Madhya Pradesh High Court
Jitendra Singh vs Smt Pushpa Devi W/O Shri Raghvendra ... on 15 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
1 MA-2588-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 15th OF MAY, 2025
MISC. APPEAL No. 2588 of 2023
JITENDRA SINGH
Versus
SMT PUSHPA DEVI W/O SHRI RAGHVENDRA SINGH AND OTHERS
Appearance:
Mr. Naval Kumar Gupta - Senior Advocate with Mr. Yashasvi Pratap
Singh Rathore - Advocate for the petitioner.
Mr. Santosh Agrawal - Advocate for the respondents.
ORDER
The appellant/defendant no.1 has filed this miscellaneous appeal
under Order 43 Rule 1(u) of CPC challenging the judgment, dated
19.04.2023, passed by the 4th District Judge, Bhind in Regular Civil Appeal
No.74/2017, whereby learned First Appellate Court has set aside the
judgment and decree passed by the Trial Court and after allowing the
application under Order 41 Rule 27 of CPC, has remitted the case for fresh
decision to the Trial Court.
2 . For convenience, the appellant and respondents are referred as
plaintiff and defendants as per their respective status in the civil suit.
3 . The facts relevant for decision of this appeal are that the plaintiff
and defendants no.2 & 3 belong to the same family while defendant no.1 has
no relation with plaintiff's family. The plaintiff filed a suit for declaration of
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
2 MA-2588-2023
title, possession & mesne profit's against the defendants inter-alia pleading
that land bearing Survey No.1511, 1512 & 1513 situated at Village
Dhonchra, District Bhind (M.P.) is jointly owned by plaintiff and defendants
no.2 & 3. The defendant no.1 has his land adjoining to the plaintiff's
aforesaid land, which bears Survey No.1509 & 1510. The defendant no.1
requested the plaintiff for grant of piece of land out of Survey No.1511,
which was adjoining to the road, for the purpose of construction of a temple.
He orally promised that he would give equal size of land out of his land in
exchange. On the assurance of defendant no.1 and after the advice of elders
of the village, plaintiff along with defendant no.2 & 3 gave 5 beegha land out
of Survey No.1511 to defendant no.1 for construction of temple. Temple has
been constructed accordingly. However, defendant no.1 did not give in
exchange the land as promised by him. When the plaintiff asked for the land,
defendant no.1 started quarreling with them and on 25.04.2014, defendant
no.1 along with his son started raising boundary wall over the entire area of
Survey No.1511. The plaintiff, therefore, was constrained to file the present
suit for declaration of his title, along with defendants no.2 & 3, over the suit
property, restoration of their possession and for mesne profits against the
defendants. The dispute in this case is with regard to piece of land of Survey
No.1511 over which the temple is constructed.
4. The defendant no.1 filed his written statement and denied the plaint
averments. As per his submissions made in the written statement, names of
plaintiff and defendant no.2 & 3 is recorded over Survey No.1511. However,
they were never in possession of the said land. He claimed title and
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
3 MA-2588-2023
possession over Survey No.1511 since 18.08.1995. As per the pleadings
made in the written statement, the land was uneven and in January' 2001, he
got the same levelled. However, the land was not cultivated for agricultural
purposes. He has further pleaded that the plaintiff expressed his wish to
construct the temple to which son of the defendant no.1 agreed to bear
expenses towards construction of temple. Construction of temple was started
in the June' 2001 and completed in 2002. He denied that he ever made any
oral promise for exchange of land.
5. The learned Trial Court after taking evidence of plaintiff as well as
defendants dismissed the suit vide judgment, dated 31.08.2017. As per the
discussion made in the judgment, in para 13, learned Trial Court observed
that plaintiff has not disclosed that as to whether any partition took place
between the family members. In para 14, the Court observed that the
plaintiffs have failed to specifically plead about the nature of land bearing
Survey No.1511 and no revenue record including khasra/khatoni has been
produced showing their names in the revenue records. In para 15 & 16, the
learned Trial Court held that exchange of land could be done only by way of
registered instrument and no such instrument is produced on record by the
plaintiff. Therefore, plaintiff's plea of oral promise of exchange of land was
also not held proved.
6. The plaintiff being aggrieved by the judgment & decree passed by
the Trial Court filed regular first appeal under Section 96 of CPC. Along
with appeal, he also filed an application under Order 41 Rule 27 of CPC
bringing on record, the revenue records regarding the suit property, by way
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
4 MA-2588-2023
of additional evidence. It is stated in the application that these documents
were duly provided by him to his counsel. However, for reasons not known
to them, these documents were not produced before the Trial Court. He
submitted that since the suit has been dismissed by the Trial Court for want
of revenue record in support of plaintiffs' case, these documents are relevant
for decision of the case. The defendant no.1 opposed the said application on
the ground that these documents ought to have been produced before the
Trial Court.
7 . The Appellate Court vide impugned judgement allowed the
application under Order 41 Rule 27 of CPC and permitted the plaintiff to
bring on record the revenue documents, by way of additional evidence. In
view of allowing the application, the learned Appellate Court set aside the
judgment & decree passed by the Trial Court and remitted the matter for
fresh decision.
8. Challenging the impugned judgment, learned senior counsel for the
appellant submitted that the documents sought to be produced along with the
application are not relevant, inasmuch as the Trial Court has held that in
absence of any registered instrument, the plaintiff's claim with regard to
exchange of land cannot be held established. It is his submission that since
such document is still not produced, the revenue record sought to be
produced along with the application are not relevant. It is further submitted
that provisions of Order 41 Rule 23-A of CPC are not attracted in the facts
of the present case and, therefore, the Appellate Court erred in setting aside
the judgment and decree passed by the Trial Court and remanding the matter.
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
5 MA-2588-2023
He submitted that retrial of the matter is not warranted in the facts and
circumstances of the case.
9 . On the other hand, learned counsel for the plaintiffs supported the
impugned judgment and submitted that since the Trial Court dismissed the
suit for want of revenue records in support of plaintiff's case, the documents
sought to be produced by way of additional evidence are relevant and the
Appellate Court is justified in remanding the matter.
10. Considered the arguments and perused the records.
11 . From the pleading made by the parties, it is evident that the
plaintiff's title over the land bearing Survey No.1511 is not in dispute vis-a-
vis defendant no.1. Pertinently, the defendant no.1 has, though claimed his
title over land bearing Survey No.1511, but has not filed any document to
establish his title. He is the owner of adjoining land bearing Survey No.1509
& 1510, is also admitted between the parties. Thus, non-filing of title
document by plaintiffs in respect of land bearing Survey No.1511 is
inconsequential as against defendant no.1. In fact, the defendant no.1
specifically pleaded in para-1 of his written statement that names of plaintiff
and defendants no.2 & 3 are recorded in the revenue records in respect of
Survey No.1511 & 1512. Therefore, the observation of learned Trial Court
that revenue records in support of the plaintiff's claim losses its significance.
Now the plaintiff has produced the relevant revenue records which will have
important bearing over the outcome of the civil suit.
12. As far as the objection of the counsel for the appellant that the
exchange deed is still not produced, it is to be seen that suit has been filed for
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
6 MA-2588-2023
restoration of plaintiff's possession over land bearing Survey No.1511.
Therefore, even if the exchange deed is not filed, the plaintiff can still ask for
declaration of his title over the Survey No.1511, over which the defendant
no.1 does not have any right, title or interest. Therefore, merely because the
plaintiff has failed to produce on record the exchange deed, it cannot be said
that the documents consisting of revenue records are not relevant for
decision of the suit.
13. The power of Appellate Court under Order 41 Rule 27 of CPC is
well defined. The Appellate Court, if requires any document to be produced
to enable it to pronounce a judgment or if such document is necessary for
any other substantial cause can allow such evidence or document to be
produced by way of additional evidence. The Apex Court has dealt with the
power of Appellate Court under Order 41 Rule 27 of CPC in the case of
Sanjay Kumar Singh Vs. State of Jharkhand, reported in (2022) 7 SCC 247,
wherein in para - 7 it is held as under :
"7. It is true that the general principle is that the appellate court should
not travel outside the record of the lower court and cannot take any
evidence in appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional evidence in
exceptional circumstances. It may also be true that the appellate court
may permit additional evidence if the conditions laid down in this Rule
are found to exist and the parties are not entitled, as of right, to the
admission of such evidence. However, at the same time, where the
additional evidence sought to be adduced removes the cloud of doubt
over the case and the evidence has a direct and important bearing on
the main issue in the suit and interest of justice clearly renders it
imperative that it may be allowed to be permitted on record, such
NEUTRAL CITATION NO. 2025:MPHC-GWL:11461
7 MA-2588-2023
application may be allowed. Even, one of the circumstances in which
the production of additional evidence under Order 41 Rule 27
CPC by the appellate court is to be considered is, whether or not the
appellate court requires the additional evidence so as to enable it to
pronouncement judgment or for any other substantial cause of like
nature."
1 4 . Thus, in view of the discussion made above, as also the legal
proposition with regard to the Appellate Court power under Order 41 Rule
27 of CPC, it cannot be said that the exercise of discretion by the Appellate
Court in allowing the application under Order 41 Rule 27 of CPC is illegal.
Further, since additional evidence is allowed, retrial of the suit is rightly
considered necessary by the Appellate Court exercising its power under
Order 41 Rule 23 CPC. Thus, the direction of Appellate Court to remand the
matter for fresh decision by the Trial Court is also justified.
15. For the reasons stated above, no illegality is found in the judgment
passed by the Appellate Court. the same is accordingly upheld. The appeal is
hereby dismissed.
(ASHISH SHROTI)
JUDGE
bj/-
