Karnataka High Court
Motilal S/O Imanna Kalal vs Shri.Mehaboob S/O Mohammadgouse ... on 3 April, 2024
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RFA No. 100361 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100361 OF 2017 (DEC/INJ)
BETWEEN:
1. MOTILAL S/O. IMANNA KALAL
AGED: 65 YEARS, OCC: BUSINESS,
R/O: P.NO.16/A, BESIDES DARGAH
BHAIRIDEVARAKOPPA,
P.B. ROAD, HUBBALLI. PIN:580023.
2. MOHAMMAD RAFIQ S/O. MASTANSAB BIJALIKHAN
AGED: 57 YEARS, OCC: BUSINESS,
R/O: P.NO.16/A, BESIDES DARGAH
BHAIRIDEVARAKOPPA,
P.B. ROAD, HUBBALLI. PIN:580023.
...APPELLANTS
Digitally signed
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
by SAMREEN
AYUB SRI VISHWANATH HEDGE AND SRI G.I. GACHCHINAMATH,
DESHNUR
Location: ADVOCATES)
HIGH COURT
OF
KARNATAKA
AND:
1. SHRI.MEHABOOB
S/O. MOHAMMADGOUSE NIPPANI
A/A: 58 YEARS, OCC: BUSINESS,
R/O: HOUSE NO.50,
4TH MAIN ROAD, RAJATGIRI,
DIST: DHARWAD-580001.
2. GOVERNMENT OF KARNATAKA
REPRESENTED BY DEPUTY COMMISSIONER,
D.C. COMPOUND, DHARWAD.
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RFA No. 100361 of 2017
3. SPECIAL LAND ACQUISITION OFFICER,
K.R.D.C.L.H.D.B.R.T.S., RAYAPUR, DHARWAD.
4. THE EXECUTIVE ENGINEER
KRDCL PLANNING OFFICER,
HUBBALLI, DHARWAD.
5. THE MANAGING DIRECTOR,
KARNATAKA ROAD DEVELOPMENT
CORPORATION LIMITED,
16/J MILLER TANK, BED AREA,
THIMMAIAH ROAD CROSS,
BEHIND AMBEDKAR BHAVAN,
BENGALURU-560052.
...RESPONDENTS
(BY SRI. K.L. PATIL AND SRI. S.A. SANDUR, ADVOCATES FOR
R1; SRI. ASHOK T. KATTIMANI, AGA FOR R2;
SRI. C.V. ANGADI, ADVOCATE FOR R3 TO R5)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF CPC, PRAYING CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT AND DECREE DATED:29.08.2017 PASSED IN
O.S.NO. 350/2014 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALI AND CONSEQUENTLY THE SUIT OF THE
PLAINTIFF BE DISMISSED WITH COST AND COST OF THE
APPEAL MAY KINDLY BE AWARDED IN FAVOUR OF
DEFENDANTS NO. 5 AND 6/APPELLANTS AND AGAINST
RESPONDENT NO.1/PLAINTIFF ALONG WITH SUCH OTHER
RELIEF AS THIS COURT DEEMS FIT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant Nos.1 and 2 being defendant Nos.6 and 5
respectively in O.S.No.350/2014 on the file of the I
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Additional Senior Civil Judge, Hubballi (for short,
hereinafter referred to as 'Trial Court'), have preferred this
appeal being aggrieved and dissatisfied by the judgment
and decree passed in the said suit dated 29.08.2017.
2. Parties to this appeal are referred to as per
their respective ranks so described in the cause title
mentioned in the Trial Court records.
Brief and relevant facts as set out in the plaint are
as under:
3. That plaintiff by name Mehboob S/o.
Mohammadgouse Nippani filed the suit against the
defendants seeking relief of declaration to declare, that he
is the absolute owner in possession of land measuring 7
guntas 41 annas consisting of one AC Sheet shed
measuring 51.11 Square meters situated in Municipal
Ward No.24 and Municipal No.260/16 situated in Sy.
No.260 Hissa 2B/1 Block of Bhairidevarkoppa village,
Hubballi. Morefully described in the schedule appended to
the plaint. The plaintiff described the suit schedule
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property in the schedule appended to the plaint with
boundaries as under:
"East :Other's property and Petrol Pump,
West :Remaining property of same survey No.
North :Property of Kalal and Bijalikhan
South:Hubli Dharwad main Road (P.B. Road)
As shown in the plaint hand sketch map."
3.1. The plaintiff also has sought permanent
injunction directing the defendant Nos.1 to 4 not to
release the compensation amount in favour of defendant
Nos.5 and 6 with regard to the land so acquired situated in
the suit schedule property, so also restrain defendant
Nos.5 and 6 from interfering with acquisition proceedings
of the land and also restraining them from interfering with
his peaceful enjoyment of the suit schedule property.
3.2. It is the case of the plaintiff that, he is in
possession and enjoyment of the suit schedule property
having purchased the said property for a valuable
consideration of Rs.40,21,000/- under registered sale deed
dated 15.12.2012. Accordingly, his name came to be
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entered in the revenue records. It is his further case that,
the defendant No.2 being the Special Land Acquisition
Officer, acquired the land belongs to the plaintiff and in
turn defendant No.3 i.e., Bus Rapid Transit System
(BRTS), State Government undertaking represented by its
Managing director being beneficiary started widening the
road into four lane including the property of the plaintiff
which is acquired. According to the plaintiff, defendant
No.2 though acquired the land belongs to the plaintiff, but
has not disclosed to what extent the land belongs to
plaintiff was acquired. Plaintiff issued a notice to
defendant No.3 on 25.02.2014 calling upon him to disclose
the area being acquired belongs to the plaintiff. But,
defendant No.3 did not respond to the said notice.
3.3. It is further stated that, the defendant No.3
issued notice to the plaintiff, and called upon to attend the
meeting with defendant Nos.5, 6 and Deputy
Commissioner, Dharwad i.e., defendant No.1 on
12.12.2013 and 06.02.2014. These defendant Nos.5 and
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6 though they are not concerned to the suit schedule
property, but they are showing their high handed illegal
acts and claiming their rights, title and interest in the suit
schedule property. Defendant Nos.2 to 4 have not taken
any steps on the notice so issued by the plaintiff.
Defendant Nos.5 and 6 who are no way concerned to the
suit schedule property are asserting their right in the
property. They are unnecessarily interfering with the
possession and enjoyment of the suit schedule property by
the plaintiff and making hectic attempts to get release the
compensation amount towards the land being acquired
belongs to the plaintiff. Therefore, plaintiff was constrained
to file the present suit.
3.4. Defendant Nos.1 to 4 have not filed any written
statement. Whereas defendant Nos.5 and 6 appeared and
filed their joint written statement. It is contended by them
that, the whole suit of the plaintiff is false and frivolous.
Plaintiff is not the owner in possession of the suit schedule
property so described in the schedule appended to the
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plaint and disputes the very description of the suit
schedule property.
3.4. It is denied that, the defendant Nos.1 to 4 have
no right over the suit schedule property. It is contended
that, without any cause of action, the present suit is filed
by the plaintiff. Hence, suit of the plaintiff is not at all
tenable in the eyes of law.
3.5. The specific defense of the defendant Nos.5 and
6 is that, they are the owners of plot No.260 situated in
Block No.260/2B/1. They have purchased the same under
the registered sale deed from its previous owner. One
Shridhar Panjikar made an attempt to disposes these
Defendant Nos.5 and 6 from the suit schedule property.
Therefore, Defendant Nos.5 and 6 filed a suits in
O.S.N.461/2011 and O.S. No. 462/2011 on the file of
Principal Civil Judge, Hubballi. The said suits came to be
decreed on 16.03.2013. During the pendency of these
suits the present plaintiff purchased the property
intentionally to defeat the rights of these defendants. The
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vendor of the plaintiff had purchased plot No.4 as per the
sale deed dated 30.12.2008 from the legal representatives
of one Hakim Hamidulla Shaikh. It is contended that, the
sale deed is not at all legal and valid sale deed. The said
sale deed has not disclosed any true facts. The present
plaintiff purchased the property from the aforesaid
Shridhar Panjikar under registered sale deed dated
15.12.2012 quite contrary to the earlier sale deed.
3.6. It is further contended that, the said Shridhar
Panjikar has filed Miscellaneous case Nos.31/2013 and
32/2013 for setting aside the judgments and decrees
passed in the aforesaid two suits. But those miscellaneous
petitions were dismissed.
3.7. It is further contended that, with a sole
intention to grab the compensation amount from
defendant Nos.1 to 4 in respect to the land belongs to
defendant Nos.5 and 6, the plaintiff has designed the suit.
Thus, it is prayed to dismiss the suit.
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4. Based upon the rival contentions of both the
parties, the learned Trial Court framed in all six issues.
They read as under:
Issues
"1. Whether the plaintiff proves that he
is the absolute owner and in possession of the
suit property?
2. Whether the plaintiff further proves
that defendants No.1 to 4 are liable to release
the compensation amount in his favour?
3. Whether the plaintiff further proves
that the alleged interference by defendant No.5
and 6 in the acquisition proceedings of the suit
property?
4. Whether the defendant proves that
the suit of the plaintiff is not maintainable?
5. Whether the plaintiff is entitled for
the relief of declaration and injunction as prayed
for ?
6. What order or decree ?"
5. Before the learned Trial Court to substantiate
the case of the plaintiff, plaintiff himself entered the
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witness box as PW.1 and got marked Ex.P.1 to P.30 and
closed his evidence.
6. To rebut the evidence of the plaintiff, defendant
Nos.6 and 5 respectively entered the witness box as
DWs.1 and 2 and got marked documents as Ex.D.1 to
D.41 and closed their evidence.
7. The learned Trial Court on hearing the
arguments of both the side and on evaluation of evidence
placed on record, answered issue Nos.1 and 3 in the
affirmative and issue No.4 in the negative and gave a
finding on issue No.2 as do not survive for consideration
and ultimately decreed the suit of the plaintiff. This
judgment and decree passed by the Trial Court is
challenged by these appellants by preferring this Regular
First Appeal.
8. The learned Senior Counsel Shri. Ashok
Haranahalli in addition to narrating the facts of the case
submits that, the flow of the title in favour of the plaintiff
and defendant Nos.5 and 6 plays an important role in
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deciding the lis between the parties. He submits that, on
perusal of the sale deed in favour of the appellant No.2 is
dated 30.12.2008. Whereas, the sale deed of the plaintiff
marked in evidence is at Ex.P.16 dated 15.12.2012.
8.1. It is his further submission that, on perusal of
the documentary evidence right from 1965 onwards which
are produced in this case show the flow of title in favour of
defendant Nos.5 and 6 being the appellants in this appeal.
The boundaries mentioned in the said sale deed dated
30.10.1965 which is the first sale deed in respect of suit
schedule property i.e., survey number mentioned shows
that, what property is being devolved upon the erstwhile
owners of the suit schedule property and how the
erstwhile owners sold the property in favour of defendant
Nos.5 and 6.
8.2. It is his further submission that, as the BRTS
authorities have acquired the said survey number for the
purpose of widening the Dharwad - Hubballi road, because
of that, in view of the current position of law with regard
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to the land acquisition, the plaintiff unnecessarily without
having right in the suit schedule property owned by the
defendant Nos.5 and 6 to get the compensation by hook or
crock has designed the suit. Merely because the decree
has been granted it does not mean that, the rights of
defendant Nos.5 and 6 will be deprived off.
8.3. The learned Senior Counsel Shri. Ashok
Haranahalli appearing for the appellants relied upon the
contents of the plaint averments, sketch appended to the
plaint. According to him, the portion of the said land was
acquired. The plaint is very much silent about the earlier
sale deeds so stated by the defendants in their written
statements. The Trial Court relied upon the self serving
hand sketch prepared by the plaintiff himself. The
observations in paragraph No.5 of the impugned judgment
made by the Trial Court is absolutely wrong. There was a
rectification deed as per Ex.P.17. There is no reference
with regard to the original title deeds. The Trial Court had
no occasion to see the sale deed of the year 2008 belongs
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to defendants. Burden is on the plaintiff to prove the
identification of the suit schedule property which is not
properly established by the plaintiff.
8.4. It is further submitted by the learned Senior
Counsel appearing for the appellants that, the plaintiff has
utterly failed to prove the very identification of the suit
schedule property, as per the provisions of the Code of
Civil Procedure, 1908 (for short, hereinafter referred to as
'CPC'). There is no proper description of the suit schedule
property in the plaint. In support of his submission, he
took us to various evidence spoken to by the witnesses
i.e., plaintiff and defendant Nos.5 and 6 so also
documentary evidence.
8.5. It is submitted by learned Senior Counsel
appearing for the appellants that, because of illegality
committed by the Trial Court in passing the impugned
judgment, therefore, the appellants / defendant Nos.5 and
6 have filed this appeal with the prayer to dismiss the suit
by allowing this appeal.
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9. As against this submission, learned counsel
Shri. Sourabh A. Sondur representing the plaintiff with all
vehemence submits that, the plaintiff has rightly described
the schedule property in the sketch appended to the
plaint. Taking into consideration of all these aspects, the
learned Trial Court based upon the oral and documentary
evidence has decreed the suit.
9.1. It is further submitted that, the Trial Court on
evaluation of the evidence placed on record by the plaintiff
and defendants has rightly come to the conclusion that,
the suit schedule property so described in the plaint
belongs to the plaintiff and they are the absolute owners
of the same. Their property is acquired by BRTS
authorities for the purpose of widening the road. There
was a meeting called by the Deputy Commissioner.
Though plaintiff has issued a notice to the authorities
concerned to show and furnish the particulars of the
extent of the property acquired by BRTS authorities, but
there was no response from the BRTS authorities. The
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meetings so conducted by the Deputy Commissioner
failed.
9.2. It is his submission that, as the learned Trial
Court has considered all these aspects and based upon the
title deeds so produced by the plaintiff as well as
defendant Nos.5 and 6 has rightly disbelieved the defense
of the defendants and has decreed the suit therefore, he
prayed for dismissal of the appeal.
10. During the course of the arguments both the
counsel would fairly submit that, very identification of the
property being questioned by the defendant Nos.5 and 6
and if the identification of the property is being resolved
and the property is properly identified, it will resolve the lis
between the plaintiff and defendant Nos.5 and 6. Further,
both the counsel are fair enough to submit that, if the
property of plaintiff and defendant Nos.5 and 6 are
identified by the Competent Authority, it would resolve the
whole dispute.
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11. The learned counsel for both the side have
submitted their synopsis in respect of their cases. They
relied upon the various events that have taken place with
regard to the Sy. No.260/2B/1 and also have produced the
typed copy of the title deeds for the convenience of the
Court.
12. We have given our anxious consideration to the
arguments of both the side. Meticulously perused the
record in depth.
13. In view of the rival submissions of both the
side, the following points arise for our consideration:
i) Whether the plaintiff has rightly
described the suit schedule property in
accordance with the provisions of Order VII Rule
3 of CPC?
ii) Whether the Trial Court has committed
illegality, perversity in decreeing the suit of the
plaintiff based upon the misdescription of the
suit schedule property so described by the
plaintiff?
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iii) If so, whether the judgment and decree
passed by the Trial Court require interference by
this Court?
iv) What order?
Point Nos.1 to 3 are discussed together:
14. As stated above, plaintiff has described the suit
schedule property with boundaries as measuring 7 guntas
41 annas including one AC shed sheet measuring 51.11
square meters in Municipal No.260/16 situated in Sy.
No.260 Hissa 2B/1 Block of Bhairidevarkoppa village,
Hubballi. Plaintiff has described the boundaries of the suit
schedule property as under:
"East :Other's property and Petrol Pump,
West :Remaining property of same survey No.
North :Property of Kalal and Bijalikhan
South:Hubli Dharwad main Road (P.B. Road)
As shown in the plaint hand sketch map."
15. On perusal of the both oral and documentary
evidence, plaintiff relies upon Ex.P.16 the original sale
deed dated 15.12.2012. The contents of the said sale deed
show that, plaintiff purchased 7 guntas 41 annas in Block
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No. 260/2B/1 from his vendor with the boundaries to
mentioned above.
16. As per the observations made by the Trial Court
this description of the suit schedule property matches with
the description of the suit schedule property mentioned in
the plaint. Even it is recited in the sale deed Ex.P.16 that,
the plaintiff was put in possession of the said property.
Thereafter, a rectification deed Ex.P.17 came to be
executed by the vendor of the plaintiff on 20.12.2012. It
is recited in Ex.P.16 that, there exists a AC shed sheet
measuring 51.11 square meters situated in Plot
No.260/16. This fact has been observed by the Trial Court
in paragraph No.20 of the judgment.
17. Whereas, in this case the defendants No. 5 and
6 specifically contend in their joint written statement that,
they are the owners of plot No.16 in Block No. 260/2B/1
having purchased the same under registered sale deed
from its previous owner. The vendor of the plaintiff by
name Shridhar Panjikar made an attempt to dispossess
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these defendants No.5 and 6 from the said property so
purchased by them. Therefore, they contend that, both
defendant Nos.5 and 6 filed suits in O.S.Nos.461/2011 and
462/2011 on the file of Principal Civil Judge, Hubballi. The
said suits came to be decreed on 16.03.2013.
18. It is a specific case of the defendant Nos.5 and
6 that, during the pendency of the said suits, this plaintiff
has purchased the property so stated by him as per
Ex.P.16. According to the defendant Nos.5 and 6, they
purchased plot No.4 as per the sale deed dated
30.12.2008 from the legal representatives of one Hakim
Hamidullah Shaikh.
19. To substantiate the case of the plaintiff as
stated supra, he has come before the Trial Court and
deposed in line with the contents of the plaint averments
and has marked so many documents in support of his
case.
20. PW.1 being a plaintiff admits that, defendant
No.2 has acquired the suit schedule property for widening
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the road. That means, the suggestions directed by the
defendant Nos.5 and 6 themselves show that, the
defendant No.2 has acquired the suit schedule property for
widening the road. Thus, these defendant Nos.5 and 6 also
have a knowledge about the acquisition of the suit
schedule property by defendant No.2.
21. Whereas, DW.1 being defendant No.6 has
reiterated the contents of written statement and
specifically contend that, the plaintiff is not the absolute
owner of the suit schedule property. Even DW.2 also has
spoken in line with the evidence of DW.1. Both were
subjected to severe and intensive cross examination. On
perusal of the entire documentary and oral evidence
spoken to plaintiff and defendants, they do suggest that,
the very description of the suit schedule property is being
disputed by the defendant Nos.5 and 6. They denied that,
the suit schedule property belongs to the plaintiff. They
contend that, the said suit schedule property belong to
them and they have purchased much prior to the sale
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deed in favour of the plaintiff. Voluminous documents are
produced by both the sides to prove their respective case.
22. In this appeal also, both plaintiff and
defendants No. 5 and 6 have filed interim applications to
receive additional evidence by invoking the provisions of
Order XLI Rule 27 of CPC. I.A. No.1/2023 is filed by the
plaintiff - respondent No.1 on 21.06.2023 to produce five
documents annexed with the application. Likewise,
appellant No.2 has filed I.A. No.2/2023 under Order XLI
Rule 27 of CPC to receive three sale deeds dated
30.10.1965, 29.07.1967 and 30.12.2008 respectively,
showing flow of title in their favor from the erstwhile
owner of the suit schedule property. Even appellant No.1
also has filed I.A. No.3/2023 on 04.07.2023 to produce
certified copy of registered sale deed dated 21.04.2011.
23. Along with these respective interim applications
filed by both the sides, it is specifically contended by both
the sides in their respective affidavits that, the documents
so produced along with interim applications are quite
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necessary to have proper adjudication of the dispute with
regard to the identification of the property. The plaintiff
relies upon the sale deed of the year 2012. Whereas, the
defendant Nos.5 and 6 relies upon the sale deeds from
1965. Therefore, according to both the side, these
additional evidence sought to be adduced by plaintiff and
defendants would help the court to have proper
adjudication of the suit. It is submitted by both the side
that, interim applications be allowed and plaintiff and
defendant Nos.5 and 6 be permitted to adduce their
respective additional evidence to prove their respective
case.
24. On perusal of the entire pleadings, evidence
and the submissions of both the sides as narrated above,
the description of the suit schedule property itself is
disputed.
25. In civil suits, it is mandatory on the part of the
plaintiff to describe the schedule property in proper
manner which can be identifiable. That is the mandate of
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Order VII Rule 3 of CPC. The said provision reads as
under:
"3. Where the subject-matter of the suit
is immovable property.- Where the subject-
matter of the suit is immovable property, the
plaint shall contain a description of the property
sufficient to identify it, and, in case such
property can be identified by boundaries or
numbers in a record of settlement or survey, the
plaint shall specify such boundaries or numbers."
26. On perusal of the provisions of Order VII Rule 3
of CPC as stated supra, the plaint must contain description
of the property in proper manner. But in this case, though
plaintiff described the schedule property based upon the
sale deed and also appended the sketch along with the
plaint, but the description of the property has been
disputed by defendant Nos.5 and 6. So far as the
defendant Nos.1 to 4 are concerned, they have not filed
any written statement denying the case of the plaintiff or
admitted the claim of defendant Nos.5 and 6. That
means, a lis is between plaintiff and defendant Nos.5 and
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6. Plaintiff claims that, the suit schedule property belongs
to him, whereas defendant Nos.5 and 6 claims that, the
said suit schedule property is not properly described by
the plaintiff. The vendor of the plaintiff has failed in civil
suits and the suit so filed by the defendant Nos.5 and 6
have been decreed. Said judgments and decrees so
passed in their favor have attained finality. Evidently they
are suits for injunction.
27. In a case of present nature, when the
description of the suit schedule property itself is disputed,
then the question arises that, what is the remedy available
to the parties to litigation?
28. The defendants have produced various title
deeds with typed copies and also have furnished the
synopsis so also the plaintiff. In a case of present nature
as stated above, only option for the Appellate Court is to
receive the additional evidence on record and consider the
same. When situation arises like this, what are the
options available to the Appellate Court by considering the
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rival submissions and takes a proper decision is to be
considered now.
29. The provisions of Order XLI Rule 23, 23A, 24,
25 of CPC are relevant for just decision in this appeal. The
said provisions read as under:
"23. Remand of case by Appellate Court.-
Where the Court from whose decree an appeal is
preferred has disposed of the suit upon a
preliminary point and the decree is reversed in
appeal, the Appellate Court may, if it thinks fit,
by order remand the case, and may further
direct what issue or issues shall be tried in the
case so remanded, and shall send a copy of its
judgment and order to the Court from whose
decree the appeal is preferred, which directions
to re-admit the suit under its original number in
the register of civil suits, and proceed to
determine the suit; and the evidence (if any)
recorded during the original trial shall, subject all
just exceptions, be evidence during the trial
after remand
[23A. Remand in other cases.-Where the
Court from whose decree an appeal is preferred
has disposed of the case otherwise than on a
preliminary point, and the decree is reversed in
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appeal and a re-trial is considered necessary,
the Appellate Court shall have the same powers
as it has under rule 23.]
24. Where evidence on record sufficient,
Appellate Court may determine case finally.-
Where the evidence upon the record is sufficient
to enable the Appellate Court to pronounce
judgment, the Appellate Court may, after
resettling the issues, if necessary, finally
determine the suit, notwithstanding that the
judgment of the Court from whose decree the
appeal is preferred has proceeded wholly upon
some ground other than that on which the
Appellate Court proceeds.
25. Where Appellate Court may frame
issues and refer them for trial to Court whose
decree appealed from.-Where the Court from
whose decree the appeal is preferred has
omitted to frame or try any issue, or to
determine any question of fact, which appears to
the Appellate Court essential to the right
decision of the suit upon the merits, the
Appellate Court may, if necessary, frame issues,
and refer the same for trial to the Court from
whose decree the appeal is preferred, and in
such case shall direct such Court to take the
additional evidence required;
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and such Court shall proceed to try such issues,
and shall return the evidence to the Appellate
Court together with its findings thereon and the
reasons therefore [within such time as may be
fixed by the Appellate Court or extended by it
from time to time].
30. In this case as stated supra, both plaintiff and
defendants have filed their respective applications to
receive their additional evidence by invoking the provisions
of Order XLI Rule 27 of CPC. It reads as under:
"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
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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 be
examine 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) Wherever additional evidence is
allowed to be produced by an Appellate Court,
the Court shall record the reason for its
admission."
31. On perusal of these provisions of law, we have
to keep in mind the distinction between diverse powers of
the Appellate Court to pass the order of remand. The
scope of remand in terms of decree of Order XLI of CPC is
extremely limited. This proviso of Order XLI Rule 23 of
CPC is therefore, have to be invoked in rarest
circumstances. The general principle is that, the Appellate
Court should not travel outside the record of the lower
Court and cannot take any evidence in an appeal.
However, as an exception, Order XLI Rule 27 of CPC
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enables the Appellate Court to take additional evidence in
exceptional circumstances. It may also be true that, the
appellate court may also be permitted to take additional
evidence in the conditions laid down in its rule or bound to
adjust and then parties are not entitled, as applied, to the
admission of such evidence. However, at the same time,
where additional evidence is sought to remove the clouds
of doubt over the case and the evidence are direct and
important on the main issue in the suit, and the interest of
justice renders imperative, it may be allowed and
permitted to receive on record.
32. If this position of law is applied to the present
facts of the case, as stated supra there is a dispute with
regard to identification of the property. It is submitted by
both the side that, the additional evidence is very much
necessary. When the description of the property is not
properly described by the plaintiff as per the case of the
defendant Nos.5 and 6 and when they set up their own
title over the suit schedule property, it is for the plaintiff to
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prove the correct description of the suit schedule property
by leading further evidence.
33. Now based upon the material already made
available, is it possible to decide the lis between the
parties? The flow of title as stated by the defendant Nos.5
and 6 during the course of arguments show, that the
erstwhile owner of the defendant Nos.5 and 6 purchased
the property of which the title flowed from 1965 onwards.
To that effect additional documents are produced by the
defendant Nos.5 and 6 along with the interim application.
So also, plaintiff has produced the documents to show
that, how he acquired the title over the suit schedule
property. Therefore, the option for the Court is to give an
opportunity to the parties to lead further evidence on their
documents. If they are advised, they can also take the
assistance of Survey Commissioner to identify and locate
the property of plaintiff and defendant Nos. 5 and 6. As
rightly argued by both counsels, if the property is
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identified and its location is proved to show where exactly
properties are lying, it will resolve the dispute.
34. Law is that, where the Court from whose decree
an appeal is preferred requires some consideration with
regard to the identification of the property, then the suit
has to be readmitted before the Trial Court under its
original number in the list of civil suits.
35. In our view, the Trial Court has committed the
jurisdictional error in decreeing the suit of the plaintiff. For
such an unidentified property, the Trial Court has granted
decree. In our considered opinion, the simple exercise of
identification of the property is not made before the Trial
Court by the parties.
36. In view of all these factual features coupled
with position of the law and considering all the facts and
circumstances of the case, the impugned judgment and
decree passed by the Trial Court requires interference by
this Court. Therefore, the same is not sustainable in the
eyes of the law.
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37. In view of the aforesaid discussion, the present
appeal deserves to be allowed. The impugned judgment
and decree passed by the Trial Court in O.S.No. 350/2014
is to be set aside, and the matter requires remand to the
Trial Court with a direction to permit both the parties to
adduce further evidence. A liberty is also given to both
the parties to seek an appointment of a Survey
Commissioner to locate the suit schedule property. If such
an application is filed, the Trial Court is to be requested to
consider the application in accordance with law. As the suit
is of the year 2014, the parties are to be directed to
appear before the Trial Court by fixing the date.
38. Resultantly, we pass the following order:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated
29.08.2017 in O.S.No.350/2014 on the file
of I Additional Senior Civil Judge, Hubballi is
hereby set aside and the matter is remitted
back to the Trial Court for fresh
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consideration after providing fair hearing to
the parties.
iii) It is stated by the parties that they
have filed applications for production of
certain documents by way of additional
evidence. Hence, it is open for the parties to
file an application before the Trial Court to
adduce further evidence, if so advised.
iv) It is needless to say that liberty is
reserved to the parties to file an application
seeking appointment of Court Commissioner
to locate the suit schedule property and if
such application is filed, the Trial Court shall
consider the same in accordance with law.
v) Since the parties are represented
through their respective counsel, in order to
avoid further delay in the matter, the parties
are directed to appear before the Trial Court
on 29.05.2024 at 11.00 a.m. without
expecting further notice.
vi) All the contentions of both the
parties are kept open.
vii) Registry is directed to send back
the Trial Court Records immediately along
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with the IA's filed for production of additional
evidence.
viii) The parties are directed to co-
operate for early disposal of the suit.
ix) The Trial Court is requested to
dispose of the suit on merits with all its
promptitude.
x) Court fee paid on appeal memo be
refunded to appellants digitally after
collecting necessary documents.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
