Telangana High Court
D. Narayana Reddy vs Bandi Bikshapathi on 19 July, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
I.A.No.4 of 2022
In and
A.S.No.301 OF 2020
JUDGMENT:
Aggrieved by the judgment and decree dated 15.06.2020
in O.S.No.1062 of 2013 (hereinafter will be referred as
'impugned judgment') passed by the learned VIII Additional
District Judge, Ranga Reddy District at L.B.Nagar (hereinafter
will be referred as 'trial Court'), the plaintiff preferred the
present appeal to set aside the impugned judgment.
2. For the sake of convenience, the parties hereinafter are
referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the
appellant to file the present appeal are that, the plaintiff filed
suit for declaration, cancellation of documents and for delivery
of peaceful and physical possession in respect of suit schedule
property against the defendant Nos.1 to 3. The averments of the
plaint in brief are as under:
a) The father of the plaintiff by name Darga Malla Reddy was
the absolute owner and possessor of land in Sy. No. 38, 39, 43,
44, 153 and 154 situated at Peerzadiguda village, Ghatkesar
Mandal, Ranga Reddy District. That said Darga Malla Reddy
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was having five sons namely Darga Ram Reddy, Darga
Narayana Reddy/plaintiff, Darga Gopal Reddy, Darga Narsimha
Reddy and Darga Satti Reddy. During the life time, late Darga
Malla Reddy executed affidavit/declaration dated 17.09.1979 by
declaring the above said properties in favour of his five sons
equally with every right of conveyance, cultivation and
enjoyment and further he has no right, claim or interest over
the said properties. Thereafter plaintiff got mutated his share of
land in his name and he was issued Pattedar passbooks and
title deeds vide Patta No. 75, Book No. Z129433 and Title deed
No. 72, Book No.Z181143 in respect of land in Sy. Nos. 38
admeasuring A: 0-07 guntas Sy. No. 39 admeasuring Ac 3-18
guntas and Sy. No. 43/AA admeasuring Ac 1-20 guntas total
admeasuring Ac 5-05 guntas by paying necessary taxes to the
revenue authorities.
b) Thereafter the plaintiff has converted the land
admeasuring Ac 1-10 guntas in Sy. Nos. 39 and 43 into house
sites in the total plotted area 4800 square yards in total 6040
square yards and obtained layout permission from Peerzadiguda
Grampanchayat and sold out some of the plots to the
prospective purchasers and retained some of the plots including
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the plot No. 49 admeasuring 190 square yards in Sy. No. 39 and
43 i.e., the Suit Schedule Property. While the matter stood thus
defendant No. 3 with a malafide intention has filed a suit for
perpetual injunction vide O.S. No. 1231/2008 on the file of
Principal Junior Civil Judge, Ranga Reddy District wherein he
stated that he is in peaceful possession and enjoyment of the
Suit Schedule Property which he alleged to have purchased
from defendant No.2 vide registered Sale Deed bearing
document No. 2619/1994 date 18.04.1994 and in turn
defendant No.2 has purchased the same from defendant No.1
through registered Sale Deed bearing document No.5193/1991
dated 12.08.1991, who in turn purchased the said property i.e.,
Suit Schedule Property from the father of the plaintiff through
registered Sale Deed bearing document No.4354/1983 dated
24.11.1983. The plaintiff contested the matter by filing his
written statement by denying the alienation by his father and
other subsequent documents and the said suit was decreed
exparte against the plaintiff herein who filed a set aside petition
and the same is pending.
c) The father of the plaintiff divided his property amongst his
five sons way back in the year 1979 and plaintiff got mutated
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his share in the revenue records as such the question of
alienation of Suit Schedule Property in favour of defendant No.1
by the father of the plaintiff does not arise and as on the alleged
date of document bearing No. 4354/1983 dated 24.11.1983 the
entire Sy. Nos. 39 and 43 was an agricultural land the plaintiff
himself converted the said land into house sites by obtaining
the layout plan from the Grampanchayat Peerzadiguda and that
defendants have created the above said false documents and
trying to alienate the suit property and on 28.08.2013, plaintiff
came to know that the defendant No.3 is trying to alienate the
suit property to the third parties which may result in
multiplicity of litigation, hence filed the present suit.
4. The Defendant Nos. 1 and 2 remained exparte.
5. Defendant No.3 filed his written statement denying the
averments of the plaint and contended as under:
a) The defendant No.3 is the sole and absolute owner of plot
bearing No. 49, Western part admeasuring 210 square yards in
Sy. No.39 and 43 situated at Peerzadiguda village, Uppal
Mandal, R.R. District by virtue of Registered Sale Deed bearing
document No. 2619/1994 dated 18.04.1994 having purchased
the same from defendant No.2, who in turn purchased the same
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from defendant No.1 vide registered document bearing
document No. 5193/1991 dated 12.08.1991 and the said
defendant No.1 purchased the said property from the father of
the plaintiff vide registered document bearing No. 4354/1983
dated 24.11.1983.
b) The defendant No.3 got the house building plan approved
from Grampanchayat, Peerzadiguda on 26.05.2004 and
obtained construction loan of Rs.6,00,000/- from APSRTC
Employees Thrift and Credit Cooperative Society and
commenced the construction and the plaintiff and his son along
with henchmen came to the suit property on 19.10.2008 and
22.10.2008 and tried to encroach the same, as such the
defendant No. 3 approached the Police, Uppal and on the advise
of police, defendant No. 3 approached the Court and filed
O.S.No.1231/2008, which was decreed in favour of defendant
No. 3.
c) During the life time father of the plaintiff, Darga Malla
Reddy has converted the agricultural land into house plots and
sold out many plots and executed registered sale deeds in
favour of prospective purchasers, the copies of which were filed
by him for the perusal of the Court. Finally the Defendant No.3
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prayed to dismiss the suit.
6. Basing on the rival pleadings, the following issues were
framed for trial:
(i) Whether the plaintiff is entitled for declaration of his
right and title over suit schedule property?
(ii) Whether the plaintiff is entitled for declaration that the
registered sale deeds vide document Nos. 4351/1983
dated 24.11.1983, 5193/1991 dated 12.08.1991 and
2619/1994 dated 18.04.1994 are void documents?
(iii) Whether the plaintiff is entitled for the relief of
possession of the suit schedule property against the
defendants as prayed for?
(iv) To what relief?
7. The plaintiff examined himself as PW1 and Exs. A1 to A11
and Ex. X1 were marked. On behalf of defendant No.3, DW1
was examined and Exs. B1 to B10 were marked. On
considering the oral and documentary evidence adduced on
behalf of both the sides, the trial Court has dismissed the suit of
the plaintiff and aggrieved by the same, the plaintiff has filed
the present appeal to set aside the impugned judgment.
8. Heard both sides and perused the record including the
grounds of appeal.
9. Both the parties are claiming title over the suit schedule
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property from the original owner i.e., Darga Malla Reddy, who is
none other than the father of the plaintiff. Thus, there is no
dispute that father of the plaintiff Darga Malla Reddy was the
absolute owner and pattedar of agricultural lands including suit
schedule property in Sy. Nos. 38, 39, 43, 44, 153 and 154
situated at Peerzadiguda village, Ghatkesar Mandal, Ranga
Reddy District.
10. The plaintiff is solely relying on the Affidavit/Declaration
dated 17.09.1979 alleged to have been executed by father of the
plaintiff in favour of his five sons including the plaintiff
declaring the above said properties in favour of his five sons
equally with the rights of cultivation, enjoyment and conveyance
and that defendant has no right claim and interest over the said
land. It is the contention of the plaintiff that after execution of
such affidavit and declaration, the plaintiff applied to revenue
authorities for mutation of land and was issued with patta pass
book and title deeds in respect of land admeasuring Ac 0-07
guntas in Sy. No. 38, Ac 3-18 guntas in Sy. No. 39 and Ac 1-20
guntas in Sy. No.43/AA total admeasuring Ac 5-05 guntas and
paid the necessary taxes to the revenue authorities. Now, the
question to be adjudicated is whether the said declaration is
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valid mode of conveying title over an immovable property to
others. It is settled law that only a registered sale deed is the
proper method of conveying title and ownership over an
immovable property from one person to other. It is surprising to
note that the plaintiff though produced the said affidavit alleged
to have been executed by the original owner i.e., his father
Darga Mall Reddy, it was not marked for the reason that it is
not a registered document. The trial Court has rightly observed
in the impugned judgment that the affidavit of the father of the
plaintiff shall not convey any right in the suit schedule property
to the plaintiff, therefore the said document i.e., affidavit based
on which the plaintiff claims right on the suit schedule property
is neither admissible nor can be considered for any purpose as
desired by the plaintiff.
11. It is further contention of the plaintiff that the view of trial
Court at para Nos.8 and 9 of the judgment that since the
registered documents Exs.A1 to A3 carry the presumption of
genuine transaction and transfer of title and since the registered
sale deeds will prevail over the revenue records, the defendants
have proved by title over the property. It is further contention of
the plaintiff that mere marking of a registered sale deed does
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not amount to proof of the contents of the document and the
admissibility of the document is different from proof of the
contents of the document. It is the specific contention of the
plaintiff that the burden is on the defendants to prove that there
was no distribution of property between the plaintiff and his
brothers by their father and that their father continues to own
the property. In support of the above contention, the learned
counsel for the plaintiff relied upon a decision of PRS Hospital
and others v. P. Anil Kumar 1, wherein the High Court of
Kerala at Ernakulam observed as under:
"26. There are four stages before a Court of law can rely
upon a document. They are (i) marking of a document, (ii)
admissibility of a document, (iii) proof of contents of the document,
and (iv) evaluation of the document. Reliance upon a document
can be made by the court only if all the above four stages are
complied with or satisfied. By the mere marking of a document, it
does not become admissible in evidence. Further, the marking of a
document and being admissible in evidence, will still not render
the contents of a document as 'proved'. When a document,
admissible in evidence, is marked, still to be relied upon by the
courts, its contents will have to be proved. For the contents of a
document to have a probative value, the person who wrote the
contents or is aware of the contents and its veracity must be
invited to give evidence about it. It is thereafter the last stage i.e.
evaluation takes place. Evaluation of the document is a judicial
exercise. Unless all these stages are done, a court of law cannot
rely upon any document produced or marked before it."
12. In the decision relied upon by the plaintiff, it is a suit for
damages on the alleged medical negligence. But in the case on
hand, it is the plaintiff, who has approached this court seeking
1 MANU/KE/3644/2020
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declaration of title over the suit schedule property and for other
consequential reliefs and thus, the facts and principle laid down
in the above said decision cannot be made applicable to the
facts of the case on hand.
13. The learned counsel for the plaintiff further contended
that a certified copy of a registered sale deed is not a public
document under Section 74 of the Evidence Act so that the
Court can readily accept the same and rely upon it and thereby
relied upon a decision in Deccan Paper Mills C. Limited v.
Regency Mahavir Properties and others 2, wherein the
Honourable Supreme Court observed that a registered sale deed
is not a public document but it is only a private document. In
order to refute the above said contentions, the defendant No.3
relied upon an authority of the Honourable Supreme Court in
Jagdish Prasad Patel (dead) through LRs and another v.
Shivnath and others 3, wherein it was observed as under:
"41. In the suit for declaration for title and possession, the
plaintiffs-respondents could succeed only on the strength of their
own title and not on the weakness of the case of the defendants-
appellants. The burden is on the plaintiffs-respondents to
establish their title to the suit properties to show that they are
entitled for a decree for declaration. The plaintiffs-respondents
have neither produced the title document i.e. patta-lease which
the plaintiffs-respondents are relying upon nor proved their right
by adducing any other evidence. As noted above, the revenue
2 AIR 2020 Supreme court 4047
3 2019 Laws Suit (SC) 1038
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entries relied on by them are also held to be not genuine. In any
event, revenue entries for few Khataunis are not proof of title; but
are mere statements for revenue purpose. They cannot confer any
right or title on the party relying on them for proving their title.
Observing that in a suit for declaration of title, the plaintiffs-
respondents are to succeed only on the strength of their own title
irrespective of whether the defendants-appellants have proved
their case or not, in Union of India and others v. Vasavi Co-
operative Housing Society Limited and others (2014) 2 SCC 269,
it was held as under:-
"15. It is trite law that, in a suit for
declaration of title, the burden always lies on the
plaintiff to make out and establish a clear case for
granting such a declaration and the weakness, if
any, of the case set up by the defendants would not
be a ground to grant relief to the plaintiff."
14. In view of the principle laid down in the above said
decision, it is quite clear that the burden is upon the plaintiff to
establish that he is the owner and possessor of the suit
schedule property as on the date of filing of the suit and that his
possession over the suit schedule property was encroached
upon by the defendants. The plaintiff has to stand or fall upon
his own legs but cannot depend upon the weakness of the
defendants, more particularly, in a declaratory suit. Though the
trial Court has made observations on the genuineness of the
documents under Exs.A1 to A3, since it is the plaintiff, who has
approached this Court seeking declaratory relief, the plaintiff
has to establish his own case rather than depending upon the
weakness of the defendants. Now, whether the plaintiff could
establish his title and ownership over the suit schedule property
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by adducing cogent and convincing evidence is to be
ascertained.
15. Exs. A4 and A5 are the patta pass book and title deeds
and Exs. A6 to A11 are the pahanies showing the names of
plaintiff and his brothers with regard to land in Sy. No.43/A.
As per the plaint averments, Darga Malla Reddy was the
absolute owner and possessor of land in Sy. No. 38, 39, 43, 44,
153 and 154 situated at Peerzadiguda village, Ghatkesar
Mandal, Ranga Reddy District. But there is no mention as to
what is the extent of land that was possessed by Darga Malla
Reddy in the above said survey numbers. Except mentioning
that father of the plaintiff was the owner and possessor of lands
in specific survey numbers, the plaintiff has not mentioned
what is the extent of land possessed by his father in each
survey number. Moreover, it is settled law that mere entry in
the revenue records will not confer any title or ownership over
an immovable property. In P. Kishore Kumar v. Vittal K.
Patkar 4 the Honourable Apex Court observed as under:
"11. It is trite law that revenue records are not documents of
title.
12. This Court in Sawarni vs. Inder Kaur and Ors.2 held that
mutation in revenue records neither creates nor extinguishes title, nor
4 2023 Live Law (SC) 999
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does it have any presumptive value on title. All it does is entitle the
person in whose favour mutation is done to pay the land revenue in
question.
13. This was further affirmed in Balwant Singh & Ors vs.
Daulat Singh (Dead) by LRs and Ors.3 wherein this Court held that
mere mutation of records would not divest the owners of a land of their
right, title and interest in the land.
14. In Jitendra Singh vs. State of Madhya Pradesh and Ors. 4 ,
this Court after considering a catena of judgments, reiterated the
principle of law as follows: "6. ***mutation entry does not confer any
right, title or interest in favour of the person and the mutation entry in
the revenue record is only for the fiscal purpose."
16. In view of principle laid down in the above said citation, it
is evidently clear that entries in revenue records do not confer
any valid title over the immovable property. Even for the sake of
arguments, if the pahanies are taken into consideration as
documents of title, those documents pertain to lands in
Sy.No.43/A but not the lands in Sy.Nos.39 and 43, which are
subject matter of the appeal. Moreover, as rightly observed by
the trial Court in the impugned judgment that though the said
documents i.e., Exs. A4 and A5 appear to be in the name of
plaintiff, it is not clear as to when they were issued. Even
otherwise, the registered documents Exs.A1 to A3, which are
registered sale deeds for valid consideration carry the
presumption of genuine transaction and transfer of title. It was
further observed by the trial Court in the impugned judgment
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that the registered sale deeds also prevail over the revenue
records like patta pass book, title deeds and pahanies which are
not often updated for various reasons.
17. The plaintiff alleged to have converted land admeasuring
Ac. 1-10 guntas in Sy. Nos. 39 and 43 into house sites and
obtained layout permission and sold out some of the plots to the
prospective purchasers by retaining some of the plots including
plot No. 49 admeasuring 190 square yards in Sy. No. 39 and 43
which is the suit schedule property. But the plaintiff failed to
produce any proceedings through which he alleged to have
converted alleged agricultural lands into house sites.
18. As per the evidence of DW1, the father of plaintiff during
his life time sold out the suit schedule property to defendant No.
1 by way of registered sale deed bearing No.4354/1983 dated
24.11.1983 under Ex. A1. Since the suit schedule property was
owned by father of the plaintiff as on the date of Ex.A1 and
there was no legal transfer of property prior to Ex. A1, the sale
affected by Ex. A1 in favour of defendant No.1 is legal and valid.
It is to be seen that defendant No.3 is relying upon Exs.A1 to
A3, which are nothing but registered sale deeds and they are
legally admissible documents to prove that the suit schedule
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property was legally transferred by the father of the plaintiff to
the defendant No.1 and thereafter to defendant No.2, who in
turn sold the same to defendant No.3 i.e., DW1. In Ex.A1 the
possession over the suit property was also alleged to have been
delivered to the defendant No.1. It is not the case of the
plaintiff that he is cultivating the suit schedule property even as
on the date of filing of the suit. It is an admitted fact that the
suit schedule property, which was earlier an agricultural land,
was converted into house sites. Admittedly, it is the defendant
No.3, who is in possession of the suit schedule property as on
the date of filing of the suit. If at all the plaintiff has any right
over the suit schedule property, certainly he would have been in
possession of the suit schedule property as on the date of filing
of the suit.
19. As per the evidence of DW1/defendant No.3 coupled with
documentary evidence in the form of Exs. B1 to B9, which are
the certified copies of registered sale deeds, it is evident that the
father of the plaintiff has alienated some other pieces of land in
same survey number by way of plots to third party purchasers.
It is the specific contention of the plaintiff that as per the alleged
notarized affidavit/declaration, the father of the plaintiff has no
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right, claim or interest over the said properties. If at all the
father of the plaintiff has no right, claim or interest over the said
properties after execution of such affidavit, the probability of
existence of Ex.A1 or Exs.B1 to B9 does not arise. It is
pertinent to note that Exs.B1 to B9 are pertaining to the year
1983, in which year Ex.A1 was also executed by father of the
plaintiff in favour of defendant No.1, as such the proximity of
executing Ex.A1 by father of the plaintiff in favour of defendant
No.1 is substantial. It is not the case of the plaintiff that he
along with his other brothers has challenged the sale deeds
under Exs.B1 to B9. It is to be observed that plaintiff herein is
one of the attestors to Ex.B9. In the cross examination, the
plaintiff (PW1) deposed that defendant No.3 filed all his title
deeds in the suit but those are bogus documents. However,
PW1 admitted that he did not state before the Junior Civil
Judge's Court in O.S.No.1231 of 2008 that the documents filed
by the defendant No.3, who is the plaintiff therein, are bogus
documents. If at all the documents filed by the defendant No.3
herein in O.S.No.1231 of 2008 were bogus, then certainly, the
plaintiff herein would have brought to the notice of the learned
Junior Civil Judge's Court while filing written statement. But
there is no such instance.
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20. The evidence produced by the plaintiff under Exs.A1 to A3
clearly discloses that defendant No.3 is the legal owner and
possessor of suit schedule property since the date of his
purchase under Ex. A3 in the year 1994 and even prior to that
suit schedule Property was in possession of previous owners as
can be seen from Exs. A1 and A2 right from the year 1983.
Admittedly, defendant No. 3 has earlier filed a suit for
permanent injunction against the plaintiff vide O.S. No.
1231/2008 on the file of Principal Junior Civil Judge, Ranga
Reddy District and the said suit was decreed in favour of
defendant No.3. Though the plaintiff alleged to have filed set
aside petition and contended that the said suit is pending, it is
nothing to do with the present case as the said case is filed by
defendant No.3 for mere injunction and whereas the present
suit is a comprehensive suit for declaration of title and delivery
of possession apart from seeking cancellation of the Exs.A1 to
A3 and whereas in the present suit the plaintiff failed to
establish his own case that he is the owner of the suit schedule
property. The plaintiff failed to enumerate the reasons as to how
Exs.A1 to A3 and Exs.B1 to B9 came into existence when his
father has no right, claim or interest over the properties owned
by his father after execution of the alleged affidavit/declaration.
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Even on perusal of unmarked declaration/affidavit alleged to
have been executed by father of the plaintiff, there is no specific
date on which it was alleged to have been executed. The said
declaration also does not disclose the extents of land possessed
by the father of the plaintiff in each survey number. There is no
whisper at all in the said affidavit/declaration about the total
extent or any extent of land possessed by the father of the
plaintiff. Except contending that Exs.A1 to A3 were created by
the defendants, the plaintiff failed to bring out the facts behind
execution of all these registered sale deeds by his father under
Ex.A1 and Exs.B1 to B9.
21. The plaintiff as PW1 in his cross examination admitted
that he cannot say how many plots were sold by him due to his
illiteracy. The cross examination of DW1 by the learned counsel
for the plaintiff is mostly on the ground that the defendant No.3
has not filed any document to show that he has purchased the
land vide registered document bearing No.2619 of 1994 and
that he has not filed original or certified copies of the documents
bearing Nos.4354 of 1983 and 5193 of 1991. It is pertinent to
note that though the above said documents were not filed by
defendant No.3, the said documents were filed by the plaintiff
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himself and marked as Exs.A1 to A3. Further, the learned
counsel for the plaintiff has cross examined DW1 on the aspect
of the efforts of plaintiff in producing original document bearing
No.4354 of 1983 which was alleged to have been executed by
his father in favour of Bandi Bikshapathi for sending the same
to expert opinion for comparison of thumb impression of Darga
Malla Reddy. But as stated supra, it is a suit for declaration of
title, as such, the plaintiff has to establish his ownership and
title over the suit schedule property rather than pointing out
lacunae in the case of the defendants. Thus, merely because
the plaintiff is making attempts to prove that documents
executed by the father of the plaintiff in favour of defendants are
bogus and created, it will not be of any help to the plaintiff to
seek the relief of declaration of title and ownership over the suit
schedule property. The plaintiff shall establish that he is the
owner of the suit schedule property by virtue of valid title deed.
22. It is pertinent to note that the plaintiff has filed petition
vide I.A.No.4 of 2022 in this appeal under Section 151 of the
Code of Civil Procedure permitting the plaintiff to file additional
material paper i.e., registered sale deed vide document No.2252
of 1983 dated 17.03.1983 executed by the father of the plaintiff
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for better adjudication of the case. It is pertinent to note that
the petition ought to have been filed under Order XLI Rule 27 of
the Code of Civil Procedure. However, it is trite law that wrong
mentioning of the section does not invalidate any action if the
action can otherwise be sustained in law. Order XLI Rule 27 of
the Code of Civil Procedure prescribes that the parties to an
appeal cannot be permitted to lead additional evidence whether
in oral or documentary unless the party appealing is able to
prove that despite his best efforts, he was unable to produce the
evidence when the trial Court issued the decree being appealed.
In State of Karnataka v. KC Subramanya 5 the Honourable
Supreme Court observed as under:
"6. On perusal of this provision, it is unambiguously clear
that the party can seek liberty to produce additional evidence at
the appellate stage, but the same can be permitted only if the
evidence sought to be produced could not be produced at the
stage of trial in spite of exercise of due diligence and that the
evidence could not be produced as it was not within his
knowledge and hence was fit to be produced by the appellant
before the appellate forum.
7. It is thus clear that there are conditions precedent
before allowing a party to adduce additional evidence at the stage
of appeal, which specifically incorporates conditions to the effect
that the party in spite of due diligence could not produce the
evidence and the same cannot be allowed to be done at his
leisure or sweet will."
23. The Honourable Supreme Court in Union of India v.
Ibrahim Uddin and another 6 observed as under:
(2014) 13 SCC 468
(2012) 8 SCC 148
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"36. 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. The appellate court may
permit additional evidence only and only if the conditions laid
down in this Rule are found to exist. The parties are not entitled,
as of right, to the admission of such evidence. Thus, the provision
does not apply, when on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment. The matter
is entirely within the discretion of the court and is to be used
sparingly. Such discretion is only a judicial discretion
circumscribed by the limitation specified in the Rule itself. (Vide K.
Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526],
Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965
SC 1008], Soonda Ram v. Rameshwarlal [(1975) 3 SCC 698 : AIR
1975 SC 479] and Syed Abdul Khader v. Rami Reddy [(1979) 2
SCC 601 : AIR 1979 SC 553])
48. To sum up on the issue, it may be held that an
application for taking additional evidence on record at a belated
stage cannot be filed as a matter of right. The court can consider
such an application with circumspection, provided it is covered
under either of the prerequisite conditions incorporated in the
statutory provisions itself. The discretion is to be exercised by the
court judicially taking into consideration the relevance of the
document in respect of the issues involved in the case and the
circumstances under which such an evidence could not be led in
the court below and as to whether the applicant had prosecuted
his case before the court below diligently and as to whether such
evidence is required to pronounce the judgment by the appellate
court. In case the court comes to the conclusion that the
application filed comes within the four corners of the statutory
provisions itself, the evidence may be taken on record, however,
the court must record reasons as on what basis such an
application has been allowed. However, the application should
not be moved at a belated stage.
24. In view of the principle laid down in the above said
decisions, as seen from the affidavit filed in support of the
petition in I.A.No.4 of 2022, there is no whisper at all as to what
are the reasons that compelled the plaintiff to file the said
document before this appellate Court without filing the same
before the trial Court. It is not the case of the plaintiff that
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despite his best efforts, he could not produce the said document
before the trial Court. Thus, this Court is not inclined to
entertain the said application at this belated stage more
particularly when the plaintiff failed to explain cogent and
convincing reasons as to why he could not produce the said
document before the trial Court. The only reason assigned by
the plaintiff for permitting him to file the said document is in
the cross examination of DW1 the original of registered sale
deed executed by Darga Malla Reddy was requested in order to
send the same to FSL for tallying of signatures of his late father
in the said registered sale deed. The plaintiff failed to explain as
to why he has not filed the said document before the trial Court.
Since the plaintiff failed to comply with the requisites required
to adduce additional evidence in an appeal, the petition in
I.A.No.4 of 2022 is liable to be dismissed.
25. It is to be seen that the defendant No.3 has filed
O.S.No.1231 of 2008 against the plaintiff stating that the
plaintiff and his son and their henchmen came to the suit
property on 19.10.2008 and 22.10.2008 and tried to encroach
the suit schedule property. In the plaint averments, the plaintiff
averred that he received summons in O.S.No.1231 of 2008 and
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filed his written statement denying entire contentions of the
plaint. On one hand, the plaintiff is contending that the suit in
O.S.No.1231 of 2008 was decreed exparte and on the other
hand, the plaintiff is contending that he has filed written
statement in O.S.No.1231 of 2008 after receipt of summons. In
the cross examination the plaintiff, who was examined as PW1,
admitted that he has filed an appeal against the said decree and
judgment. Thus, there is an ambiguity as to whether the
plaintiff has preferred an appeal or filed an exparte petition or
whether he filed his written statement or not in O.S.No.1231 of
2008. If at all the plaintiff, who is defendant in O.S.No.1231 of
2008 has filed written statement, there would not be any
occasion for the trial Court to pass an exparte decree. It is not
the case of the plaintiff that he has not received summons in
O.S.No.1231 of 2008. Thus, it is evident from the pleadings in
O.S.No.1231 of 2008 that on 19.10.2008 and 22.10.2008 or
from the date of receipt of summons itself the probability of
plaintiff having knowledge about the execution of Exs.A1 to A3
cannot be denied in toto.
26. Though the plaintiff has mentioned the dates from
28.11.1983 to 28.08.2013 in the cause of action paragraph, he
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has cleverly not mentioned the date on which he came to know
about existence of Exs.A1 to A3. Though the defendant No.3
filed a complaint with SHO, Uppal Police Station against the
plaintiff and his son for the alleged offence on 22.10.2008, in
the cross examination of DW1, it was elicited that the said
criminal case ended in acquittal. In this regard, an inference
can be drawn that the dispute between the parties over the suit
schedule property is pertaining to the year 2008. The plaintiff,
who is the defendant in O.S.No.1231 of 2008 alleged to have
filed written statement in the said suit on 18.02.2009. In such
circumstances, the plaintiff ought to have filed the suit
immediately i.e., in the year 2008 itself rather than filing the
suit after five years after the alleged cause of action shown in
O.S.No.1231 of 2008 i.e., in the year 2013. At least the plaintiff
ought to have filed the present suit immediately after receipt of
summons in O.S.No.1231 of 2008 or after filing of the written
statement in the year 2009. The plaintiff could have filed
counter claim in O.S.No.1231 of 2008 rather than filing a
separate suit after lapse of limitation period. The limitation to
file a suit for cancellation of documents is three years from the
date of documents or from the date of knowledge of such
documents. In such circumstances, the suit of the plaintiff is
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certainly barred by limitation and on this ground also the suit of
the plaintiff is liable to be dismissed.
27. It is the specific contention of the plaintiff that the
defendant Nos.1 to 3 in collusion with each other, created the
story that the father of the plaintiff has alienated the suit
schedule property to defendant No.1. If at all there is any
amount of collusion among defendant Nos.1 to 3, defendant
No.1 would not have waited for eight long years i.e., from 1983
to 1991 to alienate the suit schedule property to defendant
No.2. Likewise, the defendant No.2 would not have waited for
three years i.e., from the year 1991 to 1994 to alienate the suit
schedule property in favour of defendant No.3 if at all defendant
No.3 has malafide intention to gain illegally.
28. From the above discussion, it is clear that the plaintiff
failed to establish his case before the trial Court as well as
before this appellate Court. Since the present suit is for
declaration of title and other consequential relief, it is
immaterial as to whether the defendants have succeeded in
establishing their case and it is the plaintiff, who has to
establish his own case by adducing proper evidence rather than
depending upon the weakness of the defendants. Except relying
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upon the entries in the revenue records, the plaintiff has not
adduced any documentary evidence to establish that he is the
absolute owner of the suit schedule property having been
acquired by him from his father through valid conveyance deed.
29. In view of the above facts and circumstances, this Court
is of the considered view that the trial Court has elaborately
considered all the aspects meticulously and arrived to an
appropriate conclusion and thereby there are no merits in the
appeal to set aside the impugned Judgment. Thus, the appeal is
devoid of merits and liable to be dismissed.
30. In the result, this appeal as well as I.A.No.4 of 2024 are
dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 19.07.2024
Note: LR copy to be marked.
B/o. AS
