Chattisgarh High Court
Bashir Mohammed Lrs. Mohammed ... vs Mohammed Saeed And Lrs. Mohammed ... on 2 January, 2023
Page 1 of 42
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 03-09- 2022
Delivered on 02-01-2023
SA No. 448 of 2014
1. Bashir Mohammed S/o. Sheikh Daud @ Daddu, Mulslim, R/o
Chantidih, Bilaspur (C.G.) (Since deceased through legal
representatives).
1(a). Mohammed Vakil, aged about 42 years.
1(b). Mohammed Shakil @ Sameer, aged about 48 years.
Both sons of Late Bashir Mohammed, R/o Chantidih, Tahsil &
District- Bilaspur (C.G.)
---- Appellants/plaintiffs
Versus
1. Mohammed Saeed, S/o Mohammed Saeed, Caste Muslim
(Since deceased through legal representatives) -
Defendant No.1
1(a). Mohammed Saleem, aged about 47 years.
1(b). Mohammed Kaleem, aged about 40 years.
Both sons of Late Mohammed Saeed.
1(c). Salma Begam, D/o Late Mohd. Saeed, aged about 35
years.
1(a) to 1(c) all R/o Chantidih, Beside Science College, Tehsil
and District- Bilaspur (C.G.)
LRs of defendant No.1
2. Qadar Mohammed @ Kallu, S/o Sheikh Daddu @ Daud, R/o
Chantidih, Bilaspur (C.G.)
Defendant No.2
3. State of Chhattisgarh, through- Collector, Bilaspur (C.G.)
Defendant No.3
4. Rafiq Ahmed, S/o Mohmmed Siddiqi, Aged About 61 Years, R/o
Tarbahar, Tehsil and District- Bilaspur (C.G.)
Defendant No.6
5. Sher Wahid, S/o Mohammed Siddiqi, Aged About 57 Years, R/o
Jabalpur, District- Jabalpur (M.P.)
Defendant No.7
6. Abdul Majeed, aged about 39 years, S/o Mohammed Siddiqui,
R/o Bhilai, District- Durg (C.G.) (Since deceased through Legal
Representatives)
Defendant No.8
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6(a). Jahida Begum, aged about 65 years, Wd/o. Late Abdul
Majeed.
6(b). Sheikh Aziz, S/o Late Abdul Majeed, Aged About 45 Years,
6(c). Saravat Jaho, D/o Late Abdul Majeed, Aged About 43
Years.
6 (d). Sheikh Firoz, S/o Late Abdul Majeed Aged About 41
Years.
6(e). Sheikh Parvez, S/o Abdul Majeed, Aged About 39 Years
Respondent No. 6(a) to 6(e) all are R/o Bhilai, Tehsil & District-
Durg (C.G.)
LRs of defendant No.8
7. Smt. Kulsum Begam, W/o Mohammed Yusuf, Aged About 60
Years, R/o Karbala Chowk, Bilaspur (C.G.)
Defendant No.9
8. Smt. Tashkin Akhtar, W/o B.N. Khan, Aged About 45 Years, R/o
Rajendra Nagar, Bilapsur (C.G.)
Defendant No.10
9. Shamigul Kalam @ Shamigul, W/o Firoz Khan, Aged About 42
Years, R/o Karbala Chowk, Tehsil & District- Bilaspur (C.G.)
Defendant No.11
10. Sardar Joginder Singh, S/o Sardar Inder Singh, Caste Punjabi,
aged about 50 years, R/o Takhatpur, District- Bilaspur (C.G.)
(since deceased through Legal Representatives)
Defendant No.12
10(a). Smt. Gurmeet Kaur, aged about 70 years, W/o Late
Joginder Singh Tuteja.
10(b). Harpeet Singh Tuteja, S/o Late Joginder Singh Tuteja,
Aged About 40.
10(c). Sumit Pal Tuteja, S/o Late Joginder Singh Tuteja, Aged
About 25 Years.
10(d). Rinki Singh Tuteja, D/o Late Joginder Singh Tuteja, Aged
About 32 Years.
LRs of Defendant No.12
Respondents No. 10(b) to 10(d) daughters and son of Late
Joginder Singh Tuteja
All R/o Sangeet Mahavidyalaya Street, Tikarapara, Bilaspur,
Tehsil & District- Bilaspur (C.G.)
11. Babulal, S/o Banshidhar Agrawal, R/o Chirmiri, Tehsil-
Manendragarh, District- Sarguja (C.G.)
Defendant No.13
12. Smt. Jamuna Bai, D/o Umarlal Agrawal, R/o Chirmiri, Tehsil-
Manendragarh, District- Sarguja (C.G.)
Defendant No.14
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13. Afzal Majeed Committee, through Mutawalli, Afzal Majeed
Committee, Chantidih, Tehsil & District- Bilaspur (C.G.)
Defendant No.15
14. Radheshyam Saraf, S/o Lakhanlal, Aged About 49 Years, R/o
Subhash Nagar, Godpara, Tehsil & District- Bilaspur (C.G.)
Defendant No.16
15. Mohammed Zameer, Aged About 38 Years.
16. Shakeela Bano, Aged About 46 Years.
17. Akeela Bano, Aged About 40 Years.
18. Mohammed Akeel @ Babuji, Aged About 45 Years missing for
20 years.
Nos. 15 to 18 are sons and daughters of Late Bashir
Mohammed, R/o Chantidih Tehsil and District- Bilaspur (CG).
(Respondents No. 15 to 18 are Lrs. of original plaintiff)
(Note: Defendants 4 and 5, since deceased, hence deleted
before the lower appellate court).
---- Respondents
For Appellant : Mr. M.D. Sharma and Mr. Aman
Sharma, Advocates.
For Res. No. 1(a), (b) & (c) : Mr. Ravish Chandra Agrawal, Sr.
Advocate with Mr. Anand Kumar Gupta,
Advocate.
For Resp. No. 10 : Mr. Anup Majumdar, Advocate.
For Res. No. 11 & 12 : Mr. Vivek Shrivastava, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
CAV JUDGMENT
1. This is plaintiff's second appeal filed under Section 100 of the
Code of Civil Procedure, 1908 against the judgment and decree
dated 5-9-2014 passed by the First Additional District Judge,
Bilaspur (CG) in Civil Appeal No. 24-A/2010, affirming the
judgment and decree dated 15-2-2001 passed in Civil Suit
No.33-A/1999 whereby the appeal filed by the plaintiff was
dismissed.
2. This appeal has been admitted by this court on 13-1-2015 on the
following substantial questions of law:
(i) Whether the Tehreenama dated 7-2-1955 Ex.D/4
can be negated by taking recourse to Section 58
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of Indian Succession Act on account of non-
examination of attesting witness No.1?
(ii) Whether the omission to decide the applications
filed under Order 6 Rule 17 of CPC and Order 41
Rule 27 of CPC has vitiated the entire judgment
and decree?
(iii) Whether the lower appellate Court erred in
holding that the plaintiff's suit is barred by time, by
reversing the findings of the trial court in this
regard?
3. For sake of convenience, the parties have been referred to as
shown in the original suit filed in the trial court.
4. The brief facts as reflected from the record are that the plaintiff
has filed a civil suit in the year 1990 claiming declaration of title
and possession by alleging inter alia, that the suit property
bearing Khasra No. 176, 177, 178 and 180 (renumbered as
Khasra Nos.180/1, 180/2 an 180/3) admeasuring respectively
1.10 acres, 0.72 acres, 0.08 acres and 8.5 acres (total 11.14
acres) situated at village Chantidih, District Bilaspur was
recorded in the revenue records in the name of Mohd. Sharif
S/o. Afzal Beg. It has been further averred in the plaint that the
plaintiff and respondents No.1 and 2 are relatives and they are
governed by the Mohammadan Law. It has also been contended
that the father of plaintiff and defendant No.2 Sheikh Daud @
Daddu has purchased the land from his own income and due to
love and affection he has recorded the suit land in the name of
his younger brother namely late Mohammed Sharif, but in fact
neither late Mohammad Sharif was real purchaser nor he was
owner of the suit property. It has also been contended that late
Mohammed Sharif was aware of the factual position, as such, he
has declared to give the land to the legal representative of
original owner late Mohammad Sheikh Daud @ Daddu's,
defendant No.1 Mohammed Saeed and Mohammed Ishaq are
aware of this declaration. It has also been averred in the plaint
that Mohammed Sharif expired in the year 1955, at the time of
his death plaintiff was minor and his mental position was also not
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proper as he was mentally disturbed and getting treatment at
Nagpur. It has also been contended that as per advice of Doctor,
he was kept away from all the mental tensions. It has also been
contended that the defendant No.1 Mohammed Saeed taking
advantage of the plaintiff's incapacity of look after the property,
he has done conspiracy and decided to take the said land on
rent for Rs 3,000/- from the plaintiff. The plaintiff was not aware
about the conspiracy committed by the defendant No.1 who is
his cousin. Therefore, the plaintiff has given the said land on rent
to defendant No.1 and defendant No.1 was paying rent of
Rs.3,000/- annual rent to the plaintiff as a tenant. This fact has
been brought to the notice of the plaintiff in the month of April
1990 that defendant No. 1 is tenant of the plaintiff and is being
paid Rs. 3,000/- per month by defendant No. 1. It has also been
contended that in the month of April 1990, the plaintiff was made
aware that defendant No.1 intended to sell the property on the
basis of possession. When the plaintiff has contacted defendant
No.1, then defendant No.1 informed him that his name has been
recorded and the Patwari has also verified the same fact,
therefore, the plaintiff has sent a registered legal notice to the
defendant No.1 only on 11-4-1990. Defendant No.1 replied the
said notice on 20-4-1990. Since, the defendant No. 1 is making
an effort to sell the property therefore, the plaintiff has sent legal
notice through his counsel on 11.04.1990 which was replied by
defendant No. 1 on 20.04.1990. The plaintiff to restrain
defendant No. 1 from selling of the suit property has sent various
notices and also published in the newspaper.
5. It has also been contended that after considering the reply of
defendant No.1, it has been brought to the notice of the plaintiff
that there was a dispute between the defendant No.1 and
Mohammad Ishaaq and a civil suit was filed wherein the decree
has been passed in the favour of defendant No.1. It is pertinent
to mention here that late Mohammad Ishaaq was uncle of
plaintiff and defendant No.1 and on account of filing of the suit
for partition by him, three brothers of Mohammad Sharif, out of
which legal heirs of elder brother Sheikh Daud @ Daddu were
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made party to the case, but along with them defendant No. 1
should have informed to the Court regarding non-impleading of
legal heirs of late Sheikh Daud as party in the suit, but they
deliberately to deprive the interest of plaintiff and defendant No.
1 have not joined the party to the case. It has also been pleaded
that they are aware that if the plaintiff and defendant No. 2 joined
as party to the case, then they will be deprived from the
property, therefore, they have not given any intimation to the
plaintiff and defendant No. 1.
6. It has also been contended that neither late Mohammad Sharif
was the owner of the property nor has right to give the land to
defendant No.1 as gift, but the defendant No.1 with malice to
deprive the plaintiff and defendant No. 2's interest has done
conspiracy of giving gift of the suit property, which is a forged
and fabricated story. It has also been contended that because of
that conspiracy plaintiff and defendant No.2 were not made party
to the case, therefore, judgment and decree passed by the trial
court is not binding upon them nor they are governed by the said
judgment and decree. On the above factual foundation, the
plaintiff has filed present suit for declaration that the suit property
purchased by the plaintiff's father late Sheikh Daud @ Daddu
was recorded in the name of his younger brother late
Mohammad Sharif in the revenue records of the suit property,
though he is not actual owner of the land. It has also been
declared that Mohammad Sharif not being owner of the land,
has no right to transfer or to gift the said land to defendant No. 1.
It has also been prayed that the late Mohammad Ishaq and
defendant No.1 concealing the fact regarding actual title of
plaintiff and defendant No.2 have obtained decree which is not
binding upon the plaintiff as they have not been made party to
that case, therefore, the judgment in the previous suit is not
binding upon the plaintiff and the defendant No2. It is also
prayed that the possession of the suit property be granted from
defendant No.1 in favour of the plaintiff.
7. The defendants have filed their separate written statement.
Defendant No.1 Mohammad Saeed has filed written statement
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admitting the fact that Mohammad Sharif died in the year 1955
and also contending that defendant No.1 was living with
Mohammad Sharif since his childhood, therefore, before one
year from his death, he has given oral gift to defendant No.1
including the suit property and since then he is in possession of
the suit property and his name has also been recorded in the
revenue records. It has been further admitted by him that Shiekh
Daud @ Daddu was the father of plaintiff and defendant No.2
and their father died in the year 1948, It has also been
contended that at the time of death of Mohammad Sharif, his
elder brother namely Sheikh Daud @ Daddu who was the father
of defendant No.1, Mohammad Siddique, Mohammd Ishaq and
one sister Fatima Bi were also there. It is also contended that
Mohammad Sharif and Mohammd Ishaq were residing at Raipur
and after death of Mohammad Shariff, defendant No.1 and his
father Mohammad Siddique filed a civil suit before the Court of
Civil Judge, Class I, Bilaspur regarding partition and for share of
their crop, at that time sister Fatima Bi died, therefore, her son
and daughters were made party to the case wherein it has been
pleaded by Mohd. Ishaq that after death of Mohammad Sharif,
he and sister of Mohammad Siddique are joint title holders and
they are in possession of the suit property, therefore, the son
and daughters of Fatima Bi were also made party to the case.
Suit was registered as Civil Suit No. 79-A/1997 and he has
referred to the pleadings in that suit wherein it has been
contended that the Mohammad Sharif has kept defendant No.1
as adopted son and he was maintaining him and before his
death he has given to him the entire land as gift which has been
accepted by defendant No.1 and his name has also been
recorded in the revenue records.
8. It has also been contended that learned trial Court after
appreciating the evidence, material on record, has recorded a
finding that Mohammad Sharif has given the entire property to
defendant No.1 as gift, therefore, he is sole owner of the suit
property and he is in possession of the said property. The suit
filed by Mohammad Ishaaq was dismissed on 23-8-1973,
Page 8 of 42
against which an appeal was preferred by Mohammad Ishaq
and same is also dismissed on 26-2-1977, against that second
appeal was preferred but during pendency of the appeal
Mohammad Ishaaq, therefore, legal representatives of
Mohammad Siddique were not brought on record, as such, the
second appeal No. 331 of 1977 was dismissed as abated. Facts
pleaded by the defendant have been denied with regard to title
and owner of the suit property. It has been contended that the
defendant No.1 in all the civil suits was representing and all the
documents were produced by him through his signature. It has
been also contended that everybody is aware of the fact that the
defendant No.1 was kept with Mohammad Sharif since his
childhood, all the lands have been given to him as gift, therefore,
nobody has right over the suit property. It has also been
contended that as per rules the name of defendant No.1 has
been recorded in the revenue records and since then he is in
possession of the suit property and as per the previous judgment
of the trial court, the name of the defendant No.1 has been
recorded, therefore, the plaintiff has no right to challenge the
same as per principle of res judicata and would pray for
dismissal of the suit.
9. Defendant No.2 Mohammad Qadar has filed written statement
and supporting the case of the plaintiff and admitted the
pleadings made in the plaint and would pray that the relief
sought for by the plaintiff be granted to him as he has no
objection and would also pray that the cost incurred for
contesting the case be imposed upon the defendant No.1 and he
may also be granted compensation of Rs. 10,000/-.
10. Defendant No. 4 to 11 have filed separate written statement
denying the averments made in the plaint mainly contending that
the suit property is self acquired property of Mohammad Sharif,
therefore, Shiek Daud @ Daddu or his legal representatives
have no right over the suit property. It is also contended that the
defendant No.1 has gifted some land of Khasra Nos. 176, 180/1
and 180/3 to Afzal Masjid Committee Bilaspur and has also sold
some part of the property whereas the defendant No.1 has no
right to sell or to gift the land to anybody, therefore, purchaser of
the property or the person who has been given gift by the
defendant No.1 is necessary party but they have not been
arrayed as party to the case, therefore, the suit cannot be
decided properly. It has also been emphatically denied that the
defendant was having possession over the suit property as
tenant and in fact the defendant No.1 and all the defendants are
jointly residing in their own share and after death of Mohammad
Sharif, defendant No.1 and rest of the defendants are residing
out of Bilaspur, therefore, unanimously it has been decided to
allow the defendant No.1 to do agricultural work on the suit
property and the defendants used to give share of the crop
produced during the agricultural work. It has also been
contended that the defendant Abdul Kalam's son Firoz Khan
who is power of attorney holder is completely serious ill but he
need some monetary benefit, but the defendant No.1 has not
given any monetary benefit on the count that the defendant has
no right over the suit property as his name has been recorded in
the revenue records. The defendants through their counsel
enquired and then it was found that the defendant No.1 has
illegally recorded his name in the revenue records, therefore, he
has filed an application before the Tahsildar wherein High Court
of Madhya Pradesh has passed the order and in pursuance of
the said order, the proceedings have been closed. This
information was brought to the notice of defendant No.1 that till
the appeal is pending, mutation proceedings shall not be carried
out, but ignoring this order for recording his name, the defendant
No.1 has moved an application before the Land Records at
Bilaspur on 29-8-1989 which is still pending but concealing the
fact he has obtained the order of mutation on 7-8-1992 wherein
the name of defendant No. 1 has been recorded. It has been
further contended that the parties in the previous suit are
different parties and their interest is also different, therefore, the
interest of defendants has not been decided and the appeal has
also not been decided finally, therefore, principle of res judicata
is not applicable. The defendants have taken additional plea
before the trial Court that the defendant No. 1 to grab the
property has taken in consisted stand as sometime he is saying
that the property has been gifted to him or sometime he takes
stand of adoption and both these things are incorrect facts and
also prayed for dismissal of the suit.
11. Defendant No. 13 and 14 who are wife and husband have filed
their written statement contending that they have purchased
0.60 acres of land and at that time the name of Sardar Joginder
Singh was recorded and he was in possession of the suit
property, as such in view of the registered sale deed, title and
possession has been obtained by them and, therefore, they are
bona fide purchasers of the suit property. It is also contended
that they know about Sardar Joginder Singh and they have not
done any transaction with Mohammad Saeed or anybody,
therefore, they have prayed for dismissal of the suit.
12. On the pleadings of the parties, learned trial court has framed
as many as nine issues which read as under.
(1) D;k oknh izfroknh dzekad 2 oknxzLr Hkwfe ds Hkwfe Lokeh gS~+\
(2) D;k Lo-'kjhQ dks oknxzLr Hkwfenku djus dk vf/kdkj ugha Fkk]
izHkko \
(3) D;k eksgEen 'kjhQ oknxzLr Hkwfe ds Hkwfe Lokeh ugha Fks] izHkko ~+\
(4) D;k vfHkdfFkr vkKfIr 'kwU;or gS \ izHkko \
(5) D;k O;ogkjokn dzekad 79,@72 ds QyLo#i ;g okn
jsl&T;wfVdsVk gksus ds dkj.k pyus ;ksX; ugha gS \
(6) D;k nkok le;kof/k ds ckgj gS] ;fn gka rks] izHkko \
(7) D;k izfroknh dzekad&1 oknh ls [email protected]& #i;s {kfr ikus dk vf/
kdkjh gS \
(8) D;k izfroknh dzekad&1 oknh ls [email protected]& #i;s {kfr ikus dk vf/
kdkjh gS \
(9) D;k izfroknh dzekad&2] izfroknh dzekad&1 10][email protected]& #i;s
{kfriwfrZ izkIr djus dk vf/kdkjh gS \ lgk;rk ,oa O;; \
13. To substantiate his stand, plaintiff has examined the witnesses
plaintiff, Mohammad Bashir (PW/1), Shankar Prasad Dubey
(PW/2) and Shiv Shankar (PW/3) and to substantiate his
pleadings he has exhibited the documents ie., medical
prescription dated 18-7-1991 (Ex.P/1), newspaper (Ex.P/2),
notice dated 11-4-1990 (Ex. P/3), reply given by the defendant
to the notice dated 17-4-1990 (Ex.P/4) and deposition of
Mohammad Saeed recorded in the Civil Suit No. 79-A/1972
(Ex.P/5).
14. Defendant No.1 Mohammed Qadar to substantiate his stand has
examined himself, Mohammed Sayeed (DW/1), Mohammad
Yasin (DW/2), Saroj Kumar (DW/3) and Laxmi (DW/4) and
exhibited the documents Keshband Kautani (Ex.D/1), right of
revenue record (Ex.D/2), Rinpustika (Ex.D/3), Tahreenama
written in Urdu (Ex. D/4), photocopy of Tahreenama translated
into Hindi (Ex D/4-c) and Ikrarnama (Ex. D/1). To substantiate
his stand, defendant No.1 Mohammad Saeed has exhibited
documents ie., revenue receipts (Ex.D/1), revenue records for
the year 54-55 (Ex.D/2), Map No.2 Vasuli for the year 1955-56
(Ex.D/3), Naksha No.1 for the year 1963-64 (Ex.D/4), deposition
of Sheikh Daud @ Daddu recorded in Civil Appeal No
79-A/1972 (Ex. D/5), statement of Mohammad Ai recorded in
Civil Suit No. 79-A/1972 (Ex. D/6), order passed by the High
Court of MP in SA No. 313/77 (Ex. D/7), judgment and decree
dated 23-7-1973 passed by the Civil Judge, Class-1, Bilaspur
(Ex. D/8), judgment and decree dated 26-2-1977 passed in Civil
Appeal No. 33-A/1974 (Ex. D/9) and the order dated 6-3-1993
passed by the Tahsildar (Ex. D/10).
15. Learned trial court after appreciation of the evidence, material on
record has recorded a finding that the plaintiff is unable to prove
issue No.1, 6 to 9 in negative against the plaintiff. Learned trial
court while deciding issue No. 2 has recorded a finding that the
plaintiff is unable to prove the fact that the suit property was
purchased by his father in the name of Mohammad Sharif and
while deciding issue No.3, the trial court has recorded a finding
that Mohammad Sharif was the owner of the suit property. While
deciding issue No.5 whether present suit is not maintainable
because of res judicata of civil suit No 79A/72, the learned trial
court has recorded a finding that both parties have given
consent that principle of res judicata is not applicable in the
present facts and circumstances of the case. Learned trial court
has also recorded a finding that the application of Section 11 of
CPC is the subject matter and the parties and competency of the
court and finality of the judgment should exist., but in the present
case, none of the facts is not available, therefore, principle of res
judicata is not applicable. The operative part of the finding reads
as under:-
"5- D;k O;ogkjokn dzekad 79,@72 ds QyLo#i ;g okn
jsl&T;wfVdsVk gksus ds dkj.k pyus ;ksX; ugha gS \&
20- mHk;i{kksa us vius rdZ esa ;g lgefr nh gS fd bl
izdj.k esa jsl T;wfVdsVk ds fu;e izHkkfor ugha gksrs gSaA
21- oknh eks- c'khj us ;g okn bl vk'k; dk izLrqr fd;k gS
fd fookfnr Hkwfe mlds firk 'ks[k nkmn us jde nsdj
izseo'k vius NksVs HkkbZ ds uke ij dz; dh FkhA blh vk/kkj
ij mlus LoRo dh ?kks"k.kk pkgh gS blds lkFk gha oknh us eks-
lbZn dks viuk fdjk;knkj gksuk dgk gS fd iwoZ okn O;-okn
dzekad 79&,@72 tks eks- b'kkd us izfroknh dza- 1 o vU; ds
fo:) izLrqr fd;k Fkk mlesa mlus dCtk izkIr djus
ckcr~ ;g okn is'k fd;k FkkA mijksDr O;ogkj okn ftlds
fu.kZ; dh izfrfyfi iz-Mh-&8 gS mleas oknh c'khj ,oa izfroknh
dzekad & 2 eks- dknj mQZ dYyw i{kdjk ugha FksA blfy,
/kkjk 11 O;-iz-la- ftlds vko';d rRo okn fo"k; dh
lekurk] i{kdkjksa esa lekurk] okn oLrq rFkk LoRo dh
lekurk] U;k;ky; dh l{kerk] fu.kZ; dh vafrerk] vkfn
rRo bl izdj.k esa ykxw ugha gksrs gSaA
22- ;g okn pwafd jsl T;wfVdsVk ds ifjf/k esa ugha vkrk gS
blfy, izLrqr okn pyus ;ksX; gSA vr% bl okn iz'u dk
fu"d"kZ ugha esa fn;k tkrk gSA"
16. Learned trial court also while deciding the issue No.4 whether
the alleged decree is null and void and its effect, has recorded a
finding that since the plaintiff and defendant No.2 were not
parties to the case, and the second appeal has also been abated
on account of non-bringing legal representatives of Mohammad
Ishaq on record within time, as such the judgment and decree
passed in Civil Suit No. 79A/72 is void. Learned trial court while
deciding issue No.6, has also recorded a finding that the suit is
not barred by limitation, but finally the suit has been dismissed
by recording a finding that the plaintiff is unable to prove that the
plaintiff's father Sheikh Daud @ Daddu was original purchaser of
the suit property and dismissed the suit.
17. Being aggrieved by the judgment and decree passed by the
learned trial court the plaintiff has preferred First Appeal before
the learned District Judge Bilaspur on 19-3-2001.
18. Defendant No. 1 has filed cross objection on 18.04.2001
regarding issue No. 6 decided by learned trial Court mainly
contending that the grounds which have been raised by the
plaintiff for delay in filing the suit contending that at the age of
11-12 years, the plaintiff became mentally disorder but has not
proved the same. It has also been contended that the learned
trial Court in paragraph No. 26 has given the finding that the
plaintiff has not given any evidence with regard to period of
mental disorderedness, but the learned trial court has committed
illegality in relying upon Ex. P/2 dated 27.08.1990 which was
publication in the newspaper by treating the suit within limitation
whereas in the plaint, he has pleaded cause of action March,
1990 whereas the publication was done on 27.07.1990. It has
also been contended that the suit is barred by limitation as
defendant has led evidence that Md. Sharif expired in the year
1995. It has also been contended that the plaintiff has not filed
any suit since 1953 to 1990 i.e. for 37 years, therefore, the suit
should have been treated by barred by limitation.
19. Defendant No. 2 has also filed cross objection against certain
findings recorded by the trial court mainly contending that the
learned trial Court should have held that Sheikh Daud has
purchased the property from his own income in the name of his
brother Mohammad Sharif, but the owner is Sheikh Daud. It has
also been contended that the learned trial Court should have
relied upon the document dated 07.02.2005 which is 30 years
old. The learned trial court has also erred in also not accepting
Ex. P/4 on the count that there is no pleading in this regard and
would pray for setting aside the judgment and decree relying
upon Ex. P/4.
20. The appellant has also filed an application under Order 41 Rule
27 C.P.C. on 06.09.2005 mainly contending that the plaintiff has
first time come to know on 30.07.2005 that the defendant without
impleading appellant has moved an application for mutation
which was rejected by Tahslidar despite this with the collusion of
patwari defendant No. 1 has recorded his name therefore, the
mutation is not binding upon the plaintiff. Since the plaintiff was
not aware about this document, therefore, it could not be filed
but it is necessary for proper adjudication of the case, therefore,
the same be kindly taken on record. The plaintiff has also filed
an application under Order 6 Rule 17 of C.P.C. on 03.05.2006
for amendment in the plaint and has prayed for adding after para
12 as para 12A mainly contending that the State Government
has constructed the road and some portion of the suit land was
acquired by the land acquisition officer wherein defendant No. 1
himself has declared adopted son of Sharif son of Md. Afzal and
in the application submitted before the Patwari, he has described
himself as adopted son of Md. Sharif and has not disclosed that
the suit land has been received by oral gift from Md. Sharif which
clearly establishes that the oral gift is fraud and after thought
story. It has also been contended that the mutation proceeding
has been conducted in violation of Rule 27 of the Mutation Rule,
therefore, it is not binding upon the plaintiff. It has also been
contended that this fact has been brought to the notice of the
plaintiff during pendency of the appeal and these facts are
necessary for adjudication of the present appeal, therefore, the
same be taken on record.
21. Learned First Appellate Court in view of the cross objection
submitted by the defendant No.1 has framed three questions for
its determination:-
(i) whether the learned trial court has committed
illegality in holding that the suit is barred by
limitation and has given incorrect decision on
the issue;
(ii) whether the trial court in view of Ex.D/4
Tahrinama has committed illegality in holding
that the plaintiff and defendant No.2 have no
right over the suit property and
(iii) whether the judgment and decree passed
by the learned trial court is against the law,
therefore, it is deserved to be set aside?
22. Learned First Appellate Court vide its judgment and decree
dated 25-9-2014 has dismissed the appeal filed by the plaintiff
and has allowed the cross objection of the defendant No.1
partially and held that present Civil Suit No 33-A/99 is barred by
limitation. The learned First Appellate Court while deciding the
question No.1 has recorded a finding that the plaintiff in his
evidence has contended that he was getting treatment from
various places and has also not moved any application under
Section 5 of the Limitation Act, therefore, the learned trial court
has committed illegally in recording the finding that the suit is
within limitation. It has also been held by learned First Appellate
Court that since Mohammad Sharif expired in the year 1955, the
suit should have been filed within 12 years whereas the suit has
been filed in the year 1990, therefore, the learned First Appellate
Court has given finding on question No. 1 that the learned trial
Court has committed illegality in holding that the suit is within
limitation. The learned First Appellate Court while deciding
question No.2 has given its finding that the learned trial court
has not committed any illegality in recording a finding that on the
basis of Ex. D/2 Tahirnama, the plaintiff and defendant No. 2 has
no right over the suit land and affirmed the decision on this
issue. The learned First Appellate Court while deciding issue
No.3 has recorded its finding that Md. Sharif has right to donate
the land as Md. Sharif was the owner of the suit land, thus, the
trial Court has not committed and illegality in deciding issue No.
2 & 3 framed by it. The learned First Appellate Court while
affirming the finding recorded by the trial Court except issue No.
6 has given its finding that the learned trial Court with regard to
issue No. 4 has given finding in favour of the plaintiff but plaintiff
Md. Bashir has not filed suit to declare the judgment and decree
passed by the trial Court in Civil Suit No. 79A/72 as null and
void, therefore, the entire decree will not be null and void in
view of the finding recorded by the trial Court and decision with
regard to issue No. 4 is treated as the judgment and decree
passed in Civil Suit No. 79A/72 decided on 23.08.1973 will be
effect-less on plaintiff and defendant Md. Qadar. The learned
First Appellate Court while setting aside the finding recorded by
the trial Court with regard to issue No. 6 has dismissed the
appeal filed by the plaintiff and cross objection filed by defendant
No. 1 has been partly allowed by holding that the suit is barred
by limitation. The judgment and decree passed by the First
Appellate Court has been assailed by the plaintiff by filing this
second appeal. Second Appeal has been admitted by this Court
on 13.01.2015 on the substantial question of law as stated in
paragraph 2 of this judgment.
23. Learned counsel for the appellant/plaintiff would submit that the
learned First Appellate Court without deciding the application
filed under Order 6 Rule 17 of CPC and order 41 Rule 27 of
CPC has recorded a finding, therefore, the entire judgment and
decree passed by the trial court deserves to be set aside. It has
been further contended that both courts below have erred in
holding that the suit property was orally gifted by the said
Mohammad Sarif to defendant No.1, merely by observing the
finding recorded in earlier suit even upon holding that the said
findings were not binding upon the plaintiff and the defendant
No.2 and no such other cogent evidence and material have
been placed on record. It has also been contended that
Tahreenama (Ex. D/4) which is alleged to have been executed
by Mohammad Sharif in favour of legal representatives of
Mohammad Daud @ Daddu ie., plaintiff and defendant No.2 on
account of non-examination of its witnesses as per the
provisions of Section 58 of the Indian Succession Act 1925 and
having failed to draw presumption of its genuineness under
Section 90 of the Indian Evidence Act, the trial court has
recorded an illegal finding. It has also been contended that the
learned First Appellate Court has erred in holding that the
plaintiff's suit is barred by limitation. Learned counsel for the
appellant would submit that during pendency of the first appeal,
appellant/plaintiff has filed an application under Order 41 Rule
27 of CPC bringing the facts assailing the genuineness of the
stand taken by the defendant, which was not decided by the
First Appellate Court though in the order sheet dated 3-2-2008, it
has been directed that the said application will be decided at the
time of the final judgment, but the judgment does not disclose
such decision upon applications filed by the plaintiff. It has been
contended by learned counsel for the appellant that the First
Appellate Court has committed illegality in deciding the
application filed under Order 6 Rule 17 CPC and Order 41 Rule
27 of the CPC, as such vitiated the entire judgment and decree
and the matter deserves to be remitted back to the trial court for
deciding the application for taking documents on record. It is
further submitted by learned counsel for the plaintiff that the
principle of justice is that the truth should be brought before the
court and effort of the Presiding Officer should be to find out the
truth as laid down in AIR 2012 SC 2010, AIR 2008 SC 2139, AIR
2009 SC 354, AIR 2019 S 2631, AIR 2016 SC 3139. It is also
contended that two contradictory views taken by the defendant
No.1 before two different forums just to obtain the favorable
relief is apparent of his malafide intent, therefore, the said
applications filed by the plaintiff should have been decided by
the trial court which has not been done by the trial court,
therefore, it is illegal.
24. It has been further contended that as per Section 107 of the
C.P.C. the appellate court has got the same power as that of the
trial court and in support of his submissions he has referred to
the judgment of Supreme Court in AIR 1931 PC 263, AIR 1957
SC 509, AIR 1969 SC 1349 and would submit that the plaintiff
has filed an application before the First Appellate Court filing the
documents from the land acquisition proceedings where the
defendant No.1, his father and his aunt had filed the application
for seeking compensation on account of land acquired as he is
the adopted son Mohd. Sharif in 1968. This fact was not
disclosed either in the earlier suit or in the present suit,
therefore, it was necessary to bring it to the notice of the learned
First Appellate Court and the contents of the written statement
submitted by the defendant are not true but they have committed
fraud, therefore, such application for amendment should have
been allowed by the First Appellate Court but it has committed
illegality in deciding the said application.
25. It has also been contended that the respondent has stressed
upon Section 13 of the Indian Evidence Act and Ex.D/7 and D/8
are admissible in evidence and the findings reached in the
earlier suit are binding upon the plaintiff and referred to the
judgment of the Hon'ble Supreme Court 1998 (3) SCC 331, AIR
1954 SC 379, AIR 1954 SC 606 holding that Section 13 of the
Evidence Act is applicable. It has also been contended by
learned counsel for the plaintiff that in the facts and
circumstances of the instant case the provisions of Section 13 of
the Evidence Act does not apply but the provisions contained
under Section 44 of the Evidence Act is applicable. In support of
his submissions, he referred to the judgment of the Supreme
Court in the case of AIR 1983 SC 684 (para 120-133 and para
140). It has also been contended that the aforesaid cited
judgment has also been referred to it by the High Court of
Karnataka in AIR 2020 Kar 55 and would submit that the
provisions of Section 13 of the Evidence is not applicable and
only Section 44 of the Evidence Act is applicable, therefore, the
judgment and decree passed in earlier suit is not binding upon
the plaintiff.
26. So far as substantial question No.1 is concerned, it has been
contended by the plaintiff that Ex. D/4 has not been challenged
in the cross examination and the contents regarding the
declaration have been deposed by Plaintiff Witness No. 1 and
Defendant Witness No. 1 in the court, but the same is not
disputed in the cross examination, therefore, Ex. D/4 is only the
declaration of admission of the right of the legal heirs of Sheikh
Daud @ Daddu which does not require to be proved by the
attesting witnesses.
27. So far as substantial question of law No. 3 is concerned, it has
been contended by learned counsel for the plaintiff that Plaintiff
Witness No. 1 and Defendant Witness No. 2 have categorically
deposed that the plaintiff remained in possession of the suit land
till 1980 and thereafter, the suit was given on rent for Rs.3,000/-
per annum and later in the month of March/April it was told by
the defendant that he has got his name mutated in the revenue
records, thereafter the notice Ex.P/3 and reply Ex.P/4 were
received in which the details of the earlier suit (Ex.D/7 and D/9)
came to the knowledge of the plaintiff and then the cause of
action arose, therefore, both the courts below have committed
illegality in deciding the suit to be barred by limitation and he
referred to the judgment of Supreme Court in AIR 2016 SC 2250
and he would submit that the appeal kindly be allowed.
28. Learned Sr. Advocate appearing for the defendant No.1 would
submit that oral gift by Mohammad Sharif in favour of defendant
No.1 Mohammad Saeed proved and gift has already been
proved in earlier suit, copy of which has been exhibited as Ex.D/
8 and D/9 and would submit that the plaintiff and the defendant
No.2 have failed to prove existence of Ex.D/4 from
oral/documentary evidence that Ex.D/4 is suspicion one and he
would submit that oral evidence is silent on the admission of sign
of Mohammad Sharif on Ex.D/4 and Ex.D/4 has not been
proved. He would further submit that recital of Ex.D/4 seems to
be a will, as per Mohammadan Law will is not required in writing
but in the Eh. D/4 sign of testator has to be proved. He would
further submit that the intention of the testator and capacity of
testator to be proved but no such evidence has been placed on
record. It has also been contended that intention of testator is
not from pleadings/oral/documentary evidence. Thus, Eh. D/4
has not been proved. This finding recorded by the trial court is
legal and justified. He would further submit that on the issue of
Eh.D/4, earlier suit was filed a copy of which the judgment and
decree Ex. D/7 to D/9, therefore, it is binding upon the parties
and to substantiate his submission, he would refer to the
judgment passed by the Hon'ble Supreme Court in case of
Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah, 1998
(3) SCC 331 and would refer to para 8 and 9 of the judgment.
He would further submit that the statement in the judgment and
decree are admissible under Section 13 of the Evidence Act and
to substantiate his submission, he would draw attention of this
court to the judgment of Supreme Court in the case of Collector
of Gorakhpur vs. Ram Sundar Mal, reported in AIR 1934 PC
157 and would also draw attention of this court towards the
judgment of Supreme Court, Law of Evidence 19th Edition by
Woodroffs and Amir Ali, and would refer to the judgment of AIR
1937 PC 69, Maharaja Sir Kesho Prasad Singh vs. Bahurin
Musammat Bhagjogna Juer. He would submit that as per
Section 13 of the Evidence Act, a judgment not inter parties is
admissible in evidence under Section 13 of the evidence as
evdience of an assertion of a right to property in dispute and
judgment rendered by the appellant in earlier suit is admissible
and could be relied upon by the defendant No.1 and in the
subsequent suit filed by the plaintiff for grant of permanent
injunction against the respondent No.1 in respect of some land
even though the plaintiff and respondents have not been made
party to the earlier suit and would vehemently argue on the
judgment rendered by Hon'ble Supreme Court in Tirupati
Tirumala Devasthanams (supra) which has been decided by
three judges of Hon'ble Supreme Court and in State of Bihar vs
Radha Krishna Singh (1983) 3 SCC 118 (3J), therefore, the
judgment rendered by the plaintiff is not binding in nature and he
would also draw attention of this court towards the judgment of
Hon'ble Supreme Court in the case of Daular Ram and another
vs. Keshav Smarak Samiti and another, reported in SCC
Online Del 4472, further, in the case of Raman Pillai Krishna
Pillai vs. Kumaran Parameshwaran, AIR 2002 Ker 133 and
in the case of Andhra Pradesh Waqf Board vs Syedm
Jalaluddin Sha reported in AIR 2005 AP 54. He would also
also draw attention of this court towards Law of Precedents in
the case of National Insurance Co. Ltd., vs Pranay Sethi
reported in (2017) 16 SCC 680 and would submit that the
discipline demanded by a precedent or the disqualification or
diminution of a decision on the application of the per incuriam
rule is of great importance, since without it, certainty of law,
consistency of rulings and comity of courts would become a
costly casualty. A decision of judgment can be per incuriam any
provision in a statute, rule or regulation, which was not brought
to the notice of the court. Therefore, he would submit that since
the judgment passed by Hon'ble Supreme Court, AIR 1983 SC
684, has not been taken into consideration in the judgment of
Supreme Court in Tirupati Tirumala Devasthanams (supra) has
same per incuriam. He would further submit that Hon'ble
Supreme Court while deciding the judgment in the case of
Tirupati Tirumala Devasthanams (supra) has followed decision
of Larger Bench judgment and would submit that High Court of
Karnataka AIR 2020 Kar. 55 has held that in Tirumala Tirupati
Devasthanam's case, the larger Bench judgment of the Hon'ble
Supreme Court in State of Bihar's case referred to supra, was
not referred to. Under such circumstances, this court has to
follow the said larger Bench judgment in State of Bihar's case
and would pray for dismissal of the appeal.
29. I have heard learned counsel for the parties and perused the
record of the courts below with utmost satisfaction.
Regarding Substantial Question of Law No. 1- Whether the
Tehreenama dated 7-2-1955 Ex.D/4 can be negated by taking
recourse to Section 58 of Indian Succession Act on account of
non-examination of attesting witness No.1?
30. The learned trial Court while deciding the issue No. 2 has relied
upon the stand taken by defendant No. 1 that the suit land has
been given to him by Md. Sharif and as per the Mohammadan
Law, oral gift Hiba is permissible, but the learned trial Court has
not examined whether the ingredients which are applicable for
valid Hiba have been placed on record or not.
31. To understand the concept of gift i.e. 'Hiba' this Court to examine
the gift under the Mahomedan Law. Chapter XI in Mulla's
Principles of Mahomedan deals with Hiba or Gift and Section
138 defines Hiba or Gift as under:-
"A hiba or gift is "a transfer of property, made
immediately, and without any exchange" by one
person to another, and accepted by or on behalf of
the latter."
32. As per the provisions of Mahomedan Law, there are three
essential ingredients of valid Hiba namely (i) declaration of the
gift by the donor i.e. to constitute a valid gift, it is necessary that
donor should digest himself completely of all ownership and
domain over the subject of the gift. His intention should be in
express and clear words. A gift cannot be implied. It must be
expressed unequivocal and intention of donor must be
demonstrated by these entire relinquishment of the things given.
The declaration should be free from all the impediments such as
inducement, threat, coercion, dures or promise and should be
made with a bonafide intention. (ii) acceptance of the gift by the
donee expressly or impliedly, and (iii) delivery of possession
either actually or constructively to the donee.
33. The gift 'Hiba' has come up for consideration before Hon'ble the
Supreme Court in Abdul Rahim (Supra), wherein it has been at
paragraphs 13, 15 to 18 & 29 as under:-
"13. The conditions to make a valid and complete
gift under the Mohammadan Law are as under:
(a) The donor should be sane and major and must
be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the
time of hiba.
(c) If the thing gifted is divisible, it should be
separated and made distinct.
(d) The thing gifted should be such property to
benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by
things not gifted; i.e. should be free from things
which have not been gifted.
(f) The thing gifted should come in the possession
of the donee himself, or of his representative,
guardian or executor.
15. We may notice the definition of gift as
contained in various text books: In Mulla's
Principles of Mohammadan Law the `HIBA' is
defined as a transfer of property made immediately
without any exchange by one person to another
and accepted by or on behalf of later (sic latter).
A.A.A. Faizee in his `Outlines of Mohammedan
Law' defined `Gift' in the following terms:
"A man may lawfully make a gift of his pro"13. The
conditions to make a valid and complete gift under
the Mohammadan Law are as under:
(a) The donor should be sane and major and must
be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the
time of hiba.
(c) If the thing gifted is divisible, it should be
separated and made distinct.
(d) The thing gifted should be such property to
benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by
things not gifted; i.e. should be free from things
which have not been gifted.
(f) The thing gifted should come in the possession
of the donee himself, or of his representative,
guardian or executor.
15. We may notice the definition of gift as
contained in various text books: In Mulla's
Principles of Mohammadan Law the `HIBA' is
defined as a transfer of property made immediately
without any exchange by one person to another
and accepted by or on behalf of later (sic latter).
A.A.A. Faizee in his `Outlines of Mohammedan
Law' defined `Gift' in the following terms:
"A man may lawfully make a gift of his property to
another during his lifetime, or he may give it away
to someone after his death by will. The first is
called a disposition inter vivos; the second a
testamentary disposition. Mohammadan Law
permits both kinds of transfers, but while a
disposition inter-vivos is unfettered as to quantum,
a testamentary disposition is limited to one-third of
the net estate. Mohammadan Law allows a man to
give away the whole of his property during his life
time, but only one-third of it can be bequeathed by
will."
16. Syed Ameer Ali in his `Commentary on
Mohammedan Law' has amplified the definition of
Hiba in the following terms:
"In other words the "Hiba" is a voluntary gift
without consideration of a property or the
substance of a thing by one person to anther so as
to constitute the donee, the proprietor of the
subject matter of the gift. It requires for its validity
three conditions viz., (a) a manifestation of the
wish to give on the part of the Donor (b) the
acceptance of the Donee either impliedly or
constructively and (c) taking possession of the
subject matter of gift by the donee either actually
or constructively."
17. In Maqbool Alam Khan vs. Mst. Khodaija &
ors. [(1966) 3 SCR 479], it was held:
"6. The Prophet has said: "A gift is not valid
without seisin". The Rule of law is:
'Gifts are rendered valid by tender, acceptance
and seisin. Tender and acceptance are necessary
because a gift is a contract, and tender and
acceptance are requisite in the formation of all
contracts; and seisin is necessary in order to
establish a right of property in the gift, because a
right of property, according to our doctors, is not
established in the thing given merely by means of
the contract, without seisin." [See Hamilton's
Hedaya (Grady's Edn.), p. 482]
7. Previously, the Rule of law was thought to be so
strict that it was said that land in the possession of
a usurper (or wrongdoer) or of a lessee or a
mortgagee cannot be given away, see Dorrul
Mokhtar, Book on Gift, p. 635 cited in Mullic
Abdool Guffoor v. Muleka. But the view now
prevails that there can be a valid gift of property in
the possession of a lessee or a mortgagee and a
gift may be sufficiently made by delivering
constructive possession of the property to the
donee. Some authorities still take the view that a
property in the possession of a usurper cannot be
given away, but this view appears to us to be too
rigid. The donor may lawfully make a gift of a
property in the possession of a trespasser. Such a
gift is valid, provided the donor either obtains and
gives possession of the property to the donee or
does all that he can to put it within the power of the
donee to obtain possession. [See also Mullic
Abdool Guffoor vs. Muleka [ILR 1884 (10) Calcutta
1112]
18. Faiz Badruddin Tyabji in his `Muslim Law - The
Personal Law of Muslims in India and Pakistan'
states the law thus:
"395. (1) The declaration and acceptance of a gift
do not transfer the ownership of the subject of gift,
until the donor transfers to the donee such seisin
or possession as the subject of the gift permits,
viz. until the donor (a) puts it within the power of
the donee to take possession of the subject of gift,
if he so chooses, or (b) does everything that,
according to the nature of the property forming the
subject of the gift, is necessary to be done for
transferring ownership of the property, and
rendering the gift complete and binding upon
himself.
(2) Imam Malik holds that the right to the subject of
gift relates back to the time of the declaration."
29. In Md. Noorul Hoda vs. Bibi Raifunnisa & ors.
[1996 (7) SCC 767], this Court held:
"6....There is no dispute that Article 59 would apply
to set aside the instrument, decree or contract
between the inter se parties. The question is
whether in case of person claiming title through the
party to the decree or instrument or having
knowledge of the instrument or decree or contract
and seeking to avoid the decree by a specific
declaration, whether Article 59 gets attracted? As
stated earlier, Article 59 is a general provision. In a
suit to set aside or cancel an instrument, a contract
or a decree on the ground of fraud, Article 59 is
attracted. The starting point of limitation is the date
of knowledge of the alleged fraud. When the
plaintiff seeks to establish his title to the property
which cannot be established without avoiding the
decree or an instrument that stands as an
insurmountable obstacle in his way which
otherwise binds him, though not a party, the
plaintiff necessarily has to seek a declaration and
have that decree, instrument or contract cancelled
or set aside or rescinded. Section 31 of the
Specific Relief Act, 1963 regulates suits for
cancellation of an instrument which lays down that
any person against whom a written instrument is
void or voidable and who has a reasonable
apprehension that such instrument, if left
outstanding, may cause him serious injury, can
sue to have it adjudged void or voidable and the
court may in its discretion so adjudge it and order it
to be delivered or cancelled. It would thus be clear
that the word `person' in Section 31 of the Specific
Relief Act is wide enough to encompass a person
seeking derivative title from his seller. It would,
therefore, be clear that if he seeks avoidance of
the instrument, decree or contract and seeks a
declaration to have the decrees set aside or
cancelled he is necessarily bound to lay the suit
within three years from the date when the facts
entitling the plaintiff to have the decree set aside,
first became known to him." {See also Sneh Gupta
vs. Devi Sarup & Ors. [2009 (2) SCALE 765]}."
34. Hon'ble the Supreme Court in Rasheeda Khatoon (Dead)
through Legal Representatives Vs. Ashiq Ali, S/o Lieutenant
Abu Mohd. (Dead) through Legal Representatives1, has held
at paragraphs 17 & 20 as under:-
"17. From the aforesaid discussion of the
propositions of law it is discernible that a gift under
the Muhammadan Law can be an oral gift and
need not be registered; that a written instrument
does not, under all circumstances require
registration; that to be a valid gift under the
Muhammadan Law three essential features
namely, (i) declaration of the gift by the donor, (ii)
acceptance of the gift by the donee expressly or
impliedly, and (iii) delivery of possession either
actually or constructively to the donee, are to be
satisfied; that solely because the writing is
contemporaneous of the making of the gift deed, it
does not warrant registration under Section 17 of
the Registration Act.
20. The real thrust of the matter, as we perceive, is
whether the essential ingredients of the gift as is
understood in the Muhammadan Law have been
satisfied. To elaborate, a deed of gift solely
because it is a written instrument does not require
registration. It can always be treated as a piece of
evidence evidencing the gift itself, but, a significant
one, that gift must fulfill the three essential
conditions so that it may be termed as a valid gift
under the Muhammadan Law."
35. For a valid gift declaration by the donor is must. This issue has
come up for consideration before Hon'ble the Supreme Court in
Illahi Shamsuddin Nadaf Vs. Sou. Jaitunbi Makbul Nadaf 2,
wherein it has been held at paragraph 6 as under:-
"6. The above-mentioned facts pleaded by the
appellant in the written statement have not been
controverted by the respondent. In the rejoinder
dated 8-1-1991 filed by the appellant in this Court
he has mentioned his age as about 56 years which
shows that he was born sometime in the year
1934-35. That was the precise time when his
mother Mehamunisa died. There is, thus, inherent
truth in the averment of the appellant that he was
brought up by his maternal grandmother like a son.
It is evident that about 30 years before the filing of
the suit Rajubai gave the first floor of the suit house
to the respondent and the ground floor to the
appellant. They have been separately and to the
exclusion of each other enjoying this property for
over 40 years. It is, thus, obvious from the fact of
1 (2014) 10 SCC 459
2 (1994) 5 SCC 476
this case that Rajubai gave her property to her
daughter and the grandson in her lifetime by
dividing the house into two parts and giving
possession of the respective parts to the two heirs.
An oral gift is perfectly valid under Mahomedan
Law. The declaration as well as acceptance of the
gift may be oral whatever may be the nature of the
property gifted. The intention on the part of Rajubai
to give the property to the two heirs is obvious by
the fact that she divided the house into two portions
and gave actual possession to both of them. The
appellant and the respondent are both living in their
respective portions for the last more than 40 years.
The mutation of the property is in their respective
names."
36. Hon'ble High Court of Patna in Maimuna Bibi & another Vs.
Rasool Mian & others3, has held at paragraph 94 & 98 as
under:-
"94. There is no doubt that under the Mahomedan
Law, an oral Hibba or gift is permissible. However,
it also well known that in order to constitute a valid
gift, the donor should divest himself completely of
all ownership and dominion over the subject of the
gift.
98. In order to constitute a valid gift, the three es-
sential ingredients are; (i) a declaration of gift by
the donor; (ii) an acceptance of the gift, express or
implied, by or on behalf of the donee; and (iii) de-
livery of possession of the subject of the gift by the
donor to the donee, vide Section 149 of the Mulla's
Principles of Mahommedan Law."
37. Hon'ble Calcutta High Court in Akbar Ali Molla & others Vs.
Sonargaon Housing Co-operative Society Ltd.4, has held at
paragraph 10 as under:-
"10. It is settled law that oral heba is permissible
under the Mohammendan law and to constitute
valid gift donor should divest himself completely of
all ownership and dominion over the subject of the
gift. The case of Maimuna Bibi and Anr. v. Rasool
Mtan and Ors., can be referred to in this context. It
is incumbent on the defendants/appellants to prove
their case of oral heba. The learned trial judge has
specifically observed in the impugned judgment that
in order to prove that oral heba made by Bibijan Bibi
in favour of her husband Dilbahar Molla the
defendants have not adduced any cogent and
reliable evidence. The oral heba, as contended by
3 1990 SCC OnLine Pat 99
4 2001 SCC OnLine Cal 525
the appellants, was made by Bibijan Bibi in favour
of Dilbahar Molla in respect of 1.36 acres of land
appertaining to suit plots 340, 341 and 342 in 1348
B.S."
38. From the above stated legal position, it is necessary for the
defendants to prove the existence of Hiba by examining the
witnesses in whose presence the donee has shown his intention
to donate the suit property in favour of defendant No. 1. It is also
required for the defendant No. 1 to prove by cogent evidence
that after declaration of intention of donee to donate the property
to defendant No. 1 and Md. Sharif has relinquished himself from
entire suit property. In the present case, the defendant No. 1 has
not filed any revenue record to establish that immediately after
alleged Hiba, Saeed has got recorded his name in the revenue
record to demonstrate that Md. Sharif has relinquished his entire
interest on the suit property. The witness examined by defendant
No. 1 has also not stated that on which date the deceased- Md.
Sharif has given the property to defendant No. 1 through oral
gift. The another ingredient for valid gift that the donee in whose
presence, defendant No. 1 has accepted the Hiba has not been
examined. As per the Mahomedan Law, written is of no
relevancy as oral gift is validly permissible, but the ingredients
for a valid gift as enumerated under the Mahomedan Law have
to be proved. The evidence adduced by the defendants does not
prove the basic ingredients of valid Hiba or gift. As such, the
finding recorded by the learned trial Court and affirmed by the
learned First Appellate Court that Md. Sharif has given the
property to defendant No. 1 is a perverse finding as the
judgment and decree passed in earlier suit is not binding upon
the appellant. The judgment and decree of the trial Court and the
Appellate Court Ex. D/8 & D/9 would clearly demonstrate that
the present plaintiff was not party to the case and the learned
trial Court while deciding the issue No. 5 whether in view of Civil
Suit No. 79A/72, the present suit is not maintainable, is decided
that the suit is maintainable. Even the learned trial Court while
deciding this particular issue at paragraph 20 has given the
consent that the suit is not affected by principle of res judicata.
The learned trial Court while recording such finding has held that
the plaintiff and defendant No. 2 were not party to the earlier
suit, therefore, for application of Section 11 of the C.P.C., the
subject matter should be similar, party should be similar and
declaration of title should be similar but these ingredients are not
applicable in the present case, since the suit is maintainable as it
does not fall within the ambit of res judicata. It is necessary to
point out that this finding was never challenged by the defendant
No. 1 by filing cross objection before the First Appellate Court as
in the First Appellate Court, they have taken stand that the suit is
barred by limitation.
(Emphasis supplied)
39. The finding rendered by the learned trial Court is in conformity
with the law laid down by Hon'ble the Supreme Court in Srihari
Hanumandas Totala Vs. Hemant Vithal Kamat & others 5,
wherein it has been held at paragraph 18 as under:-
"18. Section 11 of the CPC enunciates the rule of
res judicata : a court shall not try any suit or issue
in which the matter that is directly in issue has
been directly or indirectly heard and decided in a
'former suit'. Therefore, for the purpose of
adjudicating on the issue of res judicata it is
necessary that the same issue (that is raised in the
suit) has been adjudicated in the former suit. It is
necessary that we refer to the exercise taken up
by this Court while adjudicating on res judicata,
before referring to res judicata as a ground for
rejection of the plaint under Order 7 Rule 11.
Justice R C Lahoti (as the learned Chief Justice
then was), speaking for a two Judge bench in V.
Rajeshwari v. T.C. Saravanabava5 discussed the
plea of res judicata and the particulars that would
be required to prove the plea. The court held that it
is (2004) 1 SCC 551. necessary to refer to the
copies of the pleadings, issues and the judgment
of the 'former suit' while adjudicating on the plea of
res judicata:
"11. The rule of res judicata does not strike at the
root of the jurisdiction of the court trying the
subsequent suit. It is a rule of estoppel by
judgment based on the public policy that there
should be a finality to litigation and no one should
be vexed twice for the same cause.
5 (2021) 9 SCC 99
* * *
13. Not only the plea has to be taken, it has to be
substantiated by producing the copies of the
pleadings, issues and judgment in the previous
case. Maybe, in a given case only copy of
judgment in previous suit is filed in proof of plea of
res judicata and the judgment contains exhaustive
or in requisite details the statement of pleadings
and the issues which may be taken as enough
proof. But as pointed out in Syed Mohd. Salie
Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the
basic method to decide the question of res judicata
is first to determine the case of the parties as put
forward in their respective pleadings of their
previous suit and then to find out as to what had
been decided by the judgment which operates as
res judicata. It is risky to speculate about the
pleadings merely by a summary of recitals of the
allegations made in the pleadings mentioned in the
judgment. The Constitution Bench in Gurbux Singh
v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR
831] placing on a par the plea of res judicata and
the plea of estoppel under Order 2 Rule 2 of the
Code of Civil Procedure, held that proof of the
plaint in the previous suit which is set to create the
bar, ought to be brought on record. The plea is
basically founded on the identity of the cause of
action in the two suits and, therefore, it is
necessary for the defence which raises the bar to
establish the cause of action in the previous suit.
Such pleas cannot be left to be determined by
mere speculation or inferring by a process of
deduction what were the facts stated in the
previous pleadings. Their Lordships of the Privy
Council in Kali Krishna Tagore v. Secy. of State for
India in Council [(1887-88) 15 IA 186 : ILR 16 Cal
173] pointed out that the plea of res judicata
cannot be determined without ascertaining what
were the matters in issue in the previous suit and
what was heard and decided. Needless to say,
these can be found out only by looking into the
pleadings, the issues and the judgment in the
previous suit."
(emphasis supplied)
40. Again Hon'ble the Supreme in Jamia Masjid Vs. Sri. K.V.
Rudrappa (Since Dead) by Legal Representatives & others 6,
it has held at paragraph 18 & 19 as under:-
"18. In order to attract the principles of res
judicata, the following ingredients must be fulfilled:
6 (2022) 9 SCC 225
(i) The matter must have been directly and
substantially in issue in the former suit;
(ii) The matter must be heard and finally decided
by the Court in the former suit;
(iii) The former suit must be between the same
parties or between parties under whom they or any
of them claim, litigating under the same title; and
(iv) The Court in which the former suit was
instituted is competent to try the subsequent suit or
the suit in which such issue has been
subsequently raised.
19. In Syed Mohd. Salie Labbai (dead) by L.Rs v.
Mohd. Hanifa (dead) by L.Rs 14, Justice S
Murtaza Ali speaking for a Bench of two judges
observed that before a plea of res judicata can be
given effect, the following conditions must be
proved:
"7... "(1) that the litigating parties must be the
same;
(2) that the subject-matter of the suit also must be
identical;
(3) that the matter must be finally decided between
the parties; and
(4) that the suit must be decided by a court of
competent jurisdiction."
The Court noted that "the best method" to decide
the question of res judicata is first to determine the
case of the parties as they are put forward in their
respective pleadings of their previous suits, and
then to find out as to what had been decided by
the judgments which operate as res judicata. In
that case, it was held that the judgment in the
previous suit was confined to two points:
(i) The plaintiffs claimed certain rights for the
performance of ceremonies in the properties and a
share in the income accruing to the mosque from
the worshipers; and
(ii) A claim, insofar as the graveyard was
concerned for receiving pit fees for burials.
Consequently, it was held that the Trial court had
not decided upon either the public character of the
mosque or the mode and manner or the effect of
the dedication of the site for the purpose of the
mosque or the graveyard."
41. Therefore, so far as legal provision is concerned, it is not
disputed that the judgment decided by larger bench will be
binding effect. Law with regard to binding effect of larger Bench
has come up for consideration before the Hon'ble Supreme
Court in the case of Trimurthi Fragrances (P) Ltd., through its
Director Shri Pradeep Kumar Agrawal Vs. Government of
N.C.T. of Delhi, through its Principal Secretary (Finance)
and others7 wherein, the Hon'ble Supreme Court has held at
paragraph 27, 28 & 29 as under:-
"27. It may be mentioned that a Constitution Bench
of this Court in a judgment reported as Central
Board of Dawoodi Bohra Community and Anr.
v.State of Maharashtra and Anr.19 quoted from
the earlier Constitution Bench judgment in Union
of India and Anr. v. Raghubir Singh (Dead) By Lrs.
Etc.20and held as under:
"10. Reference was also made to the doctrine of
stare decisis. His Lordship observed by referring to
Sher Singh v. State of
Punjab [(1983) 2 SCC 344 : 1983 SCC (Cri) 461]
that although the Court sits in divisions of two and
three Judges for the sake of
convenience but it would be inappropriate if a
Division Bench of two Judges starts overruling the
decisions of Division Benches of three. To do so
would be detrimental not only to the rule of
discipline and the doctrine of binding precedents
but it will also lead to inconsistency in decisions on
points of law; consistency and certainty in the
development of law and its contemporary status --
both would be immediate casualty.
xxx xxx
12. Having carefully considered the submissions
made by the learned Senior Counsel for the
parties and having examined the law laid down by
the Constitution Benches in the abovesaid
decisions, we would like to sum up the legal
position in the following terms:
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding
on any subsequent Bench of lesser or coequal
strength.
(2) A Bench of lesser quorum cannot disagree or
dissent from the view of the law taken by a Bench
of larger quorum. In case of doubt all that the
Bench of lesser quorum can do is to invite the
attention of the Chief Justice and request for the
matter being placed for hearing before a Bench of
larger quorum than the Bench whose decision has
come up for consideration. It will be open only for
a Bench of coequal strength to express an opinion
doubting the correctness of the view taken by the
earlier Bench of coequal strength, whereupon the
7 2022 SCC OnLine SC 1247
matter may be placed for hearing before a Bench
consisting of a quorum larger than the one which
pronounced the decision laying down the law the
correctness of which is doubted.
(3)..........................."
28. The conclusion (1) is that a decision delivered
by a Bench of largest strength is
binding on any subsequent Bench of lesser or
coequal strength. It is the strength of the Bench
and not number of Judges who have taken a
particular view which is said to be relevant.
However, conclusion (2) makes it absolutely
clear that a Bench of lesser quorum cannot
disagree or dissent from the view of
law taken by a Bench of larger quorum. Quorum
means the bench strength which was hearing the
matter.
29. Thus, it has been rightly concluded that the
numerical strength of the Judges taking a
particular view is not relevant, but the Bench
strength is determinative of the binding nature of
the Judgment."
42. While considering the facts of the present case, it is quite vivid
that defendant No. 1 has given consent that the suit is not
barred by res judicata, which was never subject to challenge
even in the second appeal also, therefore, the defendant No. 1
cannot somersault and now take entire different stand. On the
above background, substantial question of law, deserves to be
answered in favour of the appellant by recording a finding that in
view of Section 58 of the Indian Succession Act, the learned
Courts below have erred in negative the Tahirnama as Section
58 clearly provides that the provisions of Chapter 6 of
Succession Act i.e. testamentary succession so far as
Mohammadan is concerned, the same will not be governed by
the provisions of this Chapter. Section 58 of the Indian
Succession Act is extracted below:-
"Section 58- General application of Part.-- (1)
The provisions of this Part shall not apply to
testamentary succession to the property of any
Muhammadan nor, save as provided by section
57, to testamentary succession to the property of
any Hindu, Buddhist, Sikh or Jaina; nor shall they
apply to any Will made before the first day of
January, 1866.
(2) Save as provided in sub-section (1) or by any
other law for the time being in force, the provisions
of this Part shall constitute the law of 1[India]
applicable to all cases of testamentary
succession."
Regarding Substantial Question of Law No. 2- Whether the
omission to decide the applications filed under Order 6 Rule 17
of CPC and Order 41 Rule 27 of CPC has vitiated the entire
judgment and decree?
43. 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.8, wherein Hon'ble the Supreme Court has held
at paragraph 13 to 17 as under:-
"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
8 (2008) 8 SCC 511
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. "
44. Hon'ble the Supreme Court in Shalimar Chemical Works
Limited Vs. Surendra Oil & Dal Mills (Refineries) & others 9,
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."
45. Hon'ble the Supreme Court in Corporation of Madras &
another Vs. M. Parthasarathy & others 10 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
9 (2010) 8 SCC 423
10 (2018) 9 SCC 445
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 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."
46. Hon'ble Supreme Court in the case of Sanjay Kumar Singh vs.
The State of Jharkhand (Civil Appeal No 1760 of 2022
decided on 10-3-2022) in para 4 has held as under.
"4. It is true that 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 41 Rule
27 CPC enables the appellate court to take
additional evidence in exceptional circumstances. It
may also be true that the appellate court may permit
additional evidence if the conditions laid down in this
Rule are found to exist and the parties are not
entitled, as of right, to the admission of such
evidence. However, at the same time, 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. Even, one of the circumstances in which
the production of additional evidence under Order
41 Rule 27 CPC by the appellate court is to be
considered is, whether or not the appellate court
requires the additional evidence so as to enable it to
pronouncement judgment or for any other
substantial cause of like nature. As observed and
held by this Court in the case of A. Andisamy
Chettiar v. A. Subburaj Chettiar, reported in
(2015) 17 SCC 713, 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. It is further
observed that 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".
47. Now so far as amendment is concerned, the appellant has
moved an application to plead certain facts which were not
within his knowledge, but from the records, it is evident that
defendant No. 4 to 11 have taken additional pleadings wherein
they have made certain pleadings with regard to dubious
conduct of defendant No. 1, but the trial Court has not framed
any issues as such, when the plaintiff has again moved an
application for amendment, the learned First Appellate Court
should have decided the same, but has committed illegality in
not deciding the application for amendment as well. Hon'ble
Supreme Court in the case of Life Insurance Corporation of
India vs. Sanjeev Builders Private Limited and another 11 in
paras 19 and 20 has examined power of the Court to consider
the amendment in the pleading and has held as under.
"19. It is well settled that the court must be extremely
liberal in granting the prayer for amendment, if the
court is of the view that if such amendment is not
allowed, a party, who has prayed for such an
amendment, shall suffer irreparable loss and injury.
It is also equally well settled that there is no absolute
rule that in every case where a relief is barred
because of limitation, amendment should not be
allowed. It is always open to the court to allow an
amendment if it is of the view that allowing of an
amendment shall really sub-serve the ultimate cause
of justice and avoid further litigation. In L.J. Leach &
Co. Ltd. & Anr. v. Jardine Skinner & Co., AIR 1957
SC 357, this Court at paragraph 16 of the said
decision observed as follows:
"16. It is no doubt true that courts would, as a rule,
decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on the
date of the application. But that is a factor to be taken
into account in exercise of the discretion as to
whether amendment should be ordered, and does
not affect the power of the court to order it, if that is
required in the interest of justice....."
20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N.
Electricity Board & Ors., (2004) 3 SCC 392, this
Court observed as follows:
"2. .....The law as regards permitting amendment to
the plaint, is well settled. In L.J. Leach and Co. Ltd. v.
Jardine Skinner and Co. [AIR 1957 SC 357 : 1957
SCR 438] it was held that the Court would as a rule
decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on the
date of the application. But that is a factor to be taken
into account in exercise of the discretion as to
whether amendment should be ordered, and does
not affect the power of the court to order it.
3. It is not disputed that the appellate court has a
coextensive power of the trial court. We find that the
11 2022 SCC Online SC 1128
discretion exercised by the High Court in rejecting the
plaint was in conformity with law."
48. As such, the substantial question of law is answered in favour of
the plaintiff by directing that the additional document under
Order 47 Rule 27 of C.P.C. and the application for amendment
filed under Order 6 Rule 17 of CPC are allowed and the
documents will be taken on record and the amendment is also
allowed. The plaintiff will incorporate the amendment in the plaint
and liberty is also granted to the defendants to file additional
documents in their support and also to amend their pleadings.
Regarding substantial question of law No. 3- Whether the
lower appellate Court erred in holding that the plaintiff's suit is
barred by time, by reversing the findings of the trial court in this
regard?
49. The learned trial Court while deciding issue No. 6 has given
reason that the plaintiff has mentioned cause of action in the
year 1990 and also exhibited Ex. P/2 paper cutting dated
27.08.1990 and also sought declaratory relief with possession,
which was not rebutted by the defendants and has given a
finding that the suit is within limitation. The learned First
Appellate Court while partly allowing the cross objection of
defendant No. 1 has held that the suit is barred by limitation
without assigning any reason, which suffers from perversity and
illegality as the judgment passed by the Court should meet the
requirement of recording of reasons with higher degree of
satisfaction and the requirement of stating reason for judicial
orders necessarily does not mean very detailed or lengthy order,
but there should be some reasoning recording for declining or
granting relief. In absence of any reason, the finding of the First
Appellate Court that the suit is barred by limitation, is set aside.
This finding of the First Appellate Court regarding suit to be
barred by limitation without any reason is against the judgment
passed by Hon'ble the Supreme Court in the case of Assistant
Commissioner, Commercial Tax Department, Works
Contract and Leasing, Kota Vs. Shukla and Brothers12, has
held in paragraph 18 & 19 as under:-
"18. In State of Maharashtra v. Vithal Rao Pritirao
Chawan [(1981) 4 SCC 129], while remanding the
matter to the High Court for examination of certain
issues raised, this Court observed:
"2. .....It would be for the benefit of this Court that a
speaking judgment is given".
19. In the cases where the Courts have not recorded
reasons in the judgment, legality, propriety and
correctness of the orders by the Court of competent
jurisdiction are challenged in absence of proper
discussion. The requirement of recording reasons is
applicable with greater rigor to the judicial
proceedings. The orders of the Court must reflect
what weighed with the Court in granting or declining
the relief claimed by the applicant. In this regard we
may refer to certain judgments of this Court."
50. Considering the facts and circumstances of the case and the
material placed on record, the substantial question of law No. 3
deserves to be and is answered in favour of the plaintiff.
51. Accordingly, the appeal deserves to be and is allowed in part
and the judgment and decree passed by the learned trial Court,
affirmed by the First Appellate Court and the cross objection filed
by defendant No. 1, are set aside. The matter is remitted back to
the learned trial Court to decide except issue No. 5 afresh with
following directions:-
(1) The learned trial Court will allow the
documents to be taken on record filed by the
plaintiff along with application under Order 41
Rule 27 of C.P.C. The amendment as sought in
the application filed befoe the First Appellate
Court will also be allowed to be incorporated.
The defendants will also be given liberty to file
additional document, if so advised and also
liberty to file amendment application in their
written statement. The documents taken on
record, does not mean that this Court has
examined the correctness and genuineness of
the documents and it is for the trial Court to
examine it and to decide it.
12 (2010) 4 SCC 785
(2) Since this Court has given finding that the
finding recorded by the trial Court regarding gift
is not proved as the judgment and decree of
earlier suit Ex. P/8 & P/9 is not binding upon the
plaintiff. The defendants are free to prove the
plea of gift afresh by recording evidence in
accordance with law.
(3) Since this Court has also recorded finding
that Tahrinama cannot be negatived by this
Court in view of Section 58 of the Succession
Act. Its affect shall be considered by the trial
Court as per the evidence, material placed on
record after remand of the matter.
(4) Since the matter is quite old, it is directed that
the learned trial Court shall make an endeavour
to complete the trial within outer limit of one and
half hear from the date of first date of
appearance.
(5) The parties are directed to appear before the
trial Court on 2nd March, 2023.
(6) The record be sent forthwith.
(7) It is also directed to Registry of this Court,
since it is old case, the record of the case, shall
be preserved by scanning and along with original
record, scanned record be also sent to the trial
Court.
52. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
