Gulab Singh Age 45 Yrs vs Kuldeep Singh S/O Munshi Singh R/O ...
2024 Latest Caselaw 177 j&K

Jammu & Kashmir High Court

Gulab Singh Age 45 Yrs vs Kuldeep Singh S/O Munshi Singh R/O ... on 19 February, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                      Serial No. 37


 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU

Case:-   OW104 No. 20/2014
         IA No. 27/2014

  1. Gulab Singh Age 45 yrs
  2. Prem Singh Age 50 yrs
  3. Jagdev Singh age 37 yrs

      All sons of Gulwant Singh R/o Halqa Tokerian Tehsil and District
      Jammu.

                                         .....Appellant(s)/Petitioner(s)

                Through: Mr. Surinder Singh, Advocate.

              Vs

      Kuldeep Singh S/o Munshi Singh R/o Galbadey
      ChakTehsil and District Jammu
                                                   ..... Respondent(s)

                Through: Mr. P. S. Parmar, Advocate.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                             JUDGMENT

(19.02.2024)

(ORAL)

01. The petitioners have invoked the Supervisory Jurisdiction

of this Court enshrined in Article 227 of the Constitution of

India while seeking quashment of order dated 10.01.2014

(for short "the impugned order") passed by the court of

Additional District Judge, Jammu (for short "the appellate

court") upon an application filed under Order 41 Rule 27

C.P.C by the petitioners herein for leading additional

evidence in the appeal filed by the petitioners herein arising

out of judgment and decree dated 13.04.2011 passed by

the court of 2nd Additional Munsiff, Jammu (for short "the

trial court") in civil suit titled as "Kuldeep Singh Vs Gulab

Singh and Ors."

02. Facts emerging from the record would reveal that the

plaintiff-respondent herein obtained a judgment and decree

dated 13.04.2011 in the suit (supra) for permanent in

injunction filed against the defendants-petitioners in

respect of land measuring 02 Marlas covered under

Survey No. 91 min Khata No. 55 Khewat No. 27 situated

at Mud Tehsil and District Jammu.

03. Aggrieved of the judgment and decree dated 13.04.2011,

the defendants-petitioners herein preferred civil first

appeal before the appellate court and during its pendency

filed an application under Order 41 Rule 27 C.P.C for

leading additional evidence stating therein that in the

suit during its trial, both the plaintiff as well as

defendants led their respective evidence, however, the

plaintiff-respondent herein did not prove the proper

description and location of the land in question being

subject matter of the suit claimed to have been

purchased by him from one Vijay Kumar through sale

deed dated 30.11.2004 and that instead one Lal Chand

Gandotra from whom the father of the defendants-

petitioners herein purchased the land in dispute had

deposed before the trial court while appearing as the

witness of the defendants-petitioners herein that he had

purchased the land in question from one Sardu Ram

Batwal in the year 1982 where he was running a school

and upon purchase of another land for School, he sold

the land in question to the father of the defendants-

petitioners herein where they started construction of

shops, but could not complete the same and that the said

statement of Lal Chand Gandotra came to be coraborated

by Vijay Kumar who had sold the land in question to the

plaintiff-respondent herein and that the trial court

decided issues (1) & (3) together in favour of the plaintiff-

respondent herein holding the plaintiff-respondent herein

to be in possession of the land in question on the basis of

sale deed which was never proved and exhibited and that

the plaintiff-respondent herein failed to get the land in

question demarcated by the revenue authorities despite

having filed a suit thereto before Director Land Records

inasmuch as an application for demarcation of the land

in dispute and that the appellants-petitioners herein

could not produce the revenue officials to prove that the

land in question does not fall in Survey No. 91 but falls

under Survey Nos. 92 & 97 and, thus, additional

evidence for establishing the said fact is necessitated

which evidence would in the process enable the court to

pronounce judgment as the judgment of the trial court

suffers from inherent lacuna and defects.

04. The appellate court upon considering the said application

filed by the appellants-petitioners herein after inviting

objections from the plaintiff-respondent herein in terms

of the impugned order dismissed the same holding that

the application does not fall within the purview of Order

41 Rule 27 C.P.C for adducing additional evidence.

05. The petitioners herein being appellants before the

appellate court have questioned the impugned order on

multiple grounds fundamentally on the ground that the

impugned order passed by the appellate court on the face

of it is incorrect having been passed without, application

of mind and going through the material on record

overlooking the law and the facts, thus, in the process

having resulted into failure of justice.

Heard learned counsel for the parties and perused the

record.

06. Before proceeding to address to the issues raised by the

petitioners in the instant petition, it would be relevant

and significant to refer hereunder to the provisions of

Order 41 Rule 27 C.P.C being relevant and germane

herein:-

"27. Production of additional evidence in Appellate Court -(1) The

parties to an appeal shall not be entitled to produce additional

evidence, whether oral or documentary, in the Appellate Court. But if -

(a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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

(b) The Appellate Court requires any document to be produced or any witness to the examined to enable it to pronounce judgment, or for any other substantial cause,

The appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

A bare perusal of the aforesaid provisions tends to show

that sub rule (1) of Rule 27 begins with a negative

condition that viz "the parties to an appeal shall not

be entitled to produce additional evidence, whether

oral or documentary, in the appellate court" clearly

suggesting the legislative intent and as a general rule,

providing that an appellate court should decide an appeal

on the evidence led by the parties before the trial court

and should not admit additional evidence in the appeal.

The said sub rule (1) of Rule 27 has to be read conjointly

with Section 107 (1) (a) C.P.C which requires the

appellate court to determine a case finally, whereas Order

41 Rule 24 as well enjoins upon the appellate court to

determine the case finally where evidence on record is

sufficient for such determination.

Thus, what emerges from the above provisions of Code of

Civil Procedure is that normally an appellate court

should not allow additional evidence to be produced and

decide an appeal on the basis of the material on record.

07. Having laid down general rule supra as to the leading of

additional evidence in negative form, yet said Order 47

Rule (27) proceeds to carve out an exceptions and

enumerates the circumstances in which an appellate

court can permit leading of additional evidence under

clause (a), (aa) or (b) of sub rule (1) of Rule 27.

Clause (a) of Rule 27 (1) of Order 41 declares that

where the trial court has refused to admit evidence

which was tendered and which ought to have been

admitted, the appellate court may admit such

evidence at the appellate stage. Thus, suggesting that

before admitting additional evidence under the said

clause (a), the appellate court must be satisfied with

the trial court was unjustified in refusing to admit

such evidence.

Clause (aa) (1) of Rule 27 allows a party to adduce

additional evidence, if party, establishes that it was

unable to produce such evidence in the trial court in

spite of due diligence or best efforts on his part.

Thus, postulating that a party has to establish to the

satisfaction of the appellate court that in spite of due

diligence, it could not produce the evidence which is

now sought to be produced in the appeal.

Clause (b) of sub rule (1) of Rule 27 of Order 41

covers the cases wherein the appellate court may

itself require additional evidence (production of

document or examination of witness) either for

pronouncement of judgment or for any other

substantial cause. Thus, what emanates from the

plain reading of clause (b) supra is that the power of

the appellate court to allow a document to be

produced or a witness to be examined is related to

those cases where the appellate court finds it

necessary to pronounce judgment (or for any other

substantial cause).

It also emanates from clause (b) supra that one of the

grounds available to the appellate court to allow

additional evidence in appeal is to enable it to

pronounce judgment. The Apex Court while dealing

with this clause of clause (b) supra in case titled as

"Mahavir Singh & Ors. Vs Naresh Chandra & Anr."

reported in 2001 (1) SCC 309 held that a mere

difficulty in coming to a decision is not sufficient to

admit additional evidence.

Under clause (b) supra, the appellate court can also

admit additional evidence for any other substantial

cause which expression "for any other substantial"

cause has been held to be read with the word

"requires" in the beginning of clause (b) of Rule 27

clause (1) as has been laid down by the Apex Court in

case titled as "Kessowji Issur Vs The Great Indian

Peninsula Railway Company" reported in (1907)

BOMLR 671.

08. Before proceeding further in the matter it would be

appropriate to refer to a judgment of the Apex Court in

case titled as "Union of India Vs Ibrahim Uddin & Anr."

reported in (2012) 8 SCC 148 pertaining to Order 41

Rule 27 wherein following has been observed held at

paras 47 & 49 as under:-.

"48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court."

09. Keeping in mind the aforesaid position of law and

reverting back the case in hand, the application filed by

the appellants-petitioners herein before the appellate

court seeking leave of the appellate court to lead

additional evidence assume a significance and since the

said application is relevant to the controversy and issues

involved and raised in the instant petition, the said

application is extracted and reproduced hereunder:-

"1. That respondent/plaintiff filed a suit for permanent prohibitory injunction against the appellants restraining them from raising any sort of construction or causing any sort of interference or encroaching upon the land of respondent/plaintiff measuring 2 marlas falling khasra no. 91 min khata no. 55 and khewat no. 27 situated at Marh Tehsil and district Jammu.

2. That the respondent/plaintiff filed the suit on the basis of a sale deed executed in his favour by Vijay Kumar S/o Rattan Lal in respect of land measuring 2 marlas comprising khasra no. 91 min the appellants appeared before the court below and filed their written statement by submitting that plaintiff was not in possession of the land in dispute which is under the peaceful physical possession of the appellants from the last 25 yrs and the land under dispute falls under khasra no. 92 and 97, which has been covered by pacca 4 wals and gate has been installed thereon, the sale deed executed by Vijay Kumar in favour of respondent/plaintiff is without any description of the plot of 2 marlas and tatima.

3. That the appellants /defendants have specifically submitted in the written statement that land in dispute has been purchased by them from Lal Chand Gandotra where he was running a Academy and when he shifted the Academy from that place, father of the appellants purchased said land in 1992.

4. That respondent also filed an application before the Naib Tehsildar for demarcation of land in dispute and also filed the suit before the Director Land Record Jammu and without getting the land in dispute demarcated the respondent/plaintiff filed the suit in the court below.

5. That the ld. Court below framed issues and issue no. 3 was whether suit land actually comprised under survey no. 92/97 and same is in continuous possession defendants from the last 25 yrs.'

6. That both the parties lead evidence and the plaintiff /respondent could not prove the proper description and location of the land purchased by him from Vijay Kumar through sale deed registered on 30-11-2004.

7. That the Kuldeep Singh respondent could not identify the land purchased by him from Vijay Kumar while making his statement in the court nor land purchased by him has been properly described in the sale deed and tatima, where as the Lal Chand Gandotra from whom the father of the appellants purchased land in dispute, he

specifically stated in the court below that he purchased land in dispute from Sardu Ram Batwal in the year 1982 where he was running a school and when he purchased another land for School he sold the land in dispute to the father of appellants where he starred construction of shops but could not complete the same because he fell ill.

8. That the statement of the Lal Chand Gandotra has been coraborated by Vijay Kumar who allegedly executed sale deed in favour of the respondent in respect of land indispute.

9. That the ld. Trial Court decided issue no. 1 and 3 jointly and held the plaintiff/respondent in possession of the land on the basis of the sale deed which has not been proved and exhibited under the provisions of the Evidence Act.

10. That the trial court has wrongly held that plaintiff is able to prove that he is owner in possession of suit land by virtue of duly registered sale deed.

11. That since the plaintiff/respondent failed to get the land in dispute demarcated by the revenue authorities despite the fact that he filed suit before the Director Land Record and an application before the Tehsildar for demarcation of the land in dispute and the appellants defendants could not produced the Revenue Official to prove that land under dispute does not fall in khasra no. 91 but falls under khasra no. 92 and 97 the appellants are seeking admission of additional evidence in order to establish that land under dispute falls under khasra no. 92 and 97 and not under khasra no. 91, which the appellants could adduced before the trial court.

12. That the evidence sought to be adduced is otherwise necessary for enabling this Hon'ble Court to pronounce judgement because the evidence recorded by the trial court suffers from inherent lacuna and defects. therefore this Hon'ble court will not be able to pronounce judgement on the material before it without taking into consideration the additional evidence sought to be produced.

13. That no prejudice will cause to the respondent/plaintiff because he would have an opportunity to rebut such additional evidence. The additional evidence sought to be adduced by appellants will be relevant for determination of issue no. 3 framed by the trial court.

An affidavit in support of application is attached herewith.

It is therefore prayed that application of the appellants be allowed and they may be allowed to lead additional evidence by producing Patwari Halka Marh as witness to prove issue no. 3 framed by the trial court whether land in dispute actually falls under khasra no. 92 and 97 is in physical continuous possession of appellants/defendants.

What emerges from a plain reading of the aforesaid

application is that the appellants-petitioners have not

anywhere spelt out in the application that the trial court

refused to admit evidence which they intended to adduce

before it, thus, excluding the case of the appellants-

petitioners herein from the purview of clause (a) sub rule

(1) of Rule (27) of Order 41.

Further closer examination of the application (supra) also

tends to show that the appellants-petitioners herein have

no where stated therein that notwithstanding the exercise

of due diligence the evidence which is sought to be

produced was not within their knowledge or could not after

the exercise of due diligence produced at the time when the

decree/appealed against was passed, thus, bringing out the

case of the appellants-petitioners herein outside the

purview of clause (aa) of sub rule (1) of Rule (27) of Order

41.

10. Insofar as the applicability of clause (b) of sub rule (1) of

Rule (27) of Order 41 is concerned, though appellate

court has not recorded and returned any finding thereto

that it did not require the additional evidence in the

matter to enable it to pronounce judgment or for any

other substantial cause, yet having regard to the nature

of suit filed by the plaintiff-respondent herein, the issues

framed therein the said suit and the evidence led both by

the plaintiff-respondent herein as also the defendants-

petitioners herein, the plaintiff-respondent herein has

proved by credible evidence issues pertaining to the issue

of owner in possession of suit land by virtue of sale deed

dated 30.11.2004, whereas on the contrary the

defendants-petitioners herein failed to prove issue (3)

onus whereof was upon them to prove that the suit land

actually comprised under Survey Nos. 92 & 97 and that

the suit land was in their continuous possession from the

last 25 years. No documentary evidence has been

produced by the defendants-petitioners herein to discard

the evidence led by the plaintiff-respondent herein qua

the ownership of land in question except the statement of

Lal Chand Gandotra from whom the defendants-

petitioners herein claim to have been purchased the land

and who in turn claimed to have purchased the land from

one Sardu Ram Batwal.

Thus, it is evident that the defendants-petitioners herein

have failed to produce any clinching documentary

evidence to prove that they are the owners of the land or

else that the land owned and possessed by the plaintiff-

respondent herein pursuant to the sale deed dated

30.11.2004 falls under Survey Nos. 92 & 97 instead of

Survey No. 91 min. In presence of such clinching

documentary evidence led by the plaintiff-respondent

herein and there being no such evidence in rebuttal

thereto produced by the defendants-petitioners herein,

the case of the petitioners cannot said to be falling even

under clause (b) of sub rule (1) of Rule (27) of Order 41

where under it could be said that the appellate court

would itself require the additional evidence (production of

document or examination of witness) either for

pronouncement of judgment or for any other substantial

cause.

11. For what has been observed, considered and analyzed

hereinabove, this Court is not inclined to exercise

Supervisory Jurisdiction enshrined in Article 227 of the

Constitution of India in the instant case and to interfere

with the impugned order dated 10.01.2014. Resultantly,

petition fails and is, accordingly, dismissed.

(JAVED IQBAL WANI) JUDGE JAMMU 19.02.2024 Bunty Whether the order is speaking: Yes

Whether the order is reportable: Yes