Patna High Court
Suresh Prasad vs Jahan Aara Khatoon on 11 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1691 of 2018
======================================================
1.1. Anil Kumar, Son of Late Suresh Prasad, Resident of Nabiganj Surain,
Eastern Sarain alias Tehta, P.S. Makhdumpur, P.O. Tehta, District Jehanabad,
Pin - 804427.
1.2. Maya Devi, Daughter of Late Suresh Prasad, Wife of Anil Prasad, resident
of mohalla and P.S. Belaganj, District Gaya.
1.3. Baby Devi, Daughter of Late Suresh Prasad, wife of Dharampal Prasad,
resident of mohalla Mashaurhi Main Road, P.S. Mashaurhi, Dist. Patna.
1.4. Mala Kumari, Daughter of Late Suresh Prasad, resident of Nabiganj Surain,
Eastern Sarain alias Tehta, P.S. Makhdumpur, P.O. Tehta, District -
Jehanabad, Pin - 804427.
2. Sushila Devi W/o Suresh Prasad Both are Resident of Nabiganj Surain,
Eastern Sarain alias Tehta, P.S. Makhdumpur, P.O. Tehta, District-
Jehanabad.
... ... Petitioner/s
Versus
1. Jahan Aara Khatoon W/o Late Nishar Ahmad, Resident of Nabiganj Surain,
Eastern Sarain alias Tehta, P.S. Makhdumpur, P.O. Tehta, District Jehanabad.
2. Md Ansar@ Shazada S/o late Nishar Ahmad
3. Md. Anwar@ Laddu S/o late Nishar Ahmad
4. Juli Khatoon W/o Iftekhar
5. Nazia Pravev@ Golu Khatoon W/o Md. Shabeen @ Munna
6. Md Naushad Ahmad S/o late Md. Nezaumddin All are residents of Village
Nabiganj Surain, Eastern Sarain alias Tehta, P.S. Makhdumpur, P.S. Tehta,
District- Jehanabad.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ray Saurabh Nath, Advocate
Mr. Manjari Nath, Advocate
Mrs. Shalini Sinha, Advocate
For the Respondent/s : Mr. Raghib Ahsen, Sr. Advocate
Mr.Wasi Akhtar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 11-01-2024
The present petition has been filed by the petitioners
for setting aside the order dated 04.09.2018 passed by the
learned Fast Track Court-II, Jehanabad in Title Appeal
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
2/16
No.02/2016/02/2017 rejecting the petition dated 13.04.2018
filed by the appellants/petitioners under Order 41 Rule 27 of the
Code of Civil Procedure (hereinafter referred to as the 'CPC')
for bringing certain documents on record as exhibits with other
reliefs.
2. Briefly stated, the case of the petitioners is that they
are plaintiffs before the learned trial court and they filed Title
Suit No. 09 of 2005 against the defendants/respondents for
declaration and confirmation of possession over 5 decimals land
situated at Plot No.5209/3658 under Khata No.34/575 at village-
Nabiganj Saran @ Tehta, P.S.-Makhdumpur, District-Jehanabad.
3. According to the plaintiffs, one Sukan Ram, the
grandfather of the plaintiff no.1 had purchased 4 decimals land
out of Plot No.3658 on 20.01.1929 from Ram Chandra Ram and
Lakshmi Ram, both sons of Hiraman Ram. After purchase, the
grandfather of the petitioner came in possession over the suit
land and after his demise, his son and, thereafter, his grandson
(the plaintiff) came into possession. Further, on 28.09.1935, the
said Sukan Ram had purchased 1 Katha 1 Dhoor of land out of
Plot No.3658 and came into its possession. Thereafter, on
29.05.1950
, a sale deed was executed by one Nand Lal Ram,
maternal grandfather of one Ayodhya Prasad, in favour of
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
Ramun Devi, wife of Ayodhya Prasad for an area measuring 7 ½
decimals of land in Plot No. 3658. Further case of the plaintiffs
is that on 30.10.1986, the said Ayodhya Prasad sold 1 & ½
decimals of land from Plot No. 3658 (Old)/5209 (New) to the
original petitioner no.1 (plaintiff no.1), who gifted the said
property to his wife (petitioner no.2) and she has been coming in
possession over it since the date of gift. Thereafter, on
27.01.2000, the petitioner no.2 purchased 5 decimals of land
from Plot No.3658 (Old)/5209 (New) and, thus, the petitioner
no.2/plaintiff no.2 held title and possession over 6 ½ decimals of
land and the original petitioner no.1 became entitle for 8
decimals of land since 4 decimals was transferred vide sale deed
dated 20.01.2029 and 1 Katha 1 Dhoor vide sale deed dated
28.09.1935. Thus, total area of both the plaintiff nos. 1 and 2
(petitioner nos. 1 & 2) has become 8 decimals+6 ½ decimals=14
½ decimals.
4. The defendants/respondents appeared in the learned
court below and contested the suit by filing written statement.
During the pendency of the suit, the plaintiffs filed a petition
dated 13.12.2012 for taking in evidence and marking as exhibits
the certified copies of the original sale deeds dated 21.01.1929
and 28.09.1935/19.10.1935. Further, on 13.12.2012, the
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
plaintiffs filed a petition under Section 74 of the Indian
Evidence Act, 1872 for taking documentary evidence and
marking as exhibits the cadestral survey khatiyan. Thereafter,
the plaintiffs filed one more petition dated 13.12.2012 for
bringing on record the original copy of sale deed dated
27.01.2000 and made a prayer before the learned Sub-Judge-IV,
Jehanabad to allow him to file original copy of the deed and to
return the certified copy. On the same day, i.e., 13.12.2012, the
plaintiffs filed a petition to allow the plaintiffs/petitioners to
prove the custody of the sale deeds executed by Nand Lal Ram
and Ram Chandra Ram in favour of Sukan Ram, submitting that
two sale deeds have been filed in the learned court from the
custody of the plaintiff no.1/original petitioner no.1. Then, the
plaintiffs again filed a petition dated 06.02.2015 for recall of the
order dated 04.09.2014 whereby the evidence of the
plaintiffs/petitioners was closed without marking the sale deeds
executed by Nand Lal Ram and Ram Chandra Ram as exhibits.
5. Further case of the plaintiffs/petitioners is that
without appreciating the aforesaid petitions filed on behalf of
the plaintiffs/petitioners, the learned Sub-Judge-III, Jehanabad
dismissed the Title Suit No.09/2005 on 02.11.2015 although the
learned court below also recorded some findings on the
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
registered sale deed dated 29.05.1950.
6. Aggrieved by the aforesaid judgment dated
02.11.2015 passed in Title Suit No.09/2005, the
plaintiffs/petitioners filed appeal before the learned District
Judge, Jehanabad which was registered as Title Appeal No. 02
of 2016.
7. Since the learned appellate court failed to mark vital
documents as exhibits, the appellants/petitioners filed an
application under Order 41 Rule 27 CPC before the learned first
appellate court for marking the certified copy of C.S and R.S.
Khatiyan as exhibits and in the said application, it was also
submitted that the plaintiffs/petitioners filed an application dated
13.04.2018 for marking three registered sale deeds of the years
1929, 1935 and 1950 as exhibits which were more than 30 years
old documents and were produced before the learned Sub-
Judge-III, Jehanabad, but the said documents were not marked
as exhibits. The respondents objected to the said application by
filing a reply on 21.04.2018. However, learned appellate court
rejected the application dated 13.04.2018 by the impugned
order.
8. The learned counsel appearing on behalf of the
appellants/petitioners submitted that the order of the learned
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
first appellate court is wrong and incorrect in view of the facts
on record. The learned first appellate court did not consider the
specific provision of Order 41 Rule 27 of the CPC since it
provides that the court from whose decree the appeal is
preferred has refused to admit evidence which ought to have
been admitted and also that if 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 was bound to allow such evidence or
document to be brought on record. The learned counsel further
submitted that the learned appellate court has given wrong
finding that the appellants/plaintiffs never took any step before
the learned lower court to adduce the documents in evidence
and has incorrectly recorded that the appellants/plaintiffs
wrongly pleaded in the petition that steps have been taken for
the same. The learned counsel further submitted that the
petitioners have brought on record copy of the applications
dated 13.12.2012 and 06.02.2015 which shows that the learned
trial court did not consider these applications and the
petitioners/plaintiffs were not at fault. The pleadings contained
the recital of the sale deeds sought to be brought on record by
the plaintiffs. Further, while dismissing the title suit, the learned
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
court below recorded its finding on registered sale deed dated
29.05.1950. This fact was not taken into consideration by the
learned first appellate court. Moreover, the plaintiffs filed the
application for marking the registered deeds of sale as exhibits
which were more than 30 years old and were produced from the
custody of the plaintiffs/petitioners. The C.S. Khatiya and R.S.
Khatiyan are public documents and are quite relevant since
these Khatiyans show that the vendors were having title over the
land in dispute. The learned first appellate court also failed to
take into consideration the fact that marking the aforesaid
documents as exhibits would not raise a new point in the
appellate court since all these documents are quite relevant for
the purpose of decision of the case before the learned appellate
court. Further, the learned trial court wrongly ignored to mark
the documents as exhibits which were sought to be exhibited at
the appellate stage. The learned first appellate court also failed
to appreciate that the documents sought to be exhibited were for
substantial cause to enable it to adjudicate the case and
pronounce the judgment. The learned counsel relied on the
decision of the Hon'ble Supreme Court in the case of Bipin
Shantilal Panchal vs. State of Gujarat and Ors., reported in
AIR 2001 SC 1158 wherein it has been held that the court
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
should take the documents on record and tentatively mark them
as exhibits and in case of objection, the objection could be
decided at the last stage in the final judgment. The learned
counsel further relied on the decision of the Hon'ble Supreme
Court in the case of Sanjay Kumar Singh vs. The State of
Jharkhand, reported in (2022) 7 SCC247 wherein it has been
held in paragraphs 7 to 11 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 27CPC 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 application may be allowed. Even, one
of the circumstances in which the production of
additional evidence under Order 41 Rule 27CPC 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 pronounce judgment or
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
for any other substantial cause of like nature.
8. As observed and held by this Court in
A. Andisamy Chettiar v. A. Subburaj Chettiar [A.
Andisamy Chettiar v. A. Subburaj Chettiar, (2015)
17 SCC 713 : (2017) 5 SCC (Civ) 514] , 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. It is further observed that 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.
9. Applying the law laid down by this
Court in the aforesaid decision to the facts of the
case on hand, we are of the opinion that while
considering the application for additional evidence,
the High Court has not at all adverted to the
aforesaid relevant consideration i.e. whether the
additional evidence sought to be adduced would
have a direct bearing on pronouncing the judgment
or for any other substantial cause. As observed
hereinabove, except sale deed 29-12-1987, which as
such was rejected, there was no other material
available on record to arrive at a fair market value
of the acquired land. Therefore, in the facts and
circumstances of the case, the High Court ought to
have allowed the application for additional
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
evidence. However, at the same time, even after
permitting to adduce the additional evidence, the
applicant has to prove the existence, authenticity
and genuineness of the documents including
contents thereof, in accordance with law and for the
aforesaid purpose, the matter is to be remanded to
the Reference Court.
10. In view of the above discussion and
for the reasons stated above, the present appeal is
partly allowed. Order passed by the High Court
rejecting IA No. 1384 of 2019 for adducing
additional evidence to bring on record the
documents mentioned in the said application is
hereby quashed and set aside. IA No. 1384 of 2019
filed before the High Court for adducing additional
evidence under Order 41 Rule 27CPC is hereby
allowed. The appellant herein is permitted to bring
on record the documents mentioned in IA No. 1384
of 2019 as additional evidence.
11. However, as observed and held by this
Court in Uttaradi Mutt v. Raghavendra Swamy Mutt
[Uttaradi Mutt v. Raghavendra Swamy Mutt, (2018)
10 SCC 484 : (2019) 1 SCC (Civ) 29] , allowing the
application filed under Order 41 Rule 27CPC does
not lead to the result that the additional
documents/additional evidence can be straightway
exhibited rather, the applicant would have to not
only prove the existence, authenticity and
genuineness of the said documents but also the
contents thereof, in accordance with law. It is
observed that thus the documents which are
permitted to be brought on record as additional
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
evidence have to be proved by the appellant before
the Reference Court, in accordance with law and
only thereafter and after proving the existence,
authenticity and genuineness of the said documents
including contents thereof, the same can be taken
into consideration by the Reference Court".
9. Countering the submission made on behalf of the
petitioners, the learned senior counsel appearing on behalf of the
respondents/defendants expressed doubt over manner of filing
of the petitions before the learned trial court by the
plaintiffs/petitioners for taking on record the sale deeds and
Khatiyan and marking them as exhibits. The learned counsel
further submitted that the plaintiffs/petitioners did not move
their application before the learned trial court. Neither did the
plaintiffs prove the custody of the documents namely, sale
deeds. Further, there was no refusal by the learned trial court so
as to allow by the first appellate court to take on record the
additional evidence on the petition of the plaintiffs/appellants.
The learned counsel further submitted that the petitioners have
filed an application before the learned trial court for production
of additional evidence only in order to fill up the lacunae and
have failed to show that notwithstanding the exercise of due
diligence, the petitioners could not have produced the
documents at an earlier stage. Thus, the learned counsel
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
submitted that the learned first appellate court passed a just and
reasonable order and the order does not require any interference
by this Court.
10. Having perused the record and considering the
submission made on behalf of the parties, I am of the view that
the petition of the petitioners must succeed. From perusal of the
record, it is evident that the petitioners as plaintiffs filed
application for bringing on record the sale deeds of the years
1929, 1935 and 1950 as well as Khatiyan of cadestral survey
and revisional survey and marking these documents as exhibits.
Copy of order sheet of learned trial court shows certain
applications were filed on 06.02.2015 and 13.12.2012 as
claimed by the petitioners. Further, the claim of the petitioners is
supported by Annexure P 2, P 3, P 4, P 5, P 6, P 13 to P 17.
Further, it is evident from the copy of the plaint (Annexure-P1)
that the aforesaid sale deeds find mention in the pleadings. The
learned trial court has also discussed these documents in its
finding.
11. Consideration of the aforesaid facts makes it clear
that the learned first appellate court recorded a wrong finding
when it observed that the plaintiffs did not take any step for
bringing the documents on record and marking them as exhibits.
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
Further, the learned first appellate court ought to have
considered the specific provisions of Order 41 Rule 27 of the
CPC which 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) Whenever additional evidence is
allowed to be produced by an Appellate Court, the
Court shall record the reason for its admission".
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
12. Obviously, the documents sought to be brought on
record and marked as exhibits by the petitioners/plaintiffs would
come in the category of documents/additional evidence which
was refused by the learned trial court though not specifically but
by implication.
13. Further, it also appears that the documents may
help the learned first appellate court to arrive at just and proper
finding in order to further the substantial cause of justice. The
Hon'ble Supreme Court in the case of Billa Jagan Mohan
Reddy vs. Billa Sanjeeva Reddy, reported in (1994) 4 SCC 659
has observed that it is settled law that, if the documents are
found to be relevant to decide the real issue in the controversy,
and when the court felt that the interest of justice requires, that
the documents may be received, exercising the power under
Order 41 Rule 27 CPC the appellate court would receive the
documents and consider their effect thereof.
14. In view of the aforesaid facts and circumstances
and discussions made here-in-before, I am of the opinion that
the learned first appellate court failed to exercise the jurisdiction
vested in it and, for this reason, I do not think the impugned
order dated 04.09.2018 passed in Title Appeal
No.02/2016/02/2017 could be sustained and, hence, the same is
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
set aside. Consequently, the application dated 13.04.2018 filed
on behalf of the appellants/plaintiffs/petitioners under Order 41
Rule 27 CPC is allowed. The petitioners are permitted to bring
on record the documents mentioned in the petition dated
13.04.2018 as additional evidence.
At this point of time, it would be relevant to point out
that allowing the petition filed by the petitioners/appellants
under Order 41 Rule 27 CPC does not mean the additional
documents/additional evidence can be straightway exhibited
rather, the petitioners/appellants would have to prove the
existence, authenticity and genuineness of the said documents
and also the contents thereof, as may be required by law, as has
been observed and held by the Hon'ble Supreme Court in the
case of Uttaradi Mutt v. Raghavendra Swamy Mutt, reported
in (2018) 10 SCC 484.
15. Accordingly, the instant petition stands allowed.
16. Since the appeal is pending before the learned
first appellate court since the year 2017, the learned first
appellate court is directed to dispose of the appeal pending
before it within six months from the date of receipt/production
of a copy of this judgment.
17. However, it is made clear that this Court has not
Patna High Court C.Misc. No.1691 of 2018 dt.11-01-2024
expressed anything on merits of the case of the respective
parties as well as documents permitted to be brought on record
as exhibits and it would be for the learned appellate court to deal
with the same in accordance with law and on its own merits, but
after giving ample opportunity to the respondents/defendants to
rebut/controvert the documents sought to be brought on record,
if they so desire.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR
CAV DATE 19.12.2023
Uploading Date 11.01.2024
Transmission Date N.A.
