Chattisgarh High Court

Khorbhara(Name Deleted As Per ... vs Tetku Ram (Name Deleted As Per ... on 27 September, 2022

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR


                              Second Appeal No.158 of 2004

                           Judgment Reserved on : 12.9.2022
                           Judgment Delivered on : 27.9.2022

    1. Khorbahara, S/o Amorva Sahu, aged about 61 years --- Deleted
    2. Jagesar, S/o Khorbahara Sahu, aged about 40 years,
    3. Ramesar, S/o Khorbahara Sahu, aged bout 45 years,
    4. Bisram, S/o Khorbahara Sahu, aged about 48 years,
       All Caste Sahu, occupation Agriculturist, R/o Village Siwar, Tahsil and
       Thana Berla, District Durg, Chhattisgarh
    5. Jagdish, S/o Khorbahara Sahu, aged about 40 years, occupation
       Agriculturist, R/o Village Sewar, present address Labour Camp Jamul,
       Tahsil and District Durg, Chhattisgarh
                                                                ---- Appellants
                                     versus

    1. Tetkuram, S/o Ramdayal, aged about 51 years, caste Yadav,
       occupation Agriculturist --- Deleted, Through his Legal Heirs:
       1A) Balluram, S/o Tetku, aged about 37 years,
       1B) Vinod, S/o Tetku, aged about 35 years,]
       1C) Kaushal, S/o Tetku, aged about 31 years,
       1D) Janki Bai, Wd/o Tetku, aged about 65 years,
             A1 to 1D are residents of Village Siwar, Tahsil and Police
             Station Berla, District Bemetara, Chhattisgarh
       1E) Anita, D/o Tetku, aged about 33 years, R/o Kandraka,
             (Patharighat), Tahsil Berla, District Bemetara, Chhattisgarh
       1F) Annapurana, D/o Tetku, aged about 29 years, R/o Village
             Belgaon, Tahsil Saja, District Bemetara, Chhattisgarh

    2. Rajimbai, widow of Ramdayal, aged about 80 years,
    3. Sundariya Bai, D/o Ramdayal, aged about 55 years, occupation
       labourer,
       All R/o Sewar, Tahsil Berla, District Durg, Chhattisgarh
    4. State of Chhattisgarh through Collector, Durg
                                                                                 --- Respondents


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For Appellants : Shri Ravindra Kumar Agrawal, Advocate For Respondents No.1 to 3 : Shri Rajkumar Pali, Advocate For Respondent No.4 : Shri Rahul Jha, Government Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. The substantial question of law formulated and to be answered in

the instant defendants' second appeal is as under:

"Whether on the facts and in the circumstances of the case the appellate Court illegally reversed the judgment and decree of the trial Court by misreading the evidence and holding that the disputed land belongs to the plaintiffs (respondents herein)?"

2. During pendency of the instant appeal, Respondent 1/plaintiff 1

Tetkuram died and, therefore, Respondents 1-A to 1-F, who are

legal heirs of Tetkuram are brought on record. Further, defendant

1/Appellant 1 Khorbahara also died during pendency of this appeal

and his legal heirs are already on record and, therefore, his name

has been deleted from the array of cause title.

3. Facts of the case, in short, are that a suit for declaration, perpetual

injunction and possession was filed by Respondents 1 to 3 claiming

that the land bearing Khasra No.888 area 0.10 hectares is

ancestral property, which was earlier recorded in the name of their

ancestor Ramdayal and after his death it is recorded in the name of

Respondents 2 and 3 and original Respondent 1. However, the

Appellants/defendants erected a house over the suit land despite

objection. The plaintiffs as also defendant Jagdish applied for

demarcation. On their applications, the Tahsildar Berla submitted

his report dated 21.1.2002. On this report, the plaintiffs came to

know that they are the owners of the suit land on which the

defendants have illegally made encroachment. With a view to end

the dispute, it was agreed between the parties that 15 dismil out of

the total 25 dismil land shall be purchased by the defendants for a

sum of Rs.15,000 and an agreement to this effect was entered into

between the parties. However, the defendants neither got the sale-

deed executed nor did vacate the suit land. They also constructed

a house over a part of the disputed land in the previous years. A

legal notice for handing over possession of the suit land was sent

and thereafter the suit was filed.

4. The defendants denied the allegations of the plaintiffs made in the

plaint and stated in their written statements that the father of the

plaintiffs namely Ramdayal died 16 years prior to filing of the suit.

They have not encroached upon any land belonging to the

plaintiffs. It was further pleaded that one Kartikram sold his land

situated at Village Siwar to Khorbahara/deceased Appellant 1 on

26.5.1952 and since then the defendants are in possession over

the suit land and they have constructed there a house and they are

residing in the said house. It was further pleaded that the plaintiffs

illegally demanded a sum of Rs.15,000 and got signature of the

defendants on a plain paper. It was further pleaded that original

plaintiff Tetkuram was in possession over his land which is adjacent

to the disputed land and the suit has been filed with an intention to

harass the defendants. The Trial Court vide its judgment dated

30.8.2003 dismissed the suit of the plaintiffs and recorded finding

that the plaintiffs have failed to prove that they are the owners and

title holders of the suit land and further failed to prove that the

defendants/Appellants have dispossessed them.

5. The Respondents/plaintiffs filed an appeal against the judgment of

the Trial Court. The First Appellate Court vide the impugned

judgment dated 27.1.2004 allowed the appeal and set aside the

judgment and decree passed by the Trial Court and granted a

decree with costs in favour of the Respondents/plaintiffs declaring

that they are the owners of the suit land and they are entitled to

recover possession of the suit land from the Appellants/defendants

after demolition of the house and garden and further granted a

decree of perpetual injunction against the interference. Hence, the

instant second appeal by the defendants/Appellants.

6. During pendency of the instant appeal, the Respondents/plaintiffs

produced the bandobast surveykshan (settlement renumbering) of

the year 1981-82, i.e., Annexure A1. Columns No.1 and 2 of the

said surveykshan mention that Khasra No.182/1 was bifurcated and

marked as Khasra No.888. This document has been provided by

the Patwari and this is a true copy only. Pursuant to the order

dated 28.3.2022 passed by this Court, Respondent 4/State has

also filed a re-numbering list, which is the same document

submitted by the Respondents/plaintiffs along with their application

under Order 41 Rule 27 CPC. The re-numbering list, i.e., Annexure

R4/3 submitted by the State is a certified copy of the document.

7. No reply has been filed by the Appellants to the application under

Order 41 Rule 27 CPC.

8. Shri Rajkumar Pali, Learned Counsel appearing for Respondents 1

to 3/plaintiffs submitted that it was not advised by the Trial Court for

filing of the document bandobast surveykshan (settlement

renumbering) of 1981-82. Therefore, the plaintiffs could not obtain

and file the same. They are rustic illiterate villagers and they are

also not aware of the importance and requirement of the document

and they have also acted under the guidance of their counsel in the

Trial Court. The renumbering of old Khasra No.182/1, i.e., present

Khasra No.888 is one of the important piece of evidence and

document for just decision of the case. Therefore, it is prayed that

it may be taken on record as an additional evidence.

9. On the other hand, Shri Ravindra Kumar Agrawal, Learned Counsel

appearing for the Appellants/defendants opposed the arguments

advanced by Learned Counsel for Respondents 1 to 3/plaintiffs.

10. Learned Counsel appearing for the State/Respondent 4 opposed

the arguments advanced by Learned Counsel for Respondents 1 to

11. I have heard Learned Counsel appearing for the parties and

perused the record of both the Courts below with utmost

circumspection.

12. Though the document Annexure A1 filed along with the application

under Order 41 Rule 27 CPC is a true copy obtained from the

Patwari, certified copy Annexure R4/3 is also produced by

Respondent 4 which is also available on record. From perusal of

the pleadings of the parties it appears that the said document

Annexure R4/3 (certified copy)/Annexure A1 (photo copy) is the

important piece of document and evidence for just decision of the

case and is absolutely required in the interest of justice to arrive at

the very conclusion within the meaning of Order 41 Rule 27(1)(b)

CPC. Therefore, the application is allowed and the bandobast

surveykshan renumbering of 1981-82 i.e., Annexure R4/3 which is

a certified copy is admitted as additional evidence.

13. The question would be of once the document is taken on record as

an additional evidence what should be procedure followed in the

second appeal.

14. Dealing with the issue, the Supreme Court, in (2010) 8 SCC 423

[Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills

(Refineries)], held that once the document is taken on record as an

additional evidence opportunity must be given to other side to

produce the evidence in rebuttal if they so desire. Relevant

paragraphs 16 and 17 of the report read 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 respondent-defendant an opportunity to lead evidence in rebuttal

of the documents taken in as additional evidence.

17. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so."

15. In (2018) 4 SCC 659 (Akhilesh Singh alias Akhileshwar Singh v. Lal

Babu Singh), it was further held by the Supreme Court as under:

"12. Order 41 Rule 27 CPC, which deals with the provision of additional evidence in appellate court, provides for the grounds and circumstances on which the appellate court may allow such evidence or documents or witnesses to be examined. Order 41 Rule 27 sub-rule (2) further provides that wherever additional evidence is allowed to be produced by an appellate Court, the court shall record a reason for its admission. Order 41 Rule 27 is silent as to the procedure to be adopted by the High Court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the appellate court to grant opportunity to the other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order 41 Rule 27.

14. Order 41 Rule 2 provides that the appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal.

The proviso to Order 41 Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When

the appellate court admits the additional evidence under Order 41 rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by the present appellant and his other co-sharers and what was relied on before the High Court was that the appellant admitted in the sale deeds that the partition has taken place in the family. The main issue in the first appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds has taken place in the family is correct or not. The additional evidence which was admitted has been relied on by the High Court while allowing the appeal. It was in the interest of justice that the High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the first appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied on by the defendants. The mere fact that no counter-affidavit was filed to the IAs was not decisive. Since IAs having not been admitted, occasion for counter-affidavit did not arise at any earlier point of time. The High Court on the same day i.e. 8.3.2017 has allowed Lal Babu v. Akhilesh Singh, 2017 SCC OnLine Pat 309 the IAs as well as the first appeal. The fact that the contesting respondents to the first appeal, who ar the appellant before us were not represented at the time of hearing of the first appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.

15. A three-Judge Bench of this Court in LAO v. H. Narayanaiah, (1976) 4 SCC 9 had occasion to consider Order 41 Rule 27 in context of admission of additional evidence by the appellate court. This Court had observed that in the event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence. In para 28 of the judgment, following has been laid down: (SCC p. 20) "28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Order 41 Rule 27 CPC. We are of 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 existence by leading other evidence."

(emphasis supplied)

16. To the same effect is another judgment of this Court in Shalimar Chemical Works Ltd. v. Surendra Oil and Dal Mills, (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order 41 Rule 27. This Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal. In the above case also, the High Court simultaneously proceeded to decide the appeal along with admitting additional evidence on record. In paras 16 to 18, the following has been laid down: (SCC p. 430) "16. The learned Single Judge rightly allowed Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills, 2000 SCC OnLine AP 636 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 of 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 respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.

17. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent- defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.

18. The judgment and order dated 25.4.2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were

taken on record as additional evidence. The learned Single Judge may allow the respondent-defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41 rule 28."

16. Thus, in the light of above mentioned judgments of the Supreme

Court, opportunity has to be given to the other side to lead

evidence in rebuttal.

17. Order 41 Rule 28 CPC provides that wherever additional evidence

is allowed to be produced the Appellate Court may either take such

evidence or direct the Court from whose decree the appeal is

preferred, or in other Subordinate Court, to take such evidence and

to send it when taken to the Appellate Court.

18. Order 41 Rule 29 CPC provides that where additional evidence is

directed or allowed to be taken, the Appellate Court shall specify

the points to which the evidence is to be confined, and record on its

proceedings the points so specified.