Jai Prakash Tiwari vs A. Onkar
2022 Latest Caselaw 756 Chatt

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                                                                   AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR

                        SA No. 330 of 2011

                     Reserved on : 25.11.2021

                     Delivered on : 14.02.2022

1.   Jai Prakash Tiwari, S/o Late Shri Radhe Shyam Tiwari, Aged
     About 34 Years.
2.   Smt. Gayatri Bai, W/o Late Shri Radhe Shyam Tiwari, Aged
     About 54 Years.
3.   Shiv Kumari, D/o Late Shri Radhe Shyam Tiwari, Aged About 32
     Years.
4.   Shail Kumari, D/o Late Shri Radhe Shyam Tiwari, Aged About 34
     Years.
5.   Sarla, D/o Late Shri Radhe Shyam Tiwari, Aged About 28 Years.
6.   Kiran, D/o Late Shri Radhe Shyam Tiwari, Aged About 26 Years.
     All R/o Village- Taga, Tahsil- Akaltara, District- Janjgir-Champa
     (C.G.)
                                                         ---- Appellants
                               Versus

1.   1A. Onkar, S/o Bhawani, Aged About 40 Years, R/o Pachri Ghat,
     Juna Bilaspur, Bilaspur, Tahsil & District- Bilaspur (C.G.)
     1B. Mahesh Prasad, S/o Bhawani (Dead)
     1C. Annapurna, W/o F.D. Diwan, Aged About 30 Years, R/o
     Village-Navagarh, District- Durg (C.G.)
2.   2A. Sita Bai, Wd/o Vishnu Prasad Tiwari.
     2B. Mani Kumar Tiwari, Aged About 30 Years.
     Both R/o Village- Sitamadhi, Korba, Tahsil & District- Korba
     (C.G.)
3.   Ramorama, Wd/o Amritlal (Dead).
4.   Santoshi, W/o Hemnarayan Tripathi, Aged About 22 Years.
5.   Sandhya, W/o Mahesh Prasad Mishra, Aged About 20 Years.
     Both R/o Village- Sariyya, District- Banda (U.P.)
6.   State of Chhattisgarh, Through- Collector, Janjgir-Champa,
     District- Janjgir-Champa (C.G.)
7.   Sankata Prasad, S/o Ramdayal Shukla, R/o Village- Tifra, Tahsil
     & District- Bilaspur (C.G.)
                                                     ---- Respondents

For Appellants : Mr. H.V. Sharma, Advocate. For Respondent No. 1A & 1B : Mr. Prateek Sharma, Advocate. For State/Respondent No. 6 : Ms. Smita Jha, Panel Lawyer.

Hon'ble Shri Justice Narendra Kumar Vyas

C.A.V. JUDGMENT

1. The present second appeal is preferred by the plaintiffs/ appellants under Section 100 of the C.P.C. against judgment and decree dated 08.08.2011 passed by Additional District Judge, Janjgir, District- Janjgir-Champa (C.G.) in Civil Appeal No. 04-A/08 (Jai Prakash & others Vs. Onkar & others) affiring the judgment and decree passed by Civil Judge, Janjgir in Civil Suit No. 106A/2003 on 11.03.2008.

2. The instant Second Appeal is admitted for hearing by this Court on 26.04.2017 on following substantial question of law:-

"Whether the learned First Appellate Court has erred in deciding the appeal without considering the application filed on 20.04.2009 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 ?"

3. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed Civil Suit No. 63A/98 wherein the plaintiff has claimed for declaring the order dated 14.10.1991 passed by the revenue court in case of Arra Bai Vs. Vishnu Prasad & others. Alternatively, it was also prayed that the plaintiff be declared half share of suit land measuring 11.20 acres. It has also been prayed that the plaintiff be also granted joint possession along with defendant No. 1 in suit land.

4. For better understanding of the relationship between the plaintiff and respondents, it is expedient to quote genealogy of the parties as mentioned in the plaint, which is extracted below:-

Hariram (Dead)

Tripatinath Mahatmaram (Dead) Bisesarnath (Dead) = Jamuna Bai (Dead)

Vishnuprasad Amrital Radheshyam Arra Bai (DW-2) (Dead)= (Plaintiff) (DW-1) Ramorama (DW-3)

Santoshi Sandhya (DW-4) (DW-5)

5. From perusal of the plaint averments, it is reflected that as per record of right for the year 1954-55, there was joint account of land total Khasra No. 37 area admeasuring 30.73 acres between mother of defendant No. 1-Jamuna Bai, Tripatinath & Bisesarnath, but Bisesarnath was separated from joint account and after separation total 19.81 acres land were recorded and there was no partition between Tripatinath & Jamuna Bai. Husband of Jamuna Bai expired in the year 1941, therefore, as per principle of survival, the whole land was merged in the name of Tripatinath, but inadvertently, name of Jamuna Bai was recorded. It has also been stated in the plaint that father of plaintiff expired in the year 1974, therefore, the plaintiff, defendant No. 2 Amritlal alienated the property by succession and in the revenue record, name of Jamuna Bai, defendant No.2- Amritlal, plaintiff's mother-Sukhinbai was recorded.

Defendant's No. 1 mother- Jamuna Bai who was residing with her brother expired in the year 1983 thereafter defendant No. 1 has also recorded her name after mutation.

6. It has been further pleaded that in the plaint that mother of defendant No.1 before her death, had sold her land and only 11.20 acres land was left, which was recorded in the joint name of defendant No.1, defendant No.2-Amritlal and plaintiff. In the meantime, defendant No.2 & Amritlal was separated and left to Korba & Bilaspur respectively. They have handed over the land to the plaintiff. It has also been pleaded in the plaint that the plaintiff is in possession of the land prior to death of Jamuna Bai and even after her death. The plaintiff was looking after the suit land and defendant No. 1 was visiting to plaintiff occasionally as guest.

7. It has been further pleaded in the plaint that in the year 1983-84, defendant No. 1 filed complaint bearing Revenue Case No. 1A/6 Year 1984-85 before Tahsildar, Janjgir against defendant No. 2- Amritlal and the plaintiff for recording her name, wherein defendant No. 1 has shown her name as successor of Jamuna Bai and since defendant No. 2 Amritlal has already sold his land, as such, she filed an application for recording her name only in the revenue record. The defendant No. 1 has submitted a will dated 05.12.1982 executed by Jamuna Bai, wherein Jamuna Bai has given her share of land admeasuring 9.03 acres to defendant No. 1. The said case was dismissed for want of prosecution on 15.10.1985.

8. It has been further pleaded in the plaint that defendant No. 1 has filed application under Section 178 of the Land Revenue Code bearing Case No. 6A/27 Year 1986-87 before Tahsildar, Janjgir against the plaintiff and his brother for partition of account, in which, Tahsildar has passed order on 14.10.1991 and name of plaintiff and his brother have been deleted, in which, name of defendant No. 1 was recorded. Being aggrieved with the order passed by the Tahsildar, the plaintiff and his brother filed case

bearing No. 38A/27 Year 1991-92 before Sub-Divisional Officer, Janjgir and the same was dismissed by the Sub-Divisional Officer vide order dated 20.031995. Defendant No. 1 has taken over possession of the suit land in the year 1995 by dispossessing the plaintiff.

9. It has also been pleaded that in case it is joint account then defendant No. 1 is entitled for half of the share whereas in the total land of 11.20 acres, the name of defendant No. 1 has been recorded. In view of the above factual position, the plaintiff has filed the present suit for declaration and partition.

10. During pendency of the suit, defendant No. 1 & 2 expired, therefore, their legal representatives were brought on record and they have filed their written submission mainly contending that the suit land is ancestral property of defendant No. 1. The said land has been given to father of Arra Bai- Mahatmaram in partition admeasuring 9.03 acres and legal representatives of deceased Arra Bai are in possession of the suit land. It has also been specifically denied that as per the records of right for the year 1954-55, the defendant's No. 1 mother- Jamuna Bai and Tripatinath and Bisesarnath have joined the account of land admeasuring about 30.73 and Bisesarnath was separated from them and after partition, 19.81 acres land was remained in the joint account. It is also denied that after death of husband of Jamuna Bai, she has no right over the land and as per principle of survival, the land should have been recorded in the name of Tripatinath, but inadvertently it has been recorded in the name of Jamuna Bai. The allegation made in the plaint was denied and it was contended by the defendant that there was partition between Vipattinath, Mahatmaram and Bisesarnath in the year 1931 and after partition they are in possession of their respective land, they were doing agriculture operation. Mahatmaram was in possession of 9.03 acres and his name was recorded in the revenue records and after death of Mahatmaram name of Jamuna Bai being successor has been recorded. She was in

possession of the suit land and after death, her daughter- Arra Bai was in possession and after her death, legal representatives of Arra Bai namely Onkar Prasad, Mahesh and Annapurna are in possession of the land. It is specifically denied that mother of defendant No. 1- Jamuna Bai has sold the joint account property as such only 11.20 acres of land was left which was recorded in the name of defendant No. 1 & 2. The plaintiff and his brother have already sold their land to other person. The plaintiff is not entitled to get possession over the suit land, the plaintiff's suit is also barred by limitation and it has also been contended that the suit was undervalued, the appeal was rejected by the Sub- Divisional Officer, Janjgir on 20.03.1995 and thereafter, that order has not been challenged by them, therefore, this order has become final and has prayed for rejection of the suit.

11. Learned trial Court after pleading of the parties, has framed as many as six issues. The plaintiff has examined witnesses namely Shyam Sundar (PW-1), Ramnath (PW-2) & Radhe Shyam (PW-3) and exhibited documents i.e. order of Sub- Divisional Officer (Annexure P/1) only. The defendants examined witnesses namely Onkar Prasad (DW-1), Ramashankar (DW-2), Kriparam (DW-3) and exhibited copy of order dated 14.10.1991 passed by Naib Tahsildar, B/1 Kishtabandi Khatouni recorded in the name of Onkar Prasad, P-II Panchshala recorded in the name of Arra Bai, P-II Panchshala recorded in the name of Arra Bai.

12. The learned trial Court after appreciating the evidence, documents and pleading of the parties, has dismissed the suit. Being aggrieved with the judgment and decree passed by the learned trial Court dated 18.03.1998, the plaintiff has preferred First Appeal before the learned District Judge, Janjgir-Champa which was subsequently transferred to Additional Sessions Judge and registered as Civil Appeal No. 4A/2008 mainly contending that learned trial Court without appreciating the evidence, material on record, has dismissed the suit.

13. During pendency of first appeal, the plaintiff/ appellant-

Radheshyam expired on 22.08.2009, therefore, his legal representatives have brought on record. The appellant filed an application under Order 41 Rule 27 of the C.P.C. on 13.07.2009 mainly contending that the plaintiff was an illiterate person and was not aware about the court proceeding. During trial of the case, he has received certain documents regarding land records, irrigation charges and the sale-deed, which remained in the brief of the counsel as inadvertently learned counsel could not produce the same. It has been further contended that these documents are necessary documents for just and proper adjudication of the case, therefore, the same may kindly be taken on record. The appellant has also filed an affidavit reiterating the facts which they have already mentioned in the application. The respondents/ defendants have filed their reply denying the allegations made in the application contending that despite opportunities granted, they have not produced documents and the documents which have been produced are not relevant for proper adjudication of the case as the documents have been prepared in the year 2007 whereas stamp has been issued on 22.11.2000, which has been prepared after death of the plaintiff and is after thought story subsequent to the judgment and decree passed by the trial Court. The documents are not public documents and if the documents have been taken on record, again the evidence will be initiated, therefore, it is delay tactics, as such, the application filed by the appellant is liable to be dismissed.

14. The appeal was adjourned to 28.07.2009 for reply and argument and adjournment was continued and ultimately, the defendants have filed their reply to the application filed by the appellant under Section 41 Rule 27 of the C.P.C. on 02.07.2011, the appeal was finally heard and vide the judgment and decree dated 08.08.2011, the appeal has been dismissed. Hence, this Second Appeal. The second appeal is admitted for hearing by

this Court on 26.04.2017 on the above stated substantial question of law.

15. Learned counsel for the appellants would submit that learned First Appellate Court has committed illegality and irregularity in not deciding the application filed under Order 41 Rule 27 of the C.P.C. at the time of deciding the appeal which is against the law laid down by Hon'ble the Supreme Court in Jatinder Singh & others Vs. Mehar Singh & others1 and on this count alone, the judgment and decree passed by the trial court is liable to the set aside and the matter be remanded back to the First Appellate Court for deciding the appeal along with the application.

16. On the other hand, learned counsel for the respondent would oppose the submission made by learned counsel for the appellants and would submit that the Coordinate Bench of this Court has decided the same issue in Urmila Bai Vs. Yashoda & others2 wherein it has been held that non-consideration of the aforesaid application filed under Order 41 Rule 27 of the C.P.C. has not caused any prejudice to the plaintiff, particularly when this the said application was not pressed into service by plaintiff herself before the first appellate court. Thus, the substantial question of law is answered against the plaintiff and in favour of the defendants.

17. I have heard learned counsel for the parties and perused the documents appended thereto with utmost satisfaction.

18. The question as to how the application filed under Order 41 Rule 27 of the C.P.C. in the appeal should be decided by the Appellate Court remains no more res integra and stands concluded by Hon'ble the Supreme Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs.3, wherein Hon'ble the Supreme Court has held at paragraph 13 to 17 as under:-

1 (2009) 17 SCC 465 2 Second Appeal No. 183 of 2008 (Decided on 05.11.2019) 3 (2008) 8 SCC 511

"13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 C.P.C.

Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said rule are found to exist. The circumstances under which additional evidence can be adduced are :

(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, [clause (a) of sub rule (1)] or

(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, (clause aa, inserted by Act 104 of 1976) or

(iii) 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. (clause (b) of sub rule (1)).

14. It is plain that under clause (b) of sub rule (1) of Rule 27 Order 41 C.P.C., with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur & Ors. Vs. Lal Mohar Thakur & Ors.. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows:

"........ Under clause (1)(b) it is only where the appellate Court 'requires' it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in

either case it must be the Court that requires it. This is the plain grammatical reading of the sub- clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent."

15. Again in K. Venkataramiah Vs. A. Seetharama Reddy & Ors. (AIR 1963 SC 1526) a Constitution Bench of this Court while reiterating the afore- noted observations in Parsotim's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.

16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. (AIR 1957 SC

363) which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see: Gajanan

Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166].

17. These are the broad principles to be kept in view while dealing with applications under Order 41 Rule 27 and Order 6 Rule 17 C.P.C. "

19. Hon'ble the Supreme Court in Shalimar Chemical Works Limited Vs. Surendra Oil & Dal Mills (Refineries) & others 4, has held at paragraph 16 as under:-

"16. The learned Single Judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence."

20. Hon'ble the Supreme Court in Corporation of Madras & another Vs. M. Parthasarathy & others5 has held at paragraph 11 to 15 as under:-

"11. It is an admitted fact that the respondents (plaintiffs) had filed an application under Order 41 Rule 27 of the Code in their first appeals before the first Appellate Court (CMP No.1559/93) praying therein for production of additional evidence in appeals. It is also an admitted fact that this application was allowed and the additional evidence was not only taken on record but also relied on by the Appellate Court as Exs.P-16 to P- 20 for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing all the four civil suits.

12. In our considered opinion, the first Appellate Court committed two jurisdictional errors in allowing the appeals.

13. First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate 4 (2010) 8 SCC 423 5 (2018) 9 SCC 445

Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., (1976) 4 SCC 9, Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4 SCC

759).

14. Second error was of a procedure which the first Appellate Court failed to resort in disposing of the appeals. This also involved a question of jurisdiction.

15. Having allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23-A of the Code and remanded the case to the Trial Court for re-trial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits."

21. The judgment cited by learned counsel for the respondents is distinguishable from the facts and circumstances of the case as in that case, this Court has recorded a finding that the said application was not pressed into service by the plaintiff herself before the First Appellate Court, where in the present case, application was filed which was replied by the defendant, thus, it is incumbent on the part of the learned First Appellate Court to decide the same in accordance with law as held by Hon'ble the Supreme Court.

22. Unfortunately, the learned First Appellate Court has not decided the application filed by the appellants under Order 41 Rule 27 of the C.P.C. which was incumbent for the appellant to decide the

same at the time of deciding the appeal as per the law laid down by Hon'ble the Supreme Court keeping in view the law laid down in the above-mentioned three decisions insofar as it deals with disposal of application of Order 41 Rule 27 of the C.P.C. The learned First Appellate Court should decide the application filed under Order 41 Rule 27 of the C.P.C. long with the appeal on merits, in accordance with law without being influenced by any observations made in the impugned order and in this order.

23. In view of the above, considering the facts and circumstances of the case, this Court is of the view that the substantial question of law is answered in favour of the appellants/plaintiffs and against the respondents. The instant appeal is liable to be and is hereby allowed in part.

24. The matter is remanded back to the learned First Appellate Court for deciding the first appeal afresh including the application filed by the appellant under Order 41 Rule 27 of the C.P.C. on their respective merits keeping in view the law laid down by the Supreme Court.

25. The parties are directed to appear before the concerned Court on 4th April, 2022 and the Registry is directed to send the records of the Courts below forthwith.

26. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Arun