Arun Kumar Mitra, J.@mdashThis second appeal arises out of a suit for declaration and for injunction. The appellant in this appeal challenged the Judgment and decree passed by the learned Additional District Judge, First Court at Howrah in Title Appeal No. 185 of 1986 on November 22, 1988 affirming the Judgment and decree dated June 28, 1986 passed by the learned Munsif, Amta, Howrah in Title Suit No.8 of 1984. The case made out by the appellant/plaintiff in the plaint in brief is as follows:
The properties measuring 1 acre 32 decimals has been described in Schedule-''Ka'' to the plaint. The said Schedule- ''Ka'' property originally belonged to one Hossain Baksh. A registered deed of settlement dated 22.05.1970 was executed by Hossain Baksh in respect of the disputed properties along with other properties in favour of his wife Mati Bibi. Possession was delivered in her favour. She cultivated some properties personally and the rest were given under Barga cultivation. She sold suit properties to the plaintiff through seven separate registered deeds for a consideration of Rs. 14,000/- on 20.08.1974. The plaintiff inducted bargadars in respect of some plots while the rest were under his personal cultivation. On the date of his purchase he sold one bigha to Lakshman Chandra Mondal for a consideration of Rs. 1,500/-; Lakshman reconveyed the said one bigha as per oral agreement in favour of the plaintiff by a registered Kobala dated 23.06.1981. He has also been paying rent in respect of the suit properties since the date of his purchase. It is the case of the plaintiff that the defendants have no right, title and interest in the properties in suit. Panchanan Bera. his bargadar delivered owner share to him regularly while Rustam, another bargadar has stopped delivery of owner share to him for four to five years. On 27.01.1984 the defendants have threatened the plaintiff possession in the suit properties and accordingly the plaintiff filed the instant suit.
2. The defendants contested the suit by filing written statement. The defendant No. 1 and 2 have putting a denial of all the material allegations of the plaint contended inter alia that Mati Bibi was ill because of her old age she was suffering from various ailments prior to her death and she used to share the same mess with defendant No. 1, who was her husband''s elder brother''s son. She was issueless and as such the defendant realized owner''s share on her behalf from her bargadar and also looked after her properties. The defendant No.l performed all her funeral rites on her death and he inherited 12 annas interest while his sister, defendant No. 2 inherited 4 annas interest in the properties including the proerties in suit left by Mati Bibi. They are also in possession of three bighas through bargadars namely Rustam and Panchanan, who cultivated 1� bigha each. They however, personally cultivated 1 bigha out of the suit property.
3. According to them, all the seven deeds standing in favour of the plaintiffs are collusive, fraudulent and some were not acted upon. Mati Bibi had no necessity and intention to sale the property involved in the suit at the relevant time and she possessed the suit properties till her death. Lutfar had no means to pay Rs. 14,000/- at the relevant time. He had no right, title and interest in the suit properties and he never possessed the same.
4. The defendants have set up a counter claim in respect of the suit properties in paragraph 21 of the written statement filed by them. They made a claim to the effect that defendant No. 1 and 2 have inherited the properties in suit from their aunt to the extent of 12 annas and 4 annas respectively. They have, therefore, prayed for a declaration of their right, title and interest in the disputed properties and also for a permanent injunction against the plaintiff on the basis of counter claim.
5. To the counter claim the plaintiff filed a written statement. The plaintiff stated therein to the extent that the plaintiff has acquired right, title and interest in the disputed properties on the basis of registered sale deed dated 20.08.1974 executed by Mati Bibi and as such the counter claim of the defendants is not maintainable. He has, therefore, prayed for dismissal of the counter claim of the defendants with costs.
6. On the above pleadings the learned Trial Judge framed the following issues:
(1) Is the suit maintaintable in its present form?
(2) Whether seven kobalas (exbts. 2 to 2k) executed and registered on 20.08.1974 in favour of the plaintiff are legal and valid?
(3) Whether all those seven deeds have been acted upon and the plaintiff has acquired right, title and interest in the suit properties on the strength of those kobalas?
(4) Is the plaintiff in possession of the property-in-suit?
(5) Whether the defendant No. 1 and 2 have inherited the suit properties to the extent of 12 annas and 4 annas respectively as legal heirs of Mati Bibi (since deceased)?
(6) Whether the defendants are entitled to get a decree on the basis of counter claim, as set up by them in this suit?
(7) Is the plaintiff entitled to a decree as prayed for?
(8) Is the suit bad for non joinder of necessary parties and misjoinder of parties?
(9) To what other relief, if any. is the plaintiff entitled?
7. The learned Trial Judge on contest dismissed the suit without costs. The learned Trial Judge also dismissed the counter claim of the defendants.
8. The plaintiff, being aggrieved preferred appeal being Title Appeal No. 185 of 1986.
9. The learned Additional District Judge, Howrah dismissed the said appeal. Hence this second appeal. When the appeal came up for hearing under Order XLI, Rule 11 of the CPC the Hon''ble Division Bench passed the following order:
This appeal will be heard on ground Nos. I, II and VIII as taken in the Memorandum of Appeal. Call for records, issue usual notices.
10. Before hearing, this Court is to see as to whether any substantial question of law is involved in this appeal apart from the three grounds which have been accepted by the Hon''ble Division Bench at the time of hearing under Order XLI, Rule 11 of the CPC or not and if there is or are substantial question/questions of law to be decided then those are to be formulated and circulated to the learned Counsel for the parties and I, therefore, formulate the following substantial questions of law for the purpose of advancing their arguments by the respective counsel for the parties.
Substantial Questions of Law:
1) Whether in spite of the specific findings that the respondents did not acquire any right, title and interest from Mati Bibi, the learned Courts below erred in law in dismissing the suit by totally overlooking the fact that it was only the heirs of Mati Bibi who could dispute the validity of said deeds executed by Mati Bibi.
2) Whether the appellants in the instant case having claiming right, title and interest in the suit property by virtue of the sale deeds executed by Mati Bibi the admitted owner, and the learned Courts below having found that the respondents acquired no title in respect of the suit property, the Courts below erred in law in holding that the sale deeds executed by Mati Bibi were invalid and not acted upon by totally overlooking that such plea was not available to the respondents.
3) Whether in arriving at the conclusion that the appellant had no possession in the suit land the learned Courts below erred in law by not at all considering exbt.-6 series, the rent receipt showing payment to the Government of West Bengal after purchase.
4) Whether the Courts below erred in law in shifting the onus or burden of proof upon the plaintiff for proving that no fraud was practiced upon Mati Bibi in the matter of execution and registration of the sale deeds in favour of the plaintiff.
5) Whether the Courts below applied the wrong tastes for arriving at a finding with regard to title and possession of the plaintiff in respect of the suit land.
6) Whether the decisions of the Courts below are perverse and based on no evidence on record and on surmise and conjectures.
11. At the time of taking up the appeal for hearing, the learned Counsel for the appellant/plaintiff drew attention of this Court in respect of his application filed in the second Appeal which is for considering additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure.
12. The learned Counsel for the plaintiff/appellant submitted that the documents annexed to his application under Order XLI, Rule 27 of the CPC were not made available during the trial of the suit or when the appeal was pending before the first appellate Court. Those were made available after the first Appeal being disposed of and the second Appeal was filed. The learned Counsel submitted that these documents are very much vital for the purpose of determination of the right, title and interest of the appellant/plaintiff in respect of the suit property. In paragraph 2 of the said application the appellant/plaintiff has detailed about the exhibits. In paragraph 3 of the said application the appellant/plaintiff has stated that when the second Appeal was pending in this High Court revisional settlement of mouza purput within Police Station - Udaynarayanpur in the District of Howrah was started under the provision of West Bengal Land Reforms Act and in the Revisional Record-of-Rights of the said mouza the possession of the petitioner in respect of the said land has been recorded in Khatian No.443/1 and the names of two Bargadars under the plaintiff/appellant have been shown therein. The plaintiff/appellant has annexed a certified copy of the said Khatian as annexure-''A'' to the said application.
13. The plaintiff/appellant has also annexed the rent receipts showing his payment of rent in respect of the suit land till 1408 B.S.
The plaintiff/appellant has annexed those rent receipts and made the rent receipts as annexure-''B'' collectively.
14. The plaintiff/appellant tendered these documents as additional evidence. The plaintiff/appellant stated in the said application in paragraph 5 that the said documents could not be produced in the trial Court or in the lower appellate Court as they have come to the custody and possession of the petitioner during the pendency of the instant second Appeal.
15. The plaintiff/appellant also submitted that the said annexed documents are public documents within the meaning of the provisions of Section 74 of Evidence Act and no formal proof of the same are required and they are admissible in evidence without any further proof.
16. The suit is for declaration of title in respect of the suit property as also for injunction. In such circumstances admittedly the record of rights and the rent receipts are very much vital documents for the purpose of determination of the suit-in-question. It is also admitted position that these record of rights and the rent receipts are subsequent dated. From the annexures to the application under Order XLI, Rule 27 of the CPC it appear that the record of rights made available in July 2002 and the rent receipts are also of the year 2002, 2003, 1998 and 1997. In that view the documents are subsequent to the date of disposal of the first Appeal.
17. Let me consider whether these documents should be taken into account as additional evidence or not.
18. The record of rights is current and relate to the suit property, rent receipts are also concerning to the suit property.
19. Let me now quote the provisions of Order XLI, Rule 27 of the Code of Civil Procedure.
Production of additional evidence in Appellate Court.
27(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.
20. From the section it would appear that the section starts from negative approach that the parties shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court if the conditions set out in the provisions of Order XLI, Rule 27 are not fulfilled.
21. It has further been submitted that the documents annexed to the said application are public documents u/s 74 of the Evidence Act and as no formal proof is required, those documents should be considered and/or accepted on its face value.
22. Now, let me quote the provisions of Section 74 of the Evidence Act in this context.
74. Public Documents.
The following documents are public documents:
(1) Documents forming the acts or records of the acts.-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, A [of any part of India] or of the Commonwealth, or of a foreign country;
(2) Public records kept B[in any State] of private documents.
23. From the second provision of Section 74 of the Evidence Act it will appear that to be a public document it should be a record of the act of a public officer or Court. From the annexure it appears that the copy of the record of rights is a certified copy but in the place of signature it has been written "Sd/- Illegible".
24. From the rent receipts which have been collectively marked as annexure-''B'' also it clearly appears that those have been signed allegedly by different employees of Settlement Revenue Department and it has been stated on the body of each and every rent receipt that the rent receipts are issued without prejudice to the rights of the parties. It is also admitted position that the documents which have been made annexures ''A'' and ''B'' have not been exhibited. That apart these documents show only prima facie possession which follows the title.
25. No affidavit-in-opposition to the said application under Order XLI, Rule 27 of the CPC was called for and nothing of the sort was submitted on behalf of the defendants/respondents here. In that view of the matter the contention of the learned Counsel for the plaintiff/appellant for accepting all these documents without any proof here cannot be accepted. The documents should face the test of marking exhibits which can be done only by the Court of fact that is either by the Trial Court or by the lower Appellate Court.
26. Since the appeal which arises out of a suit is a very old one I think it proper to send it to the first Appellate Court for deciding the application under Order XLI. Rule 27 of the CPC filed before this Court within a specified time.
27. I, therefore, remit the appeal back to the first Appellate Court for arriving at a decision taking into consideration the application filed under Order XLI, Rule 27 of the CPC before this High Court in second appeal being CAN 6040 of 2002. When deciding the application, the first Appellate Court will also allow the defendants/respondents to file affidavit-in-opposition if they intend to do so. The First Appellate Court after coming to a conclusion as to whether these documents annexed to this application can be exhibited as evidence or not will send it back to this High Court for deciding the second appeal. The First Appellate Court will come to a conclusion and/or a decision within a period of three months from the date of its receipt of the records and the order.
28. Let the lower Court records be sent down to the first Appellate Court forthwith.
29. This second appeal will be decided after the receipt of the observations of the first Appellate Court in the context stated above. The first Appellate Court after coming to a decision will send the matter back to this High Court along with the records immediately after its arrival of such decision.
Let the second appeal be not treated as heard-in-part by this Court after its remand and when it comes back the same will be decided by the appropriate Bench.
