Subhash Chand, J
1. An interlocutory application being I.A. No.6398 of 2024 has been filed on behalf of the respondent under Order XLI Rule 27(1)(aa) and (b) of the Code of Civil Procedure, 1908 (in short “CPC”) to bring on record some additional evidence which was not in knowledge of the respondent and same is essential to be examined by the Court to pronounce the judgment.
2. The respondent has filed the Original Suit No.392 of 2016 for declaration of right, title and interest over the suit property. The learned trial court vide judgment dated 30th August, 2022 decreed the suit in favour of the respondent. Against the said judgment and decree, this first appeal was filed on behalf of the appellant/defendant. Learned counsel for the respondent while verifying the records of this case, found that Ext.1/a which is the sale deed no.3116 dated 27th March, 1985 by which the vendor of the respondent, namely, Smt. Usha Goenka had purchased the suit property does not refer to the suit property. On inquiry being made, the vendor had informed that two sale deeds bearing nos.3116 and 3117 dated 27th March, 1985 was executed between Kanti Lal J. Chanchani, Jagdish J. Chanchani and M/s. Dossa Estate (P) Limited (sellers) and Sri Umesh Chand, Smt. Pushpa Chand, Sri Shishir Goenka and Usha Goenka (purchasers). It seems that inadvertently the reference of sale deed no.3117 dated 27th March, 1985 was omitted in the sale deed no.4949 dated 11th July, 2003 by which the respondent has acquired right, title and interest in the property in question. The certified copy of the sale deed no.3117 dated 27th March, 1985 is Annexure-IA/1 of this interlocutory application.
2.1 It is further submitted that the sale deed bearing no.3117 dated 27th March, 1985 was more than 30 years old on the date of filing the suit and as per Section 90 of the Indian Evidence Act is admissible in evidence.
2.2 In view of above, learned counsel for the respondent prayed to allow the instant interlocutory application and to take the certified copy of registered sale deed no.3117 dated 27th March, 1985 as additional evidence in the instant appeal.
3. Per contra, Mr. Ajit Kumar, learned senior counsel for the appellants assisted by Mr. Rahul Kumar Gupta vehemently opposed the contentions of this interlocutory application on the ground that the said document was very much in knowledge of the respondent from the date of filing the original suit. If the said document is allowed to be taken on record, it would cause serious prejudice to the appellant. Moreso, when there is no pleadings in the plaint in regard to this document which is sought to be taken on record. By way of adducing the additional document at the stage of the appeal, the respondent wants to fill up the lacuna on account of which the very suit of the respondent/plaintiff would fail.
4. From perusal of the plaint of Original Suit No.392 of 2016, it is found that plaintiff—Rameshwar Dayal Agarwal has averred himself to be the rightful owner of the land measuring 5254 square feet or 7.3 Kathas in Plot No.1661, 1662 and 1668 appertaining to Khata No.16 of Mouza Bhelatand, Mouza No.89, P.S. Govindpur, Chowki Sadar Sub-Registry Office Dhanbad, District Dhanbad. On the basis of sale deed no.4949 dated 11th July, 2003 which was executed in favour of the plaintiff by the rightful owner Smt. Usha Goenka wife of Hemant Goenka and since the date of purchase, the plaintiff is in peaceful possession over the suit land. It is also further averred that his name also got mutated in the Government sherista and he has been paying rent to the State Government under Jamabandi No.1502 and rent is paid up to date. It is also averred that the defendants criminally trespassed on 19th July, 2015 upon the land in suit and raised boundary wall up to 10 feets over the existing boundary wall of the plaintiff and also constructed a big Nala upon the land of the plaintiff and facing the land of the plaintiff have also fixed a sewerage gas pipe. The defendants had also constructed temporary hall over the suit land. In view of the above prayed the declaration of title and khas possession in favour of the plaintiff against the defendant by evicting the defendant from the suit land described in the Schedule of the plaint. Relief for permanent injunction has also been sought against the defendants restraining them not to interfere and not to change the nature and character of the suit land.
4.1 From the very pleadings of the plaint, it is evident that on the basis of the suit of plaintiff he is claiming his right, title and interest therein as the Sale Deed No.4949 dated 11th July, 2003 which was executed in his favour by the rightful owner Smt. Usha Goenka wife of Hemant Goenka. On behalf of the plaintiff, the very basis of the suit, the sale deed no.4949 dated 11th July, 2003 was filed before the learned trial court which is Ext.1. It is also further mentioned therein that the original land was sold by M/s J. Dossa Estate Pviate Limited to Umesh Chandra, Smt. Pushpa Chand, Usha Goenka and Sishir Goenka by virtue of sale deed no.3116 dated 27th March, 1985. The certified copy of the said sale deed was filed on behalf of the defendant, who is appellant in this appeal as Ext.A/1. In this sale deed, the land of Mouza No.89, Plot No.1668 is the only plot which is property in suit. In this sale deed, the plot nos.1661 and 1662 and their area relating to Khata No.16 Mouza Bhelatand Thana No.89 is not mentioned.
4.2 Indeed in favour of Smt. Usha Goenka on the very date i.e., 27th March, 1985 the very vender M/s Dosha Estate Private Limited has executed two sale deeds in favour of Smt. Usha Goenka along with other co-sharers. The another sale deed no.3117 dated 27th March, 1985 which is sought to be adduced as additional evidence at the stage of appeal which was executed by the same vender in favour of very those purchaser who are vender and purchaser to the sale deed no.3116 in the schedule in regard to Khata No.16, Mouza Bhelatand Thana No.89. The land of plot no.1660 and 1661 was also purchased by Smt. Usha Goenka along with other co-sharers.
4.3. The sale deed which is executed in favour of respondent/plaintiff by Smt. Usha Goenka bearing sale deed no.4949 dated 11th July, 2003, the rest of plot nos.1661 and 1662, the title thereof had derived by Smt. Usha Goenka vide sale deed no.3117 dated 27th March, 1985.
4.4 The sale deed no.3117 dated 27th March, 1985 is necessary to bring on record to substantiate the justice and also to pronounce the judgment adjudicating the rights of the parties in regard to the land in suit which could not be brought on record on behalf of the plaintiff before the learned trial court. The reason thereof is that the sale deed which was executed in favour of the plaintiff and the source of deriving title by Smt. Usha Goenka is only the sale deed no.3116; but sale deed no.3117 was omitted. The said sale deed no.3117 is necessary to explain how Smt. Usha Goenka had derived title to execute sale deed in favour of the plaintiff on 11th July, 2003 in view of Section 95 of the Indian Evidence Act.
4.5 As such in view of Order XLI Rule 27(B), the said document is necessary to bring on record to enable the Court to pronounce the judgment with the substantial cause read with Section 95 of the Indian Evidence Act, 1872 which provides that when language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
4.6 The Hon’ble Apex Court in the case of J. Balaji Singh v. Diwakar Cole reported in 2017 (14) SCC 207 at paragraphs 22.1 and 22.2 has held as under :
“22.1. First, the additional evidence sought to be filed at the first appellate stage was held to be material and necessary for proper adjudication of the suit; and second, the reasons as to why it could not be filed during the trial also found acceptance to the first appellate court.
22.2. In order to enable the parties to have fair trial in civil suit and with a view to do substantial justice, the first appellate court, in our view, rightly allowed the plaintiff to file the additional documents in appeal which satisfied the requirements of Order 41 Rule 27 of the Code.”
4.7 The Hon’ble Apex Court in the case of Uttaradi Mutt vs. Raghavendra Swamy Mutt reported in (2018) 10 SCC 484 has held that the production of additional evidence/documents at
appellate stage permissible when such evidence/documents have material bearing on the issue involved in the suit and in determining the rights of the parties.
4.8 The Hon’ble Apex Court in the case of Wadi versus Amilal reported in (2015) 1 SCC 677 at paragraph 5 has held as under :-
“5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. Invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of the material or record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.”
4.9 The Hon’ble Apex Court in the case of Sanjay Kumar Singh v. State of Jharkhand reported in (2022) 7 SCC 247 at paragraph 7 has held as under :
“7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.”
5. So far as the contention of the learned counsel for the respondent in regard to sale deed no.3117 dated 27th March, 1985 is concerned, there is no pleading in the plaint and the same is not found tenable because the pleading in regard to deriving title of the plaintiff from Smt. Usha Goenka is already there and how Smt. Usha Goenka had derived the same is a matter of evidence and in view of the settled law, in pleading the evidence is not required to be pleaded.
6. Since the respondent/plaintiff has derived the title of the property in suit on the basis of the sale deed no.4949 dated 11th July, 2003 which was executed in favour of Smt. Usha Goenka wife of Hemant Goenka and Smt. Usha Goenka had derived the title in regard to the land in suit of Mouza Bhelatand, Thana No.89 Khata No.16 pertaining to Plot No.1668 vide sale deed no.3116 and the title of plot nos.1661 and 1662 of the very Khata No.16 Mouza Thana No.89 through the sale deed no.3117 and both these sale deeds were executed on 27th March, 1985.
7. In view of the aforesaid discussion and keeping in view the judicial pronouncement of Hon’ble Apex Court, this interlocutory application is hereby, allowed.
8. Accordingly, the certified copy of the sale deed no.3117 dated 27th March, 1985 is taken on record. The appellant is at liberty to adduce evidence in rebuttal and to cross-examine the witnesses of sale deed if adduced for examination-in-chief.
9. I.A. No. 6398 of 2024 stands disposed of.
F.A. No.108 of 2022
10. While disposing the I.A. No.6398 of 2024, the sale deed no.3117 dated 27th March, 1985 has been taken on record and in rebuttal thereof, the appellant has been given liberty to adduce evidence and cross-examine the witness of sale deed, if adduced, therefore, without going into merits of the case, the impugned judgment and decree is set aside by allowing this appeal. The suit is remanded to learned trial court to decide the suit afresh after giving opportunity to parties for adducing oral evidence pertaining to sale deed and rebuttal evidence.
