Jagdish Prasad (Dead) Through Lrs ... vs Sampatlal (Dead) Through Lrs Smt. ...
2023 Latest Caselaw 6358 MP

                             1                 S.A. No.485/2000


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 20th OF APRIL, 2023
              SECOND APPEAL No. 485 of 2000
BETWEEN:-

1.   JAGDISH PRASAD (DEAD) THROUGH LRS
     RAKESH KUMAR S/O LATE SHRI JAGDISH
     PRASAD CHIKWA, AGED ABOUT 42 YEARS, R/O
     AZAD CHOWK KATNI TEHSIL AND JILA KATNI
     (MADHYA PRADESH)



2.   SHAILESH KUMAR CHIKWA S/O LATE SHRI
     JAGDISH PRASAD CHIKWA, AGED ABOUT 38
     YEARS, R/O AZAD CHOWK KATNI TEHSIL AND
     JILA KATNI (MADHYA PRADESH)



3.   DEPESH KUMAR CHIKWA S/O LATE SHRI
     JAGDISH PRASAD CHIKWA, AGED ABOUT 32
     YEARS, R/O AZAD CHOWK KATNI TEHSIL AND
     JILA KATNI (MADHYA PRADESH)



4.   SMT JYOTI W/O THAKUR PRASAD KHATIK D/O
     LATE SHRI JAGDISH PRASAD CHIKWA, AGED
     ABOUT 34 YEARS, R/O KHAI MOHALLA
     HANUMANTAL THANE KE PICHHE JABALPUR
     (MADHYA PRADESH)



5.   SMT. NEETU W/O SHRI DEEPAK KUMAR
     KUKRELE D/O LATE SHRI JAGDISH PRASAD
     CHIKWA, AGED ABOUT 30 YEARS, R/O KHAI
     MOHALLA HANUMANTAL THANE KE PICHHE
     JABALPUR (MADHYA PRADESH)



                                               .....APPELLANTS
(BY SHRI RAVI SHANKAR SAHU- ADVOCATE)
                              2                  S.A. No.485/2000



AND

1.    SAMPATLAL (DEAD) THROUGH LRS SMT.
      SHANTI BAI ALIAS BADKIYA W/O SAMPATLAL,
      AGED ABOUT 50 YEARS, R/O GATERGHAT
      AZAD CHOWK, KATNI (MADHYA PRADESH)



2.    SMT. SAROJ D/O SAMPATLAL, AGED ABOUT 35
      YEARS, R/O GATERGHAT AZAD CHOWK,
      KATNI (MADHYA PRADESH)



3.    SMT. LACHCHI BAI D/O SAMPATLAL, AGED
      ABOUT 33 YEARS, R/O GATERGHAT AZAD
      CHOWK, KATNI (MADHYA PRADESH)



4.    SMT. MADHU BAI D/O SAMPATLAL, AGED
      ABOUT 30 YEARS, R/O GATERGHAT AZAD
      CHOWK, KATNI (MADHYA PRADESH)



5.    KUMARI SIMA D/O SAMPATLAL, AGED ABOUT
      28 YEARS, R/O GATERGHAT AZAD CHOWK,
      KATNI (MADHYA PRADESH)



6.    SHRI SANTOSH RAJAK S/O SAMPATLAL, AGED
      ABOUT 26 YEARS, R/O GATERGHAT AZAD
      CHOWK, KATNI (MADHYA PRADESH)



7.    SHRI MANOJ RAJAK S/O SAMPATLAL, AGED
      ABOUT 24 YEARS, R/O GATERGHAT AZAD
      CHOWK, KATNI (MADHYA PRADESH)



8.    RAM KUMAR (DEAD) THROUGH SMT.
      CHUTKIYA BAI  W/O   LATE SHRI
      RAMKUMAR RAJAK, AGED ABOUT 71
                                   3                   S.A. No.485/2000


      YEARS, R/O AZAD         CHOWK,      KATNI
      (MADHYA PRADESH)



9.    BANTU W/O LATE SHRI RAMKUMAR
      RAJAK, AGED ABOUT 53 YEARS, R/O AZAD
      CHOWK, KATNI (MADHYA PRADESH)



10.   PAWAN KUMAR RAJAK S/O LATE SHRI
      RAMKUMAR RAJAK, AGED ABOUT 51
      YEARS, R/O AZAD CHOWK, KATNI
      (MADHYA PRADESH)



11.   RAKESH KUMAR RAJAK S/O LATE SHRI
      RAMKUMAR RAJAK, AGED ABOUT 49
      YEARS, R/O AZAD CHOWK, KATNI
      (MADHYA PRADESH)



12.   SMT. SARITA RAJAK D/O LATE SHRI
      RAMKUMAR RAJAK, AGED ABOUT 47
      YEARS, R/O AZAD CHOWK, KATNI
      (MADHYA PRADESH)



13.   SMT. ANTU RAJAK D/O LATE SHRI
      RAMKUMAR RAJAK, AGED ABOUT 45
      YEARS, R/O AZAD CHOWK, KATNI
      (MADHYA PRADESH)



                                                    .....RESPONDENTS
(BY SHRI ISHTEYAQ HUSSAIN- ADVOCATE FOR LRS OF RESPONDENT NO.
2. )
      This appeal coming on for admission this day, the court passed the

following:
                                     4                       S.A. No.485/2000


                                  JUDGMENT

This Second Appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 11.01.2000 passed by Additional Judge to the Court of First Additional District Judge, Katni in Civil Appeal No. 11A/1991 arising out of the judgment and decree dated 27.03.1991 passed by Additional Civil Judge Class-I, Katni, District Katni in Civil Suit No.189-A/1973.

2. The crux of the matter, in short, is that the plaintiff/appellant filed a suit for possession of the disputed land area 0.0008 hectare which according to the plaintiff was purchased by his father by registered sale deed dated 05.03.1973. The said sale deed was executed by one Anil Kumar with the consent of Vishwanath Prasad Ahirwar. It was the case of the plaintiff that after the execution of the sale deed, the possession of the same was given. In the last week of July, 1975, the defendants started putting building material which was objected by the father of the plaintiff and the defendants were directed to vacate the premises but the land was not vacated by the defendants. Accordingly, father of the plaintiff made a complaint to the Police on 14.08.1975. Accordingly the proceedings under Section 145 of Cr.P.C. were initiated and the SDO by order 23.03.1978 directed for delivery of possession to the plaintiff but the order of the SDO was set aside by the Additional Sessions Judge, Katni in Revision No. 28/1978. The father of the plaintiff expired on 31.08.1975 and, therefore, the plaintiff being the elder son of the Bhagwan Das is the Karta of the family. Thus, it was prayed that the defendants have no right or title in the land in dispute.

3. The defendants filed their written statement and denied the plaint

averments except the execution of the sale deed dated 05.03.1973 in favour of the father of the plaintiff. Other plaint averments as mentioned in paragraph 1 of the plaint were denied. The pleadings that the defendants have put their building material on the land in dispute were also denied. The plaint map annexed with the plaint was denied and in fact it was claimed that the correct map is being attached along with the written statement. It was claimed that the defendants are using the house as well as the courtyard constructed by their father. The proceedings under Section 145 of Cr.P.C. were admitted and it was mentioned that in the said proceedings the Patwari had specifically made a statement that Khasra No. 394/1 is situated at a distance of 50 to 60 feet from the disputed property. The order of SDO was set aside by the Additional Sessions Judge, Katni in Revision No. 28/1978. In additional pleadings, it is mentioned that the said suit is barred by time. The plaintiff was never in possession of the land in dispute. In fact the courtyard of the defendants is in their possession for last 24 years and accordingly even on the basis of adverse possession they have perfected their title. The other averments made in the plaint were also denied.

4. The trial Court after framing issues and recording evidence, dismissed the suit on the ground that the plaintiff has failed to prove that vender of the plaintiff i.e. Anil Kumar was the owner of the land in dispute and, therefore, it was held that no title stood transferred to the father of the plaintiff by sale deed. It was also held that the plaintiff has failed to produce and prove the gift deed in favour of his vender.

5. Being aggrieved by the judgment and decree passed by the trial Court the appellant preferred an appeal.

6. An application under Order 41 Rule 27 of C.P.C. was filed along with sale deed dated 20.07.1952 executed by Pitamber Prasad and Mohanlal in favour of Vishawanath Prasad. It is submitted by the counsel for the appellants that the First Appellate Court has wrongly rejected the application filed under Order 41 Rule 27 of C.P.C. by holding that the reasons have not been assigned in the affidavit. In the affidavit which was filed in support of the application under Order 41 Rule 27 of C.P.C. it was specifically mentioned that the contents of the application are correct.

7. Considered the submissions made by the counsel for the appellants.

8. The application filed under Order 41 Rule 27 of the C.P.C. reads as under:-

**Lke{k% U;k;ky; Jheku izfke vfr- ftyk U;k;k/kh'k ds vfr- U;k;k/kh'k [email protected]

iz-Ø- [email protected]@91

txnh'k izlkn fpdok ---------vihykFkhZ

fo:)

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vkosnu i= varxZr vkns'k 41 fu;e 27 O;ogkj izfØ;k lafgrk-

vihykFkhZ lfou; fuosnu djrk gS %&

¼1½ ;g fd [email protected] mijksDr izdj.k esa ,d foØ; i= fnukad 20-07-1952 dk izekf.kr lR;izfrfyfi is'k djuk pkgrk gS tks fo'oukFk izlkn us ihrkEcj izlkn o eksgu yky dkNh ds i{k esa fu"ikfnr dj [kljk uEcj&394 jdck 1-62 ,dM+ esa ls 1-57 ,dM+ tehu cspk Fkk rFkk okn xzLr 2 fMlfey Hkwfe fo'oukFk izlkn us cpk fy;k FkkA

¼2½ ;g fd ykyk fo'oukFk izlkn us mDr Hkwfe uRFkw yky uxfj;k ls

28-01-1948 ds foØ; i= ds }kjk [kjhnk FkkA ;g rF; Hkh mDr foØ; i= esa ntZ gSA

¼3½ ;g fd mijksDr foØ; i= dh QksVks dkih oknh us fopkj.k U;k;ky; esa izLrqr fd;k Fkk ijUrq ewy lR;fyfi [kks tkus ds dkj.k mDr nLrkost fl) ugha fd;k tk ldrkA ijarq vc og izkIr gks x;k gSA

¼4½ ;g fd mDr lR; izfrfyfi yksd nLrkost gS] ftls fcuk fdlh vkSipkfjd lk{; ds i<+k tk ldrk gSA

¼5½ ;g fd ;fn mDr nLrkost fjdkMZS ij ugha fy;k x;k rks vihykFkhZ dks vR;kf/kd {kfr gksxhA vihy ds mfpr fujkdj.k gsrq nLrkost dk fjdkMZ ij fy;k tkuk vfr vko';d gSA

izkFkZuk

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[email protected] 3-12-99 vf/k- [email protected]**

9. In paragraph 3 of the said application, it was contended by the appellant that the photocopy of the said sale deed was filed before the trial Court and since the original sale deed was misplaced, therefore, it could not be exhibited. Accordingly, the counsel for the appellants was directed to point out from the record of the trial Court that an attempt was made by the appellant/plaintiff to get the sale deed dated 20.07.1952 exhibited but the same was not allowed for want of original document.

10. The counsel for the appellants fairly conceded that the reasons assigned in the application were not correct and no attempt was ever made by the appellant to even produce the photocopy of the sale deed dated 20.07.1952. Thus, it is clear that the reasons assigned in the application filed under order 41 Rule 27 C.P.C. was in correct. Under these circumstances, this Court is of the considered opinion that the First Appellate Court rightly rejected the application under Order 41 Rule 27

of C.P.C., although on different grounds.

11. It is next contended by the counsel for the appellants that in this appeal, the appellants have filed I.A. No. 668/2018, an application under Order 41 Rule 27 of C.P.C. along with gift deed which was executed in favour of the Anil Kumar.

12. The application under Order 41 Rule 27 of C.P.C. reads as under:-

**le{k ekuuh; mPp U;k;ky; e/;izns'k eq[; ihB tcyiqj

f}rh; vihy Ø- [email protected]

txnh'k izlkn e`r mRrjkf/kdkjhx.k vihykFkhZx.k

Jherh f[kEek ckbZ o vU;

fo:)

Jherh 'kkafr ckbZ o vU; izfrvihykFkhZx.k

vkosnu i= varxZr vkns'k 41 fu;e 27 lgifBr /kkjk 151 O;ogkj izfØ;k lafgrk okLrs lwph vuqlkj nLrkost vfHkys[k ij ysus gsrq %

vihykFkhZx.k fuEukuqlkj izLrqr djrs gS %&

1- ;g fd vihykFkhZx.k us ekuuh; U;k;ky; esa mijksDr vihy izfrvihykFkhZx.k ds fo:) izLrqr dh gS tks ekuuh; U;k;ky; esa fopjk/khu gSA

2- ;g fd foØsrk vfuy dqekj vxzoky dks mlds firk fo'oukFk vxzoky ds }kjk jft0 cD'kh'kukek fnukad 11-07-1963 ds }kjk izkIr gqbZ Fkh ftls foØsrk us vihykFkhZx.k ds nknk Hkxokunkl mQZ Hkxksyk dks fnukad 05-03-1973 dks foØ; dh FkhA

3- ;g fd vihykFkhZx.k dks mijksDr cD'kh'kukek ds ckjs esa ekywe gksus ij vihykFkhZx.k us jft0 vkfQl dVuh ls fnukad 28-12-2017 dks izekf.kr lR;izfrfyfi izkIr djus ds fy;s vkosnu i= nsdj fudyok;h gS rFkk ikap lkyk [kljk 2017&18 tks izdj.k ds mfpr fujkdj.k ds fy;s vko';d gSA

4- ;g fd izfrvihykFkhZx.k us vius tokcnkok o xokgh esa dgk gS fd foØsrk dks okn xzLr tehu dks foØ; djus dk dksbZ vf/kdkj ugh Fkk vkSj foØsrk dks mijksDr tehu dSls izkIr gqbZ bl laca/k esa dksbZ nLrkost izLrqr

ugh fd;s gS ,slh fLFkfr esa izdj.k ds mfpr fujkdj.k ds fy;s vko';d gSA

5- ;g fd vihykFkhZx.k vkosnu i= ds leFkZu es 'kiFk i= is'k djrs gSA

izkFkZuk

vr% izkFkZuk gS fd U;k; fgr esa cD'kh'kukek fnukad 05-03-1973 ,oa ikap lkyk [kljk 2017&18 dks vfHkys[k esa fy;s tkus dk vkns'k ikfjr djus dh n;k djsAa

tcyiqj

fnukad 11-01-2018 vihykFkhZx.k

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13. From the plain reading of this application it is clear that no reason has been assigned as to why the aforesaid gift deed was not produced before the trial Court.

14. Order 41 Rule 27 of C.P.C. 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 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."

15. According to the plain reading of the aforesaid provision, it is clear that unless and until it is specifically pleaded that in spite of due diligence, the document was not in the knowledge or in possession of the party, he will not be permitted to file an additional evidence at the appellate stage.

16. The suit filed by the plaintiff was dismissed by the trial Court on the ground that the plaintiff has failed to prove the title of his vender. Thus, at least on the date of judgment by the trial Court, the plaintiff was aware of the fact that he has been non-suited on the ground that the appellant/plaintiff has failed to prove the title of the vender to alienate the suit property. In spite of that no attempt was made by the appellants to obtain the copy of the gift deed. Thereafter, the appeal was filed in the year 2000 and according to this application, an application for obtaining the certified copy of the gift deed was made on 28.12.2017 i.e. 17 long years after filing of this appeal and except mentioning that the gift deed is essential for just decision of this case, nothing has been mentioned as to why the appellants were sleeping in the matter.

17. It is true that this Court in order to pass a just decision can also

entertain an application under order 41 Rule 27 of C.P.C. but that discretion is not to be exercised in favour of the litigant who was negligent in contesting their case. If the plaintiff was not vigilant to contest his case, then the defendants cannot be made to suffer specifically when the suit was filed in the year 1978 and 45 long years have already passed.

18. Since, no reason has been assigned to point out as to why the appellants could not file the copy of the gift deed before the Courts below, this Court is of the considered opinion that no case is made out for entertaining I.A. No. 668/2018, an application under Order 41 Rule 27 of C.P.C. and accordingly, it is rejected. The appellants have been non-suited on the ground that he has failed to prove the title of his vender.

19. As the counsel for the appellants could not point out in perversity in the said findings, accordingly, no substantial question of law arises in the present appeal.

20. Ex-consequentia, judgment and decree dated 11.01.2000 passed by Additional Judge to the Court of First Additional District Judge, Katni in Civil Appeal No. 11A/1991 and the judgment and decree dated 27.03.1991 passed by Additional Civil Judge Class-I, Katni, District Katni in Civil Suit No.189-A/1973 are hereby affirmed.

21. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.04.21 15:02:30 +05'30'