S.S. Shinde, J.@mdashHeard learned counsel for the Appellants.
2. Learned counsel the Appellants invited my attention to the grounds taken in the appeal memo, annexures thereto and other documents placed on record and submitted that, as per the provisions of Article 64 of the Limitation Act, suit for possession ought to have been filed within a period of 12 years. The Appellants are in possession of the suit property from the year 1961. Therefore, suit should have been filed within 12 years from the year 1961. Learned counsel for the Appellants submits that necessary documents i.e. Sanad issued by the State Government and all other documents were not in possession of the Appellants at the time hearing of the suit and also at the time of hearing of the appeal before the lower Appellate Court, therefore, the Appellants could not produce those documents on record showing their ownership and the possession from the year 1961 till date. It is submitted that the Appellants are continuously paying the Gram Panchayat Tax and other taxes. It is further submitted that the Advocate, who was engaged by the Appellants could not remain present, he did not communicate the date of hearing. Therefore, the Appellants were not able to lead either oral or documentary evidence and therefore, this Court may allow the second appeal and remand the matter back to the trial Court for fresh trial. It is further submitted that the husband of Appellant No. 1 died in the year 1993. Therefore, the Appellants could not procure the necessary documents to be produced on record. However, now the original documents are placed on record alongwith the application. Therefore, those documents may be taken on record and the matter may be remanded back to the trial Court for fresh trial. It is submitted that the trial Court has not framed any issue about the limitation. It is further submitted that the Appellants have filed Civil Application No. 4840 of 2010 in this Second Appeal under Order XLI, Rule 27 of the CPC with prayer to take the additional documents on record and further remand the matter back to the trial Court for fresh trial. Learned counsel for the Appellants invited my attention to the contents of the said civil application and in particular, paragraph No. 10 of the said application and submitted that, Applicant No. 1 due to the death of her husband, she was not able to collect all the documents and after the decision of the lower Appellate Court, she got all these papers more particularly the original Sanad and therefore, there is no any intentional delay or latches on the part of the Applicants from producing these documents. It is further submitted that, considering the facts of the case and the question regarding the rights of the parties, it is necessary to allow the application for production of documents on record and the same may be considered as an evidence because all these documents are issued by the Government Officer which shows that, the suit property was allotted to the husband of Applicant No. 1 and the father of Applicant No. 3 by the Government by way of Sanad. Therefore, according to learned counsel for the Appellants, this second appeal deserves consideration. At the costs of repetition, learned counsel for the Appellants submitted that the matter may be remanded back to the trial Court for fresh trial.
3. On the other hand, learned counsel for the Respondents invited my attention to the pleadings in the plaint and submitted that the Plaintiffs have explained in the plaint that the cause of action to file such suit arose first time on 15th January, 2002 when the Appellants herein refused to vacate the suit premises. It is submitted that Regular Civil Suit No. 181 of 2000 was filed by the Appellants for injunction against the Respondents. However, such relief was not granted and subsequently, the said suit also came to be dismissed for want of prosecution. It is submitted that the point of limitation was not raised in the written statement and therefore, in absence of such point taken in the written statement, there was no question of framing the said point for consideration by the trial Court. Learned counsel further submits that, the father of the Respondents was the owner of the suit property. He invited my attention to the document of 1961 at Exhibit�18 before the trial Court and submitted that in the ownership column, name of father of the Appellants is mentioned and the Ramchandra Kotecha�husband of Appellant No. 1 was shown in possession of the said. Therefore, according to learned counsel for the Respondents, the suit property is inherited by the Respondents from their father. The Appellants are in permissive possession of the suit property when they refused to vacate the suit premises on 15th January, 2002, cause of action arose for filing of suit for recovery of possession.
It is further submitted that the documents i.e. Sanad and other documents were also placed on record before the trial Court. However, the Appellants herein did not lead any evidence either oral or documentary. Therefore, it is not now open for them to contend that the matter may be remanded back for fresh trial. It is submitted that in the year 2003, the application was filed by the Respondents for correction in Sanad and all other documents issued by the office of the District Land Record and also Taluka Inspector of Land Record and accordingly, necessary corrections have been made. The name of husband of the Appellant No. 1 is removed from those documents. The Appeal filed by the Appellants before the Deputy Director of Land Record is dismissed. It is submitted that, therefore, those documents are of no use to the Appellants since the name of Ramchandra Kotecha is already removed from the Sanad and all other documents issued by the Land Record Department. It is further submitted that the Respondents first time came to know about the intention of the Appellants that they do not want to vacate the suit premises in the year 2001 when they filed a suit for injunction and thereafter, all necessary steps have been taken to file a suit and also an application before the Revenue Authority for correction in the Revenue Record. It is submitted that since the order of the Superintendent of Land Record removing the name of the husband of Applicant No. 1 has attained finality, the said documents cannot be relied upon by the Applicants/Appellants in support of their case. Learned counsel also invited my attention to paragraph No. 22 from the judgment of the trial Court, where the trial Court has referred to number of documents, which were placed on record by the original Plaintiffs. Therefore, learned counsel for the Respondents relying upon the findings recorded by the Courts below, reply filed by him to the Civil Application for taking the additional documents on record and other documents from the original record, would submit that this appeal is devoid of any merits and the same may be dismissed.
4. I have given due consideration to the rival submissions. Since the appeal is being heard, it is necessary to first decide the application filed by the Applicants for taking the additional documents on record. The Applicants/Appellants have filed Civil Application No. 4840 of 2010 for taking as many as eight documents. This application is filed under Order XLI Rule 27 of the Code of Civil Procedure. Therefore, it would be appropriate to reproduce here in below the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, which reads thus:
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 documents to be pronounced, 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.
5. Learned counsel for the Appellants placed heavy reliance on Rule 27 (aa) of Order XLI of the CPC and submitted that at the time of hearing of the suit or appeal before the lower Appellate Court, the Applicants could not produce the said documents on record since the husband of Applicant No. 1 died. It is stated in paragraph No. 10 of the said application that due to the death of her husband, she was not able to collect all these documents and after decision of the Appellate Court, she got all these papers more specifically the original Sanad and therefore, there is no any intentional delay or latches on the part of the Applicants in producing these documents. When the counsel for the Applicants/Appellants was confronted with the query that, when the husband of Applicant No. 1 died, he replied that the husband of Applicant No. 1 died in the year 1993. The suit was filed by the Respondents herein in the year 2002. The suit was heard in the year 2003 to 2006. Except paragraph No. 10 in the said application that due to the death of husband of Applicant No. 1, she was not able to collect all the documents, there are no any averments in the application showing due diligence and efforts taken by Applicant No. 1 to procure those documents. The reasons stated in the application that due to death of the husband of Applicant No. 1, she was not able to collect the documents, cannot be accepted. The husband of Applicant No. 1 died in the year 1993 and after lapse of nine years, suit was filed. Therefore, nothing prevented Applicant No. 1 from applying for said documents. Even from reading the said application, there is no any attempt on the part of the Applicants even to apply those documents at the time of pendency of the suit. All the documents on which the Appellants to place reliance are old documents those are not the documents, which have come in existence recently. Therefore, it was possible for the Applicants�Appellants to procure those documents atleast to apply for the said documents at the earliest opportunity. Therefore, at the costs of repetition, it is to be observed that no any reasons are given in the application or due diligence is disclosed in the application for not applying for said documents or for procuring the said documents. Therefore, at this belated stage when the second appeal is filed, the application is filed for production of the documents. It is true that if the party comes with such prayer, the Court should consider such prayer liberally. However, the mandate of Order XLI, Rule 27 of the CPC and in particular, Rule 27 (aa), which is relied upon by the Appellants, does not permit the Court to allow such application unless due diligence is shown by the party. Therefore, in the facts of this case and from the averments made in the application, the mandate of Order XLI, Rule 27 of the CPC has not been fulfilled by the Applicants. In this respect, reliance is placed by the learned counsel for the Applicants upon the reported judgment of the Apex Court in the case of Shyam Gopal Bindal & Ors. Vs. Land Acquisition Officer & Anr, [2010 (2) ALL MR 465], is misplaced in the facts of this case. As it is evident from perusal of paragraph No. 8 of the said judgment that, in that case, the Appellants i.e. original Plaintiff having died during the pendency of the civil suit, the documents could not be brought on record as they were not aware of the orders. The documents were in the nature of judicial orders. A prayer was duly made before the lower Appellate Court for taking additional documents on record. Therefore, in the fact of that case, the Apex Court allowed the prayer of the Applicants therein and remanded the matter back to the trial Court. However, as stated earlier, in the present case, the husband of Applicant No. 1 died in the year 1993. The suit came to filed in the year 2002 and effective recording of evidence was in the year 2005-06. Therefore, by any stretch of imagination, it cannot be said that any due diligence is shown by the Applicant No. 1 for procuring those documents. First time in the second appeal, an attempt is made to produce those documents on record.
It is brought to the notice of this Court and as it is reflected in paragraph No. 26 from the judgment of the trial Court, that in PR Card extract Exhibit�76, vide entry No. 49 dated 11th November, 2003 by order of the Superintendent of Land Record, Aurangabad dated 4th November, 2003, the name of the Plaintiff was mutated by deleting the name of deceased Ramchandra Kotecha for CTS No. 160. It is further observed by the trial Court in the said paragraph that, CTS No. 160 is the corresponding number in CTS for GPH No. 36/1 and 36/2, which are the suit houses. The trial Court observed that, in view of that order dated 4th November, 2003 passed by the Superintendent of Land Record, Aurangabad, the Plaintiff became owner of GPH No. 36/1 and 36/2.
During the course of hearing, learned counsel appearing for the Applicants submitted that the Applicants have filed an appeal, challenging the order of the Superintendent of Land Record, Aurangabad dated 4th November, 2003. However, the said appeal is dismissed. Therefore, the order dated 4th November, 2003 passed by the Superintendent of Land Record, Aurangabad correcting the entries in PR Card and deleting the name of deceased Ramchandra Kotecha and entering the name of the Plaintiff has attained finality. Therefore, even the documents which the Applicants wish to place reliance, which are in the nature of PR Card, Sanad etc., the name of the Plaintiff is entered by the order of the Superintendent of Land Record, Aurangabad.
6. Therefore, in the aforesaid background, when there is no compliance with the provisions of Order XLI, Rule 27 (aa) of the CPC by the Applicants herein, the application for production of additional documents cannot be considered. Hence the same stands rejected.
7. The contentions of the Appellants that no proper opportunity was given to the Appellants for leading evidence and their Advocate was not present and as a result, the Applicants were not aware about the date of recording of evidence, since their Advocate did not inform them about the date fixed by the Court and therefore, one more opportunity must be given to the Applicants is concerned, perusal of paragraph No. 12 of the judgment of trial Court, make it abundantly clear that the Defendants were given several opportunities to lead evidence on their part, but they failed to adduce any evidence therefore, the rights of the Applicants to lead evidence was forfeited. Thereafter, vide Exhibit�60, the Defendants again moved an application for adducing evidence, and the trial Court set aside the order below Exhibit�1 subject to cost of Rs. 300/- and the Defendants were given fresh opportunity to lead evidence. However, even thereafter, the Defendants failed to adduce any kind of evidence in support of their claim. Therefore, again their right to lead evidence was forfeited vide order dated 29th August, 2006. The Applicants herein who are the original Defendants did not lead oral or documentary evidence. They did file written statement. Therefore, the contention of learned counsel for the Applicants that due to the non-communication of the date of recording of evidence by their Advocate and and absence of the Advocate on the date of recording of evidence, the Applicants should not suffer, is required to be rejected in the light of the observations of the trial Court in paragraph No. 12 of its judgment.
8. Admittedly, the point of limitation was not raised in the written statement. The Applicants who are the original Defendants now contending that the point of limitation was not framed by the trial Court. However, in absence of any averments to that effect by the Defendants, there was no occasion for the trial Court to frame such point. In fact, the trial Court has considered and accepted the contention of the Plaintiff that cause of action arose first time in the year 2002 when the Defendants refused to vacate the suit premises. Therefore, I do not find any substance in the arguments of the counsel for the Applicants that the suit should have been filed within 12 years from 1961. The possession of the Defendants was permissive possession. The oldest documents of 1961 at Exhibit�18, which is believed by the trial Court and the lower Appellate Court unequivocally indicates that the father of the Respondents is owner of the suit property and the name of Ramchandra Kotecha is shown in the possession column. Therefore, the trial Court after considering various documents as narrated in paragraph No. 22 of the trial Court�s judgment, has allowed the suit filed by the Plaintiff. For ready reference, paragraph No. 22 from the judgment of the trial Court is reproducing hereinbelow, which reads thus:
22] The documentary evidence on record consisting of Namuna No. 8 bearing Exh. 9 for the year 2001-2002 Exh. 18, for the year 1961-1962 Exh. 19, for the year 1968-1969 Exh. 20, for the year 1977-1978 Exh. 21, for the year 1980-1981 Exh. 22. For the year 1984-85 exh. 23, for the year 1987-1988 Exh. 24, for the year 1992-1993 Exh. 25, for the year 1995-1996 Exh. 26, for the year 1997-1998 Exh. 27, for the year 2001-2002 Exh. 28.
9. Therefore, from the perusal of the said paragraph, it would make abundantly clear that number of documents have been appreciated and relying upon the said documents, suit filed by the Plaintiff is allowed. The lower Appellate Court upon appreciation of the rival contentions has confirmed the findings of the trial Court. Therefore, viewed from any angle, no case is made out to interfere in the concurrent findings recorded by the Courts below. The Applicants herein, who are the original Defendants in spite of giving sufficient opportunities, did not lead either oral or documentary evidence before the trial Court. Belated attempt of the Applicants to produce the documents on record at the stage of second appeal is without showing due diligence or any efforts to procure such documents. The only reason given in the application is the death of husband of Applicant No. 1, which took place in the year 1993. Therefore, for the reasons aforesaid, in my considered opinion, viewed from any angle, second appeal deserves no consideration. In addition to the merits of the second appeal, it is brought on record that the Superintendent of Land Record, Aurangabad has subsequently corrected the PR Card and the Plaintiff�s name is entered, and the name of Ramchandra, the name of husband of Applicant No. 1 is deleted from PR Card. Therefore, even if such documents are on record, that would not help the Applicants.
10. So far, payment of Gram Panchayat Taxes etc. is concerned, the possession of the Applicants was permissive possession and since they were residing there, the Applicants might have paid the Gram Panchayat Taxes. It has also come on record that the deceased Ramchandra was elected as a Member of Gram Panchayat, Fardapur in the year 1972 and during that time, the Gram Panchayat record has been substantially changed. Therefore, for the reasons aforesaid, the second appeal sands dismissed.
11. In view of the dismissal of the second appeal, pending Civil Application Nos. 1888 and 4840 of 2010 and Civil Application No. 15333 of 2011 do not survive and the same stands rejected.
