Karnataka High Court
Smt Veena W/O Suresh Palankar vs Ashok S/O Ramachandra Deshpande on 25 July, 2024
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 1833 OF 2006
BETWEEN
SMT. VEENA W/O SURESH PALANKAR
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O GADAG, TAL & DIST: GADAG.
...APPELLANT
(BY SMT. PALLAVI S. PACHCHAPURE,
AND SRI. F.V.PATIL, ADVOCATES)
AND
1. ASHOK RAMACHANDRA DESHAPANDE
AGE: 47 YEARS, OCC: EMPLOYEE,
R/O SAMMASAGI, TAL: HANAGAL,
PRESENT AT HUBBALLI,
DIST: DHARWAD.
2. KRISHNAJI RAMACHANDRA DESHPANDE
SINCE DECEASED BY HIS LRS
2A. SMT. RADHABAI K. DESHAPANDE
W/O KRIDHNAJI R. DESHAPANDE
SINCE DECEASED AND HER LRS
I.E., R2(B) TO R2(G) ARE ALREADY ON RECORD
2B. ANANT K. DESHAPANDE
S/O KRISHNAJI R. DESHAPANDE
AGE: MAJOR,
R/O "CHAKRAVATHI NILAYA"
785/20/1, 4TH MAIN, II CROSS,
'A' BLOCK, DR. RAJKUMAR ROAD,
RAJAJINAGAR, BENGALURU-560010.
2C. SMT. LAXMI Y. KULKARNI
2
W/O YASHAWANTH R. KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: HATTI'S HOUSE (KEB),
BASAVESHWAR NAGAR, HAVERI,
DIST: HAVERI-581110.
2D. SATISH K. DESHAPANDE
S/O KRISHNAJI R. DESHPANDE
AGE: MAJOR,
R/O H.NO.1/176, MIG,
NEAR MARUTHI TEMPLE, GANDHINAGAR,
GOKUL ROAD, HUBBALLI,
DIST: DHARWAD-580009.
2E. SURESH K. DESHAPANDE
S/O KRISHNAJI R. DESHPANDE
AGE: MAJOR, R/O AT POST: SAMMASGI,
TAL: HANAGAL, DIST: HAVERI-581104.
2F. VEENA B. KULKARNI
W/O SRI. B.G. KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: H.NO.37, SANTOSH NAGAR-580009,
HUBBALLI, DIST: DHARWAD.
2G. SNEHA V. KULKARNI
W/O SRI. VINAYAK R. KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD,
R/O SANTOSH NAGAR-580009,
HUBBALLI, DIST: DHARWAD.
3. MANJUNATH V. RAIKAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O SAMMASAGI, TAL: HANAGAL,
PRESENT AT HUBBALLI, DIST: DHARWAD.
...RESPONDENTS
(SRI. P.H.PAWAR, ADVOCATE FOR R1;
SRI. SHARADA R. SHINDE, ADVOCATE FOR R1
SRI. T. KOTRESHI, ADVOCATE FOR R3;
R2(A) DECEASED;
R2(B) TO R2(G) ARE TREATED AS LRS OF DECEASED R2(A);
R2(B) APPEAL ABATED;
NOTICE TO R2(C) TO (G) ARE SERVED)
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THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 03.04.2006, PASSED BY TGE FAST
TRACK COURT, HAVERI, IN R.A.NO.25/1005, CONFIRMING THE
JUDGMENT AND DECREE DATED 01.02.2005 , PASSED BY CIVIL
JUDGE(JR.DN.), HANGAL, IN O.S.NO.200/2002, AND TO DISMISS THE
SUIT OF THE PLAINTIFF BY ALLOWING THIS APPEAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.07.2024 COMING ON FOR 'PRONOUNCEMENT OF
JUDGEMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present second appeal is filed by defendant No.2 under
Section 100 of Code of Civil Procedure, 19081 challenging the
judgment and decree dated 03.4.2006 passed in R.A No.25/2005
by the Fast Track Court, Haveri2 and the judgment and decree
dated 01.2.2005 passed in O.S No.200/2002 by the Civil Judge
(Sr.Dn), Hangal3, whereunder, the suit for declaration that the
sale deed dated 18.01.1992, is null and void, and for permanent
injunction has been decreed by the Trial Court, which has been
affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking
before the Trial Court, for the sake of convenience.
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'first appellate Court'
3. It is the case of the plaintiff that he was a tenant in
property bearing R.S No.86/1, measuring 03 acres 30 guntas,
situated at Sammasagi village, Hangal taluk4 and the same was
being cultivated by the ancestors of the plaintiff. That the plaintiff
filed Form No.7 in respect of the suit property, and the Land
Tribunal, Hangal has granted occupancy rights in favour of plaintiff
and the plaintiff was in possession and enjoyment of the same.
That the plaintiff was working at Mahadeva Textile, Hubli. That the
defendant No.1 is the elder brother of the plaintiff, defendant No.2
is a purchaser from defendant No.1 and defendant No.3 is a
relative of defendant No.2.
4. It is the further case of the plaintiff that he executed a
power of attorney in favour of defendant No.1. That since
defendant No.1 did not furnish the proper accounts of the suit
land and he started to demand amount from the plaintiff for
maintenance of the suit land. The plaintiff having knowledge of
the illegal activities of defendant No.1, cancelled the power of
attorney issued in favour of defendant No.1 on 03.12.1988, by
issuing a notice, which was also intimated to Sub-Registrar,
Hangal and Special Tahsildar, Hangal. That defendant No.1,
Hereinafter referred to as the 'Trial Court'
though having no rights, in collusion with defendants No.2 and 3,
got fabricated certain documents and created a Sale Deed dated
18.01.1992 pertaining to the suit property. That on the basis of
the said Sale Deed, defendants No.2 and 3 have started to
obstruct the plaintiff's lawful possession and enjoyment of the suit
property. That when the plaintiff made enquiries, he learnt
regarding execution of the Sale Deed by defendant No.1 on his
behalf in respect of the suit property. That the plaintiff never
authorized defendant No.1 to alienate the suit property. Hence, it
is contended that defendant No.1 does not get any right to
alienate the same and hence, the Sale Deed is illegal and void.
Hence, the plaintiff filed a suit for a declaration that the Sale Deed
dated 18.1.1992, executed by defendant No.1 in favour of
defendant No.2, pertaining to the suit property is illegal, void and
not binding on the plaintiff and consequential relief of permanent
injunction from obstructing his peaceful possession and enjoyment
of the suit property.
5. Defendants No.1 to 3 entered appearance through
their counsel before the Trial Court. Defendants No.1 and 2 have
filed a written statement denying the case of the plaintiff. The
Hereinafter referred to as the 'suit property'
defendants have admitted the relationship between the parties
and the description of the suit property. It is further contended
that defendant No.3 is not a necessary party to the suit. It is
admitted that the plaintiff filed Form No.7 claiming occupancy
rights pertaining to the suit property. The rest of the averments
regarding the plaintiff's possession of the suit property and other
averments are denied.
6. It is contended that defendant No.1 never played
fraud on the plaintiff and he has discharged his duties on the basis
of the power of attorney as per the instructions given by the
plaintiff. It is further contended that defendant No.2 is a bonafide
purchaser for valuable consideration. It is denied that the Sale
Deed dated 18.1.1992 is executed in collusion with defendants
No.1 to 3. That the plaintiff himself approached defendant No.2 at
Gadag, and offered to sell the suit property, and asked her to
contact his power of attorney holder, defendant No.1. Thereafter,
defendant No.2 contacted defendant No.1 and sale negotiations
were held on 26.08.1987, consequent to which, a sale agreement
came into existence, wherein defendant No.1 on behalf of the
plaintiff has agreed to sell the suit land for ₹12,000/- and
₹5,000/- was taken as earnest amount and the possession was
handed over to defendant No.2.
7. It is further contended that on 18.1.1992, the Sale
Deed was executed after converting the suit land into old tenure,
and the possession earlier handed over under the agreement of
sale was confirmed to defendant No.2 and M.E No.535 was also
certified. It is further contended that the plaintiff never resided at
Sammasagi village, and since more than 30 years he is residing at
Hubli permanently. It is further alleged that the Neelagiri
plantations in the suit land are made by defendant No.2, who is in
actual possession and enjoyment of the suit property. That
defendant No.2 after obtaining permission from the Forest
Department, the Neelagiri plantations in the suit property have
been cut down and the proceeds have been appropriated by
defendant No.2. Hence, defendants No.1 and 2 sought for
dismissal of the suit with costs.
8. Defendant No.3 did not file any written statement and
did not contest the suit.
9. Consequent to the pleadings of the parties, the Trial
Court, framed the following issues and additional issues:
i. "Whether the plaintiff proves the sale deed dated
19.02.1992 executed by defendant No.1 in favour of
defendant No.2 in respect of the suit property is
illegal, void and not binding on the suit property is
illegal, void and not binding on him as contended?
ii. Whether the plaintiff proves, he is in lawful possession
over the suit property as on the date of suit?
iii. Whether plaintiff is entitled for declaration as prayed
for?
iv. Whether plaintiff is entitled for injunction as sought?
Addl. Issue No.1: Whether suit is bad for mis-
joinder of parties?
Addl. Issue No.2: Whether court fee paid is
insufficient?
v. To what order or decree?"
10. The plaintiff was examined as PW.1 and a witness was
examined as PW.2. Ex.P1 to Ex.P20 have been marked in
evidence. Defendant No.1 was examined as DW.1, defendant No.2
as DW.2 and defendant No.3 as DW.3. Ex.D1 and Ex.D2 have
been marked in evidence.
11. The Trial Court, by its judgment and decree dated
01.2.2005, decreed the suit and passed the following order:
"The suit filed by plaintiff is decreed with costs.
It is declared that the sale deed dated 18.01.1992
executed by defendant No.1 Krishnaji in favour of
defendant No.2 Smt.Veena pertaining to suit property is
illegal, void and not binding on plaintiff.
Further consequentially the defendants are hereby
restrained by way of permanent injunction from causing
any type of obstruction in plaintiff's peaceful possession
and enjoyment over the suit property.
Draw a decree accordingly."
12. Being aggrieved, defendant No.2 preferred R.A
No.25/2005. The plaintiff entered appearance before the First
Appellate Court and contested the same. The First Appellate Court
framed the following points for consideration:
i. "Whether the plaintiff proves sale deed dated
18.01.1992 executed by defendant No.1 in favour of
defendant-2 in respect of suit property is illegal, void
and not binding on him?
ii. Whether the plaintiff proves his lawful possession over
the suit property?
iii. Whether the trial court committed error in decreeing
the plaintiff's suit?
iv. Whether the impugned judgment calls for
interference?
v. What order?"
13. The First Appellate Court, by its judgment dated
03.04.2006, dismissed the appeal and confirmed the judgment
and decree passed by the Trial Court. Being aggrieved, the
present second appeal is filed.
14. This Court, vide order dated 01.4.2009, admitted the
above appeal and framed the following substantial questions of
law:
i. "Whether the orders passed by the court below are
justified in law in view of the fact that the General
Powers of Attorney were executed in the years 1983
and 1984?
ii. Whether a notice by itself constitutes termination?"
15. In the above appeal, the appellant has filed the
following applications:
i. I.A No.2/2006 was filed under Order 41 Rule 27
read with Section 151 of the CPC, to permit the
appellant to produce the document as additional
evidence i.e, a Notarized copy of the agreement of
sale dated 26.8.87, executed by the GPA holder of
the plaintiff in favour of the appellant/defendant
No.2.
ii. I.A No.1/2009 was filed under Order 41 Rule 27
read with Section 151 of the CPC, to permit the
appellant to produce the additional documents as
additional evidence i.e., a Notarized photo copy of
the Power of Attorney dated 12.03.1983 executed
by the plaintiff in favour of defendant No.1 and a
Notarized photo copy of the Power of Attorney
dated 20.12.1984, executed by the plaintiff in
favour of defendant No.1.
16. In the affidavit filed in support of I.A No.2/2006, it is
deposed by the appellant that she has purchased the land through
Agreement of Sale dated 26.8.1987, which culminated in
registered Sale Deed dated 18.1.1992. That both the Courts have
not accepted her contention on the ground that she has not
produced the original Agreement of Sale and power of attorney. It
is deposed that she has produced copies of the Agreement of Sale
and power of attorney, but the said documents were not
considered on the ground that they are copies. It is further
deposed that the original Agreement of Sale was misplaced in the
house and it was searched recently. That the power of attorney is
produced in another case and the certified copy will be produced
in due course. That, recently she got the original Agreement of
Sale, which is produced along with the application, and that the
Agreement of Sale has culminated in the registered Sale Deed
dated 18.1.1992.
17. In support of I.A No.1/2009, it is deposed by the
appellant that pursuant to the power of attorney executed on
20.12.1984, defendant No.2 has executed the sale deed in favour
of the appellant/defendant No.1. That the two power of attorneys
dated 12.3.1983 and 12.12.1984 were produced in Criminal Case
before the Criminal Court by defendant No.1 and hence, the
appellant has not produced the same before the Trial Court. That
the two power of attorneys executed by the plaintiff in favour of
defendant No.1, who are brothers are produced along with the
said application as an additional evidence.
18. The respondent No.1/plaintiff has filed objections to
I.A No.1/2009, wherein, it is stated that the appellant has not
stated where and in which Criminal Case the power of attorney
was produced by defendant No.1 and how she secured the power
of attorney after a lapse of more than 25 years and that too a
notarized copy is produced and not the original. It is further
stated that Order 41 Rule 27 cannot be taken recourse to by the
appellant since nothing is stated in the affidavit regarding non-
production before the Trial Court or the First Appellate Court. It is
further stated that no reasons as required under Order 41 Rule 27
are stated in the affidavit and that the application is filed in a very
casual manner. It is further stated that the documents sought to
be produced are not original documents and they are notarized
documents and nothing prevented the appellant to produce the
original copies of the power of attorney and hence, the copies
sought to be produced along with the application are in-admissible
in evidence and they cannot be looked into. It is further stated
that no reasons have been assigned, as to why these copies were
not produced either before the Trial Court or before the First
Appellate Court, and how the appellant has secured notarized
copies and from whose custody. That Order 41 Rule 27 of the CPC
requires production of original documents as additional evidence
and not notarized copies. Hence, respondent No.1 has sought for
dismissal of the application.
19. Learned counsel for the appellant during the course of
arguments has filed a memo along with typed copies of the power
of attorney dated 12.12.1984.
20. Learned counsel for the appellant, Smt.Pallavi
Pacchapure vehemently contends that both the Courts have
recorded the findings that since the power of attorney and
Agreement of Sale have not been produced the suit has been
decreed. That since notarized copies of power of attorney are
produced along with I.A No.2/2006 and copy of the Agreement of
Sale is produced along with I.A No.1/2009, the said applications
are required to be allowed and the documents are required to be
taken on record as additional evidence. It is further contended
that if the said documents are looked into, it is clear that, the
plaintiff has authorized defendant No.1 and consequent to the said
authorization, the Sale Deed dated 18.1.1992 has been executed.
That the plaintiff does not deny that he had executed a power of
attorney in favour of defendant No.1. That, the plaintiff pleads
regarding a power of attorney given to defendant No.1. However,
it is the case of the plaintiff that the said power of attorney has
been revoked by issuing a legal notice dated 03.12.1988 (Ex.P10).
That, it is the consistent case of the defendants that no notice has
been served on the defendant No.1, revoking the power of
attorney. Hence, she seeks for allowing of the applications as well
as the appeal. Learned counsel, in support of the contentions
relies on the judgment of a Co-ordinate Bench of this Court in the
case of Sri. Raghavendra Swamy Mutt v/s Uttaradi Mutt5.
21. Per contra, learned counsel Sri.Vinod.S.Pawar,
representing the respondent No.1/plaintiff submits that along with
the applications, only copies of the power of attorneys have been
furnished and the originals have not been furnished. Hence, it is
contended that the applications are liable to be rejected. It is
further contended that the appellant has not stated as to why the
2017 SCC Online KAR 3553
said copies could not have been produced earlier before the Trial
Court or the First Appellate Court. It is further contended that
both the Courts having recorded concurrent findings that the
defendants have not even produced the power of attorneys, the
said concurrent findings ought not to be interfered with by this
Court in the present second appeal. Hence, he seeks for dismissal
of the applications as well as the appeal. In support of his
contention, he relies on the judgment of a Co-ordinate Bench of
this court in the case of Gabriel Bhaskarappa Kuri and others
vs The United Basel Mission Church in India Trust
Association and Others6
22. In addition to the substantial questions of law i.e.,
framed vide order dated 01.4.2009, it is further necessary to
consider as to "whether the appellants have made out any grounds to
allow I.A Nos.1/2009 and 2/2006?"
23. Before noticing the contentions put forth by both the
learned counsels, it is relevant to notice the findings recorded by
both the Courts. The Trial Court has recorded the following
findings:
ILR 2007 KAR 773
i. It is the case of the plaintiff that he has given
power of attorney in favour of defendant No.1 only
for managing the suit property and that he
subsequently cancelled it by issuing notice on
03.12.1988. On the contrary, the defendants
contended that the defendant No.1, as power of
attorney holder, has executed agreement of sale
on 26.8.1987, in favour of defendant No.2 and
after converting the suit land into old tenure, the
Sale Deed was executed for a valuable
consideration of Rs.12,000/-;
ii. It is an admitted fact that the plaintiff has
submitted Form No.7 pertaining to the suit
property, as is evident from the order of the Land
Tribunal (Ex.P2). PW.1 has examined himself and
deposed regarding execution of the power of
attorney for management of the suit property. He
has denied execution of the power of attorney in
favour of defendant No.1 for alienation of the suit
land. PW.1 is cross-examined at length, but
nothing has been elicited to impeach his evidence;
iii. PW.2 is one of the witnesses examined on behalf
of the plaintiff to prove that he is in possession of
the suit property. PW.2 has claimed that he is
owning land on the northern side of suit property
and specifically deposed that the plaintiff is in
possession of the suit property and he has planted
Neelagiri plantations. PW.2 has been cross-
examined at length, but nothing has been elicited
to impeach his evidence;
iv. Defendant No.1 is examined as DW.1, and he has
deposed that the plaintiff has executed two power
of attorneys in his favour. He has also deposed
regarding conversion of the suit land, and the
alienation on the basis of the agreement of sale
dated 26.8.1987. He has further stated that the
plaintiff has never cancelled the power of attorney
deeds and he has no knowledge regarding
cancellation of the power of attorneys. He has
denied that the plaintiff has executed power of
attorney in his favour only for management of suit
land and he has not authorized to alienate the suit
land. Further in cross-examination dated
17.11.2004, he has stated that both the power of
attorneys executed by the plaintiff are in his
possession and that he has produced the same in
different proceedings. But pleads ignorance
regarding those proceedings. DW.1 is unable to
say in what proceedings he has produced the
power of attorney deeds;
v. Defendant No.2 was examined as DW.2 and she
has claimed that defendant No.1 as P.A holder has
executed agreement of sale in the year 1987 and
on 18.1.1992 executed a regular Sale Deed. She
has also claimed that she has verified all the
documents pertaining to the suit property. That
prior to purchase, contacted the plaintiff and as
per his instructions she has dealt with defendant
No.1. However, in the cross-examination, she
deposes that she does not know anything and all
the transactions were done on her behalf by her
father-in-law Nagesh Palankar. She has further
stated in her cross-examination that after 1987
and before 1992, when she had been to
Sammasagi, she met the plaintiff, but she did not
demand for execution of the Sale Deed. She has
also admitted in her cross-examination at para
No.6 that power of attorney executed by plaintiff
in favour of defendant No.1 was cancelled on
03.12.1988. She did not say as to whether she
had knowledge of this cancellation of power of
attorney, prior to execution of the Sale Deed;
vi. Defendant No.1 has filed a written statement, but
defendant No.2 did not file written statement
initially and she has filed her written statement on
04.2.2004 after a lapse of nearly 12 years after
payment of heavy costs. This conduct on the part
of defendant No.2 creates doubt in the mind of the
Court.
vii. Defendant No.3 was examined as DW.3. He has
deposed regarding execution of the agreement of
sale and Sale Deed in favour of defendant No.2 by
defendant No.1 as a P.A holder and possession of
defendant No.2. He further claimed that he was
managing the affairs of suit land on behalf of
defendant No.2. In the cross-examination, DW.3
has deposed that the agreement of sale executed
by defendant No.1 is in the custody of the father-
in-law of defendant No.2-Nagesh Palankar, but the
said document is not produced. In the cross-
examination, it is further stated that it is a
registered power of attorney;
viii. The plaintiff has produced copy of the legal notice
issued to defendant No.1 regarding cancellation of
power of attorney and it is marked as Ex.P10.
Ex.P12 and Ex.P13 are the acknowledgements of
Special Tahsildar and Sub-Registrar, Hangal.
Ex.P11 is a postal receipt for having sent the
notice to defendant No.1. No documents or
acknowledgements are produced by the plaintiff to
prove that it is duly served;
ix. The plaintiff has disputed that he has authorized
defendant No.1 for alienation of the suit property
and power of attorney is only in respect of
management of suit property. DW.1 admits that
he is in possession of power of attorney and
claimed that the plaintiff has executed two power
of attorney deeds and he has produced them in
other proceedings;
x. When documentary evidence is available, oral
evidence does not carry any weight;
xi. Power of attorney would have been the best
document to state as to what authority was given
by plaintiff to defendant No.1 regarding
transactions pertaining to the suit property;
xii. The plaintiff specifically disputed the authority of
alienation and defendant No.1 has failed to
produce the power of attorney, though he is in
possession of said document. No explanation is
forthcoming for non-production of power of
attorney by defendant No.1. Hence, the
defendants have withheld the material documents
which are in their custody and as such adverse
interference has to be drawn against defendants;
xiii. From Ex.P10 to Ex.P13, it is evident that, the
power of attorney was cancelled by issuing notice
on 03.12.1988. The defendant has alleged that on
the basis of the power of attorney, agreement of
sale was executed on 26.8.1987. Defendants No.1
and 3 have admitted execution of the agreement
of sale and asserted the facts specifically. But it is
important to note that none of the attesting
witnesses of the said agreement of sale were
examined and the said documents i.e., agreement
of sale has also not been produced by the
defendants;
xiv. No explanation is offered by defendants for non-
production of sale agreement as well as the power
of attorney;
xv. When there is no authority for defendant No.1 to
alienate the suit property, and the defendant No.2
did not take copy of power of attorney to
safeguard her interest on execution of Sale Deed,
the sale itself becomes null and void and it is not
binding on the plaintiff;
xvi. From Ex.P3, it is evident that, for the year 1986-
87 Neelagiri plantations are recorded. From
Ex.P16, it is evident that, Neelagiri plantations
were shown in the year 1991-92. Hence, prior to
1986-87, the defendant No.2 was not in
possession of the suit property as per her claim.
That itself disclose that Neelagiri plantations in the
suit land was not raised by defendant No.2;
xvii. The defendant No.2 has contended in her written
statement that she has uprooted after obtaining
permission from the competent authority, but no
such permission is produced before the Court. As
such, defendant No.2 has failed to prove her
possession over the suit property;
xviii. On the contrary it is evident that the plaintiff is in
possession and enjoyment of the suit property.
24. The First Appellate Court has affirmed the findings of
the Trial Court and has held that due to non-production of power
of attorney, the material evidence is withheld and hence, adverse
inference was required to be drawn under Section 114 of the
Indian Evidence Act, 18727. It is further held that no explanation
is forthcoming as to why defendant No.1 did not produce the
power of attorney. It is further held that the evidence of DW.3
that the power of attorney was a registered one, falsifies the case
of defendant No.2. The First Appellate Court has recorded a
finding that the defendant No.1 has not discharged the burden
that he was authorized to alienate the suit land under the said
power of attorney deeds.
25. It is forthcoming from the aforementioned that
although the defendant No.1 has claimed that the power of
attorneys are in his possession, the same have not been produced
either before the Trial Court or before the First Appellate Court.
Further it has been claimed by the defendants that the power of
attorney has been produced in a Criminal Case and in some other
proceedings. As rightly held by both the Courts, the defendants
have not stated as to in which proceedings the said power of
attorney has been produced.
26. In the affidavit, filed in support of I.A No.1/2009, it is
deposed by the appellant that as the power of attorneys were
produced in a Criminal Case by defendant No.1, the appellant has
not produced the same before the Trial Court. However, it is
relevant to note that along with the application only photocopies
Hereinafter referred to as the 'Evidence Act'
of two documents have been produced claiming the same to be
notarised photocopies of power of attorney. The said documents
are practically not readable.
27. It is sought to be contended by the learned counsel
for the appellant that there is a seal of the Executive Magistrate,
Hangal and hence, it is required to be inferred that the same were
produced in some other proceedings. The said submission will not
aid the case of the appellant as no details of any proceedings are
forthcoming from any attestation made in the copies of the said
documents produced.
28. The defendant No.1 has not produced the originals of
the power of attorneys, on the basis of which, he claims that the
plaintiff has authorized him to alienate the suit property. Further,
even at this belated stage, the appellant has merely produced
photocopies of the said documents. No explanation has been
afforded as to why even the photocopies could not be produced
before the Trial Court or the First Appellate Court. It is further
relevant to note that in I.A No.2/2006 the appellant has sought to
produce a notarized copy of the agreement of sale. It is submitted
on behalf of learned counsel for the appellant that the originals of
the said documents are available and the same would be filed in
the Registry.
29. The relevant documents to be considered are the
power of attorneys on the basis of which it is contended by
defendant No.1 that he has executed the Agreement of Sale dated
26.8.1987, as well as the registered Sale Deed dated 18.1.1992
(Ex.P14) in favour of defendant No.2. In this context, as noticed
above, it is the contention of the plaintiff that he has executed a
power of attorney in favour of defendant No.1 only for the
purpose of managing the suit property, while it is the contention
of defendant No.1 that defendant No.1 was authorized to alienate
the suit property and hence, he has executed the Agreement of
Sale dated 26.8.1987 and Sale Deed dated 18.1.1992 (Ex.P14) in
favour of defendant No.2. Hence, it was incumbent on the
defendants to adequately prove the power of attorney authorising
the defendant No.1 to alienate the suit property.
30. In the present case although it was the specific
contention of defendant No.1 before the Trial Court that the power
of attorneys are in his custody and he has produced the same in
some other proceedings, neither it has been stated as to in which
proceedings he has produced the said power of attorney nor the
original of the said power of attorney is produced till date. The
feeble attempt of appellant/defendant No.2 in producing
photocopies of the power of attorneys along with I.A No.1/2006
will in no manner aid the case of the appellant having regard to
the fact that the respondent No.1/plaintiff has specifically
contended that the power of attorney executed by him in favour
of defendant No.1 was only for managing the suit property.
31. In this context it is relevant to notice Order 41 Rule 27
of the CPC which reads as follows:
"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 be 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) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission."
32. A Co-ordinate Bench of this Court in the case of Sri.
Raghavendra Swamy Mutt v/s Uttaradi Mutt5 has noticed the
judgment of the Hon'ble Supreme Court in the case of Union of
India Vs. Ibrahim Uddin8, wherein it has been held as follows:
"49. An application under Order XLI 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
(2012) 8 SCC 148
the evidence as it stands the court comes to the
conclusion that some inherent lacuna or defect becomes
apparent to the Court."
(emphasis supplied)
33. A co-ordinate Bench of this Court in the case of
Gabriel Bhaskarappa Kuri and others vs The United Basel
Mission Church in India Trust Association and Others6 relied
upon by the learned counsel for respondents considering the
scope and applicability of Order 41 Rule 27 of CPC held as follows:
5. A perusal of the provisions shows the Code specifically
provides for production of additional evidence in
Appellate Court. However, the opening words of the
provision are couched with negative words. It declares
that the parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the appellate Court. This legislative
intent has to be kept in mind. It is in the nature of a
command, coughed in a negative form, declaring that
the parties have no right to produce additional
evidence in the appellate Court. That is the rule,
However, as an exception, the provision sets out
under what circumstances additional evidence could
be produced in the appellate Court. Therefore, the
production of additional evidence in appellate Court
has to be strictly construed. This power so conferred
upon the Court by the Code ought to be very sparingly
exercised. While exercising such power it is necessary
for the Appellate Courts to keep in mind the
amendment to the Code of Civil Procedure brought
about in the year 2002. Now, even in the Trial Court
the parties have to produce the documents on which
they rely on, for their claim or the defence along with
the pleadings. Thereafter documents shall not, without
the leave of the Court be received in evidence at the
hearing of the suit. Further, the Court mandates under
Order 13 Rule 1 that all the documents shall be
produced on or before the settlement of issues. If
anything remains to be produced, they have to be
produced along with the affidavit which is by way of
examination in chief. Therefore, the concept of
showing a good cause for not producing the
documents earlier has been given a complete go by.
Unless the document is relevant to the matter in
issue, without the leave of the Court, the same cannot
be produced, once the opportunity to produce the
same is not availed of by the parties. In that context
when production of documents at a later stage in the
suit itself is very much restricted, in appeal it cannot
be allowed as a matter of course even though these
provisions are not amended by the said Amendment
Act. Unless the party makes out a case as
contemplated under Order 41 Rule 27 CPC the Court
cannot admit documents. While exercising such
power, the Court shall comply with the requirement of
law as contained in sub-rule (2) of Rule 27 and Rule
29.
(emphasis supplied)
34. Rule 27 of Order 41 of the CPC specifically mandates
that the parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary. Further, the
three scenarios, where the Appellate Court may allow the
evidence to be produced is:
i. If the Trial Court or Appellate Court has refused to
admit evidence which ought to have been admitted;
OR
ii. The party seeking to produce additional evidence
establishes that, notwithstanding exercise of due
diligence, such evidence was not within his knowledge
or could not after exercise of due diligence be
produced by him in the proceedings appealed against;
OR
iii. If the Appellate Court requires the documents to
enable it to pronounce judgment or for any other
substantial cause.
35. It is the vehement contention of the learned counsel
for the appellant that "substantial cause" being one of the
considerations and the basis of the defence of the defendants
being that the defendant No.1 was authorized by the plaintiff by
the power of attorney, it is necessary for the Court to allow the
interim application and permit production of the additional
evidence. In the present case, in the affidavit filed in support of
the application, the deponent has merely stated that since the
power of attorney was produced before the Criminal Court by
respondent No.2/defendant No.1, the appellant has not produced
the same before the Trial Court. In this context, it is relevant to
note that the documents produced along with the application are
only photocopies and not the originals. There is no explanation by
the appellant as to why even the photocopies were not produced
before the Trial Court or the First Appellate Court. Although the
defendant No.1 has admitted in the cross-examination that the
original power of attorney is in his custody, till date the same has
not been produced.
36. The said power of attorney being disputed and keenly
contested by the plaintiff, at the second Appellate Court, it would
be detrimental to allow the photocopies to be produced without
any explanation by the appellant as to why only photocopies are
being produced at the 2nd Appellate stage.
37. In view of the aforementioned, the appellant has not
made out any ground for allowing of the applications and hence,
I.A No.2/2006 and I.A No.1/2009 are liable to be rejected.
38. In view of the concurrent findings recorded by both
the Courts, having regard to the fact that, the defendant No.1 has
not demonstrated that he has been authorized by plaintiff to
alienate the suit property and the appellant having failed to
demonstrate that the said concurrent findings have been recorded
without reference to any specific, oral or documentary evidence
on record, the substantial questions of law framed by this Court
are answered in the negative.
39. Hence, the following:
ORDER
i. I.A Nos.2/2006 and 1/2009 are dismissed.
ii. The above appeal is dismissed.
iii. The judgment and decree dated 01.2.2005 passed in
O.S No.200/2002 by the Civil Judge (Sr.Dn), Hangal,
as affirmed by the judgment dated 03.4.2006 passed
in R.A No.25/2005 by the learned Fast Court, Haveri,
are confirmed.
iv. The parties to bear their respective costs.
Sd/-
JUDGE
PMP/ BS
