence Act, 18727. It is further held that no explanation is forthcoming as to why defendant No.1 did not produce the 24 power of attorney. It is further held that the evidence of DW.3 that the power of attorney was a registered one, falsifies the case of defendant No.2. The First Appellate Court has recorded a finding that the defendant No.1 has not discharged the burden that he was authorized to alienate the suit land under the said power of attorney deeds.
25. It is forthcoming from the aforementioned that although the defendant No.1 has claimed that the power of attorneys are in his possession, the same have not been produced either before the Trial Court or before the First Appellate Court. Further it has been claimed by the defendants that the power of attorney has been produced in a Criminal Case and in some other proceedings. As rightly held by both the Courts, the defendants have not stated as to in which proceedings the said power of attorney has been produced.
26. In the affidavit, filed in support of I.A No.1/2009, it is deposed by the appellant that as the power of attorneys were produced in a Criminal Case by defendant No.1, the appellant has not produced the same before the Trial Court. However, it is relevant to note that along with the application only photocopies 7 Hereinafter referred to as the 'Evidence Act' 25 of two documents have been produced claiming the same to be notarised photocopies of power of attorney. The said documents are practically not readable.
27. It is sought to be contended by the learned counsel for the appellant that there is a seal of the Executive Magistrate, Hangal and hence, it is required to be inferred that the same were produced in some other proceedings. The said submission will not aid the case of the appellant as no details of any proceedings are forthcoming from any attestation made in the copies of the said documents produced.
28. The defendant No.1 has not produced the originals of the power of attorneys, on the basis of which, he claims that the plaintiff has authorized him to alienate the suit property. Further, even at this belated stage, the appellant has merely produced photocopies of the said documents. No explanation has been afforded as to why even the photocopies could not be produced before the Trial Court or the First Appellate Court. It is further relevant to note that in I.A No.2/2006 the appellant has sought to produce a notarized copy of the agreement of sale. It is submitted on behalf of learned counsel for the appellant that the originals of 26 the said documents are available and the same would be filed in the Registry.
29. The relevant documents to be considered are the power of attorneys on the basis of which it is contended by defendant No.1 that he has executed the Agreement of Sale dated 26.8.1987, as well as the registered Sale Deed dated 18.1.1992 (Ex.P14) in favour of defendant No.2. In this context, as noticed above, it is the contention of the plaintiff that he has executed a power of attorney in favour of defendant No.1 only for the purpose of managing the suit property, while it is the contention of defendant No.1 that defendant No.1 was authorized to alienate the suit property and hence, he has executed the Agreement of Sale dated 26.8.1987 and Sale Deed dated 18.1.1992 (Ex.P14) in favour of defendant No.2. Hence, it was incumbent on the defendants to adequately prove the power of attorney authorising the defendant No.1 to alienate the suit property.
30. In the present case although it was the specific contention of defendant No.1 before the Trial Court that the power of attorneys are in his custody and he has produced the same in some other proceedings, neither it has been stated as to in which proceedings he has produced the said power of attorney nor the 27 original of the said power of attorney is produced till date. The feeble attempt of appellant/defendant No.2 in producing photocopies of the power of attorneys along with I.A No.1/2006 will in no manner aid the case of the appellant having regard to the fact that the respondent No.1/plaintiff has specifically contended that the power of attorney executed by him in favour of defendant No.1 was only for managing the suit property.
31. In this context it is relevant to notice Order 41 Rule 27 of the CPC which reads as follows:
"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 28 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."
32. A Co-ordinate Bench of this Court in the case of Sri. Raghavendra Swamy Mutt v/s Uttaradi Mutt5 has noticed the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin8, wherein it has been held as follows:
"49. An application under Order XLI Rule 27 CPC 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 8 (2012) 8 SCC 148 29 the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court."
(emphasis supplied)
33. A co-ordinate Bench of this Court in the case of Gabriel Bhaskarappa Kuri and others vs The United Basel Mission Church in India Trust Association and Others6 relied upon by the learned counsel for respondents considering the scope and applicability of Order 41 Rule 27 of CPC held as follows:
5. A perusal of the provisions shows the Code specifically provides for production of additional evidence in Appellate Court. However, the opening words of the provision are couched with negative words. It declares that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. This legislative intent has to be kept in mind. It is in the nature of a command, coughed in a negative form, declaring that the parties have no right to produce additional evidence in the appellate Court. That is the rule, However, as an exception, the provision sets out under what circumstances additional evidence could be produced in the appellate Court. Therefore, the production of additional evidence in appellate Court has to be strictly construed. This power so conferred upon the Court by the Code ought to be very sparingly exercised. While exercising such power it is necessary for the Appellate Courts to keep in mind the amendment to the Code of Civil Procedure brought about in the year 2002. Now, even in the Trial Court the parties have to produce the documents on which they rely on, for their claim or the defence along with the pleadings. Thereafter documents shall not, without the leave of the Court be received in evidence at the hearing of the suit. Further, the Court mandates under Order 13 Rule 1 that all the documents shall be 30 produced on or before the settlement of issues. If anything remains to be produced, they have to be produced along with the affidavit which is by way of examination in chief. Therefore, the concept of showing a good cause for not producing the documents earlier has been given a complete go by.
Unless the document is relevant to the matter in issue, without the leave of the Court, the same cannot be produced, once the opportunity to produce the same is not availed of by the parties. In that context when production of documents at a later stage in the suit itself is very much restricted, in appeal it cannot be allowed as a matter of course even though these provisions are not amended by the said Amendment Act. Unless the party makes out a case as contemplated under Order 41 Rule 27 CPC the Court cannot admit documents. While exercising such power, the Court shall comply with the requirement of law as contained in sub-rule (2) of Rule 27 and Rule
29. (emphasis supplied)
34. Rule 27 of Order 41 of the CPC specifically mandates that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary. Further, the three scenarios, where the Appellate Court may allow the evidence to be produced is:
i. If the Trial Court or Appellate Court has refused to admit evidence which ought to have been admitted;
OR ii. The party seeking to produce additional evidence establishes that, notwithstanding exercise of due diligence, such evidence was not within his knowledge or could not after exercise of due diligence be produced by him in the proceedings appealed against;31
OR iii. If the Appellate Court requires the documents to enable it to pronounce judgment or for any other substantial cause.
35. It is the vehement contention of the learned counsel for the appellant that "substantial cause" being one of the considerations and the basis of the defence of the defendants being that the defendant No.1 was authorized by the plaintiff by the power of attorney, it is necessary for the Court to allow the interim application and permit production of the additional evidence. In the present case, in the affidavit filed in support of the application, the deponent has merely stated that since the power of attorney was produced before the Criminal Court by respondent No.2/defendant No.1, the appellant has not produced the same before the Trial Court. In this context, it is relevant to note that the documents produced along with the application are only photocopies and not the originals. There is no explanation by the appellant as to why even the photocopies were not produced before the Trial Court or the First Appellate Court. Although the defendant No.1 has admitted in the cross-examination that the 32 original power of attorney is in his custody, till date the same has not been produced.
36. The said power of attorney being disputed and keenly contested by the plaintiff, at the second Appellate Court, it would be detrimental to allow the photocopies to be produced without any explanation by the appellant as to why only photocopies are being produced at the 2nd Appellate stage.
37. In view of the aforementioned, the appellant has not made out any ground for allowing of the applications and hence, I.A No.2/2006 and I.A No.1/2009 are liable to be rejected.
38. In view of the concurrent findings recorded by both the Courts, having regard to the fact that, the defendant No.1 has not demonstrated that he has been authorized by plaintiff to alienate the suit property and the appellant having failed to demonstrate that the said concurrent findings have been recorded without reference to any specific, oral or documentary evidence on record, the substantial questions of law framed by this Court are answered in the negative.
39. Hence, the following:
ORDER i. I.A Nos.2/2006 and 1/2009 are dismissed.33
ii. The above appeal is dismissed.
iii. The judgment and decree dated 01.2.2005 passed in O.S No.200/2002 by the Civil Judge (Sr.Dn), Hangal, as affirmed by the judgment dated 03.4.2006 passed in R.A No.25/2005 by the learned Fast Court, Haveri, are confirmed.
iv. The parties to bear their respective costs.
Sd/-
JUDGE PMP/ BS