Bombay High Court
Shri Harichandra Vithoba ... vs 1. Shri Jagdish Shankar Bhovar And ... on 10 October, 2022
Bench: Nitin W. Sambre
Digitally signed by
SMITA SMITA JOHNSON
JOHNSON GONSALVES
GONSALVES Date: 2022.10.13
14:11:13 +0530
sg 2.sa164-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.164 OF 2012
WITH
CIVIL APPLICATION NO.397 OF 2009
IN
SECOND APPEAL NO.164 OF 2012
Shri. Harichandra Vithoba Pednekar ...Appellant
vs.
Shri Jagdish Shankar Bhovar And Ors. ...Respondents
....
Mr. Valmiky H. Narvekar, a/w. Mr. M.N. Gawankar, for the Appellant.
Mr. A.S. Khandeparkar, a/w. Mr. Saurabh Mittal and Mr. Apoorva
Khandeparkar, i/b. Khandeparkar & Associates, for the Respondents.
....
CORAM : NITIN W. SAMBRE, J.
DATED : 10 OCTOBER, 2022
P.C.:
This second appeal is preferred by the original plaintiff.
2. Regular Civil Suit No.62 of 2002 is filed on 28 August
2002 seeking declaration of ownership and injunction. The suit came
to be decreed on 29 September 2005 by judgment and order delivered
by Joint Civil Judge, Junior Division, Kudal. The Respondents/
defendants felt aggrieved and preferred Regular Civil Appeal No.181 of
2005 before District Judge-I, Sindhudurg at Oras. The appeal came to
be allowed by impugned judgment and order dated 22 January 2008.
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As such, this second appeal.
3. The facts necessary for deciding the present second appeal
are as under:
Suit property consist of agricultural land Survey No.43,
Hissa No.12, which allegedly was given Gat No.561 after the
consolidation scheme at village Sarambal was implemented.
4. It is the case of the Appellant that he has perfected his title
to the suit property vide purchase deed dated 6 June 1905 (Exhibit 64).
Exhibit 64 is a purchase deed in Modi lipi and the translation of the
same is given in Exhibit 65 in Marathi.
5. Alleging that the Respondents/defendants are interfering
with the settled possession of the Appellant, the cause was brought
before the trial court.
6. Amongst other, the claim put forth by the Appellant so as to
establish his case is, plaintiff nos. 1 and 2 interse, based on respective
titles, agitated their claims over the suit property in Regular Civil Suit
No.54 of 1912-13 before the Court of Munsif at Kudal. The said suit
was in relation to the very same property as that of in this appeal which
was decided on March 17, 1913. It is claimed that once the Appellant
has perfected very title not only by the sale deed Exhibit 64 but also by
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the judgment and decree in aforesaid suit, being Regular Civil Suit
No.62 of 2012, the Respondents were not having any right, title to
disturb the possession.
7. The Respondents disputed the claim of the Appellant based
on deed at Exhibit 64. The title document is not complete one, as the
said title document does not contain the description of the suit property.
It is claimed that a certified copy of the title document dated 6 June
1905 was produced before the Court, based on which the claim was
registered vide Exhibit 21, which was permitted to be produced before
the record of the appellate court.
8. The trial court accepted the claim put-forth by the
Appellant of having title over the suit property and decreed the suit.
The first appellate court, in exercise of the powers under Section 96 of
the CPC, reversed the decree based on Exhibit 21, the certified copy of
the Exhibit 64, title document of the Appellant/plaintiff.
9. The Counsel for the Appellant has made two-fold
submissions:
(a) The appellate court committed an error of law in not following
the very procedure laid down under Order 41 Rule 27 of the
CPC while permitting the production and analysis of the
certified copy of the document title deed, i.e. Exhibit 64.
(b) His next contention is, the appellate court has failed to consider
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the effect of decree delivered in Regular Civil Suit No.54 of
1912-13 which was interse between the plaintiffs.
(c) His next contentions is, title of the Appellant over the suit
property was never disputed in the written statement and as
such the decree goes beyond the pleadings.
10. Mr. Khandeparkar, Counsel appearing for the Respondents/
defendants, would oppose the prayer, as, according to him, all these
issues are duly taken care of by the appellate court. According to him,
the detail reading of the appellate court's judgment will give correct
impression as to the failure of the Appellant to establish his case of not
having title over the suit property.
11. I have appreciated the submissions.
12. The fact remains that the suit for declaration of
title/possession and order of injunction is based on a title deed Exhibit
64 and 65. The said title deed is of 6 June 1905. The said document,
as is rightly so claimed by the Counsel for the Appellant, was duly
considered and dealt with in Regular Civil Suit No.54 of 1912-13,
which was interse between plaintiff no.1 and plaintiff no.2. The said
suit was decided on March 17, 1913.
13. However, the decree passed in the aforesaid suit of 1912 will
not bind the present Respondents/defendants, they being not party to
the said proceedings.
sg 2.sa164-12.doc
14. The perusal of the analysis of facts and evidence expressed
by the appellate court reveals that the sale deed Exhibit 64 was
incomplete in its entirety, as the important portion of said document,
which reflects the details about suit property, was not available, as the
said part of document was destroyed. Same has prompted the appellate
court to consider Exhibit 21, certified copy of the sale deed dated 6 June
1905, i.e. Exhibit 64. Exhibit 21, the certified copy, was permitted to be
produced on record at an appellate stage, pursuant to the provisions of
Order 41 Rule 27 of the CPC. It is claimed by the Counsel for the
Appellant that said provision could have been invoked only after
permitting the Appellant to lead appropriate evidence in support to
resist claim of the Respondents. However, the Court is required to be
sensitive to the provisions of Order 41 Rule 27 (1)(b). The said
provision reads thus:
"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--
(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."
15. The provision of Order 41 Rule 27(1)(b) of C.P.C.
contemplates and gives power to the appellate court to permit a party or
direct a party to produce such document, which in its discretion deem it
sg 2.sa164-12.doc
appropriate to be permitted to be produced on record for proper
adjudication of the suit claim, which was brought before it.
16. Objection, if any, to such document (Exhibit 21), which is
admittedly a certified copy of a document Exhibit 64, should have been
raised at 1st Appeal stage and not in present proceeding. The record
rather depicts a fact that the Appellant has not disputed the document
Exhibit 21. That being so, no fault could be noticed qua non-
compliance of the provision of Order 41 Rule 27(1)(b) of CPC, as has
been claimed by the Appellant.
17. The appellate court, while comparing the details of the
property, which was transacted vide Exhibit 64, has noted that the
property mentioned in Exhibit 64 does not match with that of the suit
property. While recording such finding of fact, the first appellate court
has relied on the admitted document Exhibit 21, a certified copy of
Exhibit 64.
18. In the aforesaid background, the claim put forth by the
Appellant that the judgment of the appellate court goes contrary to the
scheme of Order 41 Rule 27 of CPC is without basis. As such, said
contentions are also rejected.
19. As far as the last contention as regards the absence of plea
on the part of the Respondents/defendants questioning the title of the
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present Appellant is concerned, the trial court has framed the issues at
Exhibit 18. The Issue No.1 specifically deals with title of the Appellant
over the suit property. Once the suit property, which is described in the
plaint, does not matches with that of the one in Exhibit 64, the title
document, over which the case was based, the court below was justified
in recording a finding of fact that the Appellant has failed to establish
the title over the suit. The appellate court, while dealing with the issue
No.1, has rightly considered the plea that whether the Appellant has
established that the suit property is the very property purchased vide
Exhibit 21/Exhibit 64 and answered the issue against the Appellant.
The said answer by the appellate court is based on the reasons narrated
hereinbefore.
20. In this background, I hardly notice any involvement of
question of law in the present appeal. The appeal as such is dismissed.
21. In view of the disposal of the second appeal, nothing
survives in the civil application and the same is disposed of.
(NITIN W. SAMBRE, J.).
