JUDGMENT
Ashwini Kumar Sinha, J.
1. This second appeal is by the plaintiffs against the judgment of affirmance. The plaintiffs brought a suit for declaration of title and confirmation of possession over 2K, 53/dhurs of land appertaining to survey plot No. 403, Khata No 217 of village Nawanagar in the district of Muzaffarpur. The plaintiffs also prayed for recovery of posession in case they were not found in possession and had also prayed for mesne profits.
2.The plaintiffs’ case, in short, is that the plot in question was recorded in the name of one Mossamat Amolia in the record of rights. Amelia died (the date of death has not been given by the plaintiffs) leaving behind four daughters, namely, Mossamat Machia, Sonbarti, Mossamat Rupia and Mossamat Mantoria. According to the plaintiffs’ case Sonbarti had a daughter Domani who was married to plaintiff No. 1. According to the plaintiffs, defendants are grand-sons of Mossamat Rupia. The plaintiffs’ case is that on the death of Mossamat Amolia the properties left by her were inherited by her four daughters (named above) and each of the daughters had 1/4 share in the properties. The plaintiffs’ further case is that Mossamat Machia (one of the four daughters of the recorded tenant) executed a sale deed with regard to properties left by Mossamat Amolia in favour of one Lalji Sah and the plaintiff No. 1 purchased those properties from Lalji Sah by registered sale deeds (Exts. 5, 5/a and 5/b) dated 16.9.1929 and the plaintiffs’ case is that after the purchase by the aforesaid three sale deeds, they came in possession of the properties covered by the sale deeds and have been coming in possession of be same.
3.According to the plaintiffs, as the defendants got their names mutated fraudulently in the survey, it necessitated the institution of the suit (Title Suit No. 65 of 1962).
4. Thus, in short, the plaintiffs base their title on the three sale deeds mentioned above dated 16.9.1929 executed by Lalji Sah and his heirs in favour of plaintiff No. 1 alone.
5. The suit was contested and the case of the contesting defendants was that the suit land was not the self acquired properties of the plaintiffs and the plaintiffs or their predecessors in interest never came in possession of the same, as alleged. The sale deed executed by the heirs of Lalji Sah in favour of plaintiff No. 1 were fraudulent, collusive and were never acted upon. Further case of the contesting defendants is that neither the plaintiffs nor his heirs ever came in possession over any portion of the suit land by virtue of the sale deeds referred to above.
6. Further plea taken by the contesting defendants was that 7K. 2 dburs of plot No. 406 and 4K. 2 dhurs of plot No. 403 was the bakast land of one Mossamat Aroolia and she always remained in possession of the same. According to the contesting defendants, Rupia who was the next daughter was very poor and as such Mossamat Amelia kept her and her husband with herself and orally gifted all her properties including her house to Rupia and her Nati Moti Sah (original defendant since dead) and thus, according to the contesting defendants, Mossamat Rupia, her husband and Moti Sah came in possession of the entire properties of Mossamat Amolia. The plea taken by the contesting defendants further was that the Sradh ceremony of Mossamat Amolia was performed by Mossamat Rupia and it was she who spent the entire money connected with the Sradh and the other daughters had no concern with it.
7. The contesting defendants further pleaded that after the death of Mossamat Amolia, Mossamat Machia (the eldest daughter) at the instigation of the enemies of Mossamat Rupia started claiming 1/4th share in the lands of Mossamat Amolia which was denied by Mossamat Rupia and thus Mossamat Machi being annoyed, in order to create evidence, executed a fraudulent kebala dated 20.6.1899 without necessity with false averments in the sale deed in favour of Lalji (her Nandosi) in respect or 2K. of land of plot No. 403, 7K. 2 dhurs of land of plot No. 406. According to the defendants, this sale deed was never acted upon and Lalji Sah, by virtue of the said sale deed never acquired any title or possession over any portion of plot Nos. 403 and 406 and the same, as usual, remained in possession of the defendants. According to the defendants, plot Nos. 403, 406 and 407 were near the house of plaintiff No. 1 and he wanted to acquire them. According to the defendants, on 11.1.29 plaintiff No, 1 got an Ataiyanama executed in his favour from Mossamat Sonbarti in respect of plot No. 406 and taking advantage of certain entry regarding Batai of Lalji Sah, he got executed three sale deeds in his favour by the sons and grand-sons of Lalji Sah in respect of plot Nos. 403 and 406, but the plaintiff No. 1 or the other plaintiffs never came in possession of any portion of the plot.
8. According to the defendants, another important plea taken by them is that the plaintiffs, on the basis of the aforesaid three documents, filed a partition suit which was numbered as Partition Suit 13 of 1930 in respect of plot No. 403, but the plaintiffs withdrew the said suit. Thereafter, a few criminal cases cropped up under Section 144 of the Code of Criminal procedure and the other under Section 379 of the Indian Penal Code and these criminal cases terminated against the plaintiffs.
9. Another plea taken by the contesting defendants was that in the year 1930 plaintiff No. 1 again filed a collusive rent suit (No. 222/30) against Mossamat Sonbarti and obtained an ex parte decree against her in respect of plot No, 406 and in execution of the said decree got plot No. 406 auction sold and purchased in the name of his relation Madhu Rai. Thereafter plaintiff No. 1 again got a title suit (Title Suit No. 267 of 1930) in respect of plot No. 406 by Mossamat Sonbarti against Mossamat Rupia and the defendants. This suit was contested by the defendants and ultimately the suit was withdrawn.
10. Another plea taken by the contesting defendants is that being not satisfied with the aforesaid judgments against them, the plaintiffs again filed another title suit (Title Suit No. 56 of 1938) in respect of the same plot No. 406 against the defendants. The defendants again appeared and contested the suit. This suit did not proceed and ended in compromise and a compromise decree was accordingly drawn by the court. According to the defendants, under the terms of the compromise the defendants got the entire plot No. 403 (subject matter of the instant appeal) and 3 K. 2 dhurs of plot No. 406 and the plaintiffs got 4 K. in plot No. 406. According to the defendants, it was agreed by the said compromise that the plaintiffs shall have no claim with regard to plot No. 403 (subject matter of the present appeal) and the plaintiffs shall execute a sale deed in respect of 3 K. 2 dhurs of plot No. 406 in favour of the defendants and plaintiff No, 1 did in fact execute the sale deed in pursuance of that compromise in favour of the defendants on 14.1.1937.
11. Another plea taken by the contesting defendants was, in any case, the defendants have been coming in possession of the suit land since several 12 years and it could also be said that they acquired good title by adverse possession and the plaintiffs’ title, if any, must be deemed to have been extinguished in respect of the suit land.
12. The trial court dismissed the suit and disbelieved the story of the plaintiffs. On a detailed consideration of the entire oral and documentary evidence on the record and having given a proper appraisal of the evidence as well, the trial court came to the following finding;
The circumstances obtaining in the case negative the plaintiffs’ case of title and possession over the disputed land and under the circumstances I am constrained to hold that the plaintiffs have failed to establish their case. I further hold that the plaintiffs have got no title over the disputed land nor they are in possession of the disputed 1 and. I further hold that the plaintiffs are not entitled to recover possession and the present suit is hatred by limitation and adverse possession.
13. Thereafter the plaintiffs preferred an appeal and it was numbered as Title Appeal 22/38 of 1969/73. The lower appellate court again on a fuller and detailed discussion of the entire oral and documentary evidence on the record and having properly appraised the evidences came to the following finding:
Thus, considering the evidence both oral and documentary coupled with the circumstances of the case discussed above I am of the opinion that the plaintiffs have miserably failed to prove their title and possession over the suit land within 12 years of the suit. On the contrary, the title and possession of the contesting defendant over the suit land for more than several 12 years is sufficiently established and thus, in view of the continuous possession of the contesting defendants over the suit land since last several 12 years it can also be said that the defendants have also perfected their title over the suit land by adverse possession and the plaintiffs if at all any title the same stood already extinguished.
Thus the lower appellate court affirmed the findings of the trial court on a detailed consideration of the entire oral and documentary evidence on the record.
14. Hence the plaintiffs have preferred the present second appeal.
15. There is one more fact which needs to be stated. On 13.11.1973, during the pendency of the appeal before the lower appellate court, the plaintiffs filed an application under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) for taking one certified copy of return dated 21.12.1956 (filed under Section 3 of the Bihar Land Reforms Act 1950) for taking this document as an additional evidence in the case. According to the plaintiffs, this certified copy of return showed survey plot No. 403 (area 4K. 2 dhurs) owned by Dhautal Singh (plaintiff No. 1) and in this application for additional evidence, the case made out by the plaintiffs was that this document was not to the knowledge of the plaintiffs’ Pairvikar and hence could not be filed plaintiff being out at Calcutta. The court of appeal below on 13.11.1973 itself ordered that the application be put up on the date fixed, but, according to the plaintiffs, the court of appeal below never disposed of this application and, after hearing the parties, dismissed the appeal.
16. The plaintiffs appellants have filed a fresh application under Order 41 Rule 27 of the Code in this Court on 10.11.1980 reiterating the very same averments made earlier by them before the court of appeal below and this Court, on 5.5.1982 ordered that the application will be considered at the time of hearing.
17. The learned Counsel for the appellants has advanced three submissions:
Firstly, that there could not be adverse possession inter se co-owners, namely, 1/4th share holder Rupia’s grand-sons (the defendants) and the plaintiffs (co-owners) to the extent of 1/4th share of Sonbarti;
Secondly, the admission by the plaintiff with regard to plot No. 403 in the earlier Title Suit No. 56 of 1938, disposed of on compromise, between the same parties, could not be used in the present suit against the plaintiffs which concerns plot No. 403 alone : and
Thirdly, that Sonbarti’s daughter Domani having died during the pendency of the suit, the plaintiff No. 1 as heir of Mossamat Domani under the Hindu Succession Act is entitled to 1/4th share jointly with the defendants, in accordance with relief No. 3 of the plaint, relief No. 3 of the plaint being–“Digar Jis Dadarsi Ka Mudai Mushtahak Hobe Decree Uski Bhi Bahak Mudai Barkheiaf Mudalah Sadir Farmaya Jabe.” (In other words, to any other relief which plaintiffs may be entitled to).
18. So far as the first contention advanced by the learned Counsel for the appellants is concerned, it needs only to be referred to be rejected. According to this submission, the plaintiffs, before this Court seem to claim title over the suit land not as purchasers from Lalji Sah and his heirs (and not basing their title on the three sale deeds, i.e. Section 5, 5/a and 5/b), but as a co-owner (plaintiff No. 1 being marked to Domani, daughter of Sonoarti). This is absolutely a new case which was never pleaded in the plaint nor argued in either of the two courts below nor the plaintiffs appellants have taken a ground in the memorandum of appeal. Even if, the plaintffs appellants would have taken a ground, the plaintiffs appellants were not entitled to ask this Court td set aside the judgments and decrees of the courts below on absolutely a new case never made out in the plaint. In this view of the matter, there is no force in this submission advanced by the learned Counsel for the appellants.
19. So far as the second submission advanced by the learned Counsel for the appellants is concerned, that is to the effect that the admission made by the plaintiff No. 1 in Title Suit No. 56 of 1938 between the same parties with regard to plot in question which suit was disposed of on a compromise).could not be used in the present suit against the plaintiffs, as the present suit concerns plot No. 403 alone this submission as well as has no force. The plaintiffs agreed in the said compromise that the plaintiffs shall have no claim with plot No. 403 and not only that in pursuance of the compromise the plaintiff also executed a sale deed with regard to 3 K 2 dhurs of land appertaining to plot No. 406 in favour of the defendants. It is well settled that an admission made by a party in a plaint signed and verified by him may be used as evidence against him in the other suit. Though such an admission cannot be regarded as conclusive, it is open to the party to show that it was not true. Reference be made to the cases of Basant Singh v. Janki Singh and Ors. A.I.R. S.C. 1967 374, Dattatrya Shripati Mohite v. Shankar Ishwara Mohite and Anr. A.I.R. 1960 B. 153, Satyadeo Prasad alias Lal Babu v. Chandarjoti Debi and Ors. . The learned Counsel appearing for the appellants tried to distinguish the principles decided is the aforesaid cases on the ground that the ratio decided in those cases was that admission in pleadings and not in a compromise petition and according to the learned Counsel for the appellants that made the difference. In my opinion, the submission advanced by the learned Counsel has no force. The compromise entered into between the same parties in Title Suit No. 56 of 1938 also concerned the plot in question and the plaintiffs agreed that they shall have no concern with plot No. 403. As already stated above, in pursuance of the terms of the compromise which was acted upon the plaintiffs themselves, the plaintiff No. 1 executed a sale deed with regard to 3 K. 2 dhurs of plot No. 406 (subject matter of that title suit) in favour of the defendants. The learned Counsel for the appellants, in support of his second submission relied upon the case of Kallar Choudhary and Ors v. Mt. Kamod Choudharain and Anr. A.I.R. 1936 P. 300. This case is clearly distinguishable on facts. In this case this Court was considering the compromise decree and held that where the operative portion of the compromise decree dealt with the property in dispute in the suit in which the decree was made, and omitted the other property to which that suit did not relate, but was dealt with in the compromise, it could not be deemed that the decree or compromise created any title in any party under the compromise, with regard to that other property, and the compromise at its best operated as a base agreement in contra-distinction to a document creating a title. The case of Trilok Chand Kapur v. Davaram Gupta A.I.R. 1967 C. 541 relied upon by the learned Counsel for the appellants in support of his second submission also does not support the appellants, as the ratio decided in this case is absolutely a different one. It held that the consent decree must be confined to matters which related to a suit and must not travel beyond that, but a petition of compromise may deal with matters various extraneous to the suit on which the parties may agree. In my opinion, this case relied upon by the learned Counsel for the appellants goes against the appellants.
20. Thus, in my opinion, this submission of the learned Counsel for the appellants is based upon a total misconception of law and is absolutely without any force. There is yet another aspect of the matter which is desirable to be mentioned. As I have already stated above, this admission was not a conclusive piece of evidence. It was only a piece of evidence. The lower appellate court has not based its finding exclusively on this admission of the plaintiff. As already stated above, the lower appellate court has thoroughly discussed the entire oral and documentary evidence on the record including this piece of evidence as one of the evidences and on a very proper and a correct appraisal of the entire evidence on the record, the lower appellate court affirmed the findings of the trial court and dismissed the appeal. Hence there is no illegality or perversity or unreasonableness to the findings given by the lower appellate court. Thus this submission of the learned Counsel for the appellants also fails.
21. Now remains the last submission to be considered. The learned Counsel for the appellants has submitted that the plaintiffs appellants were entitled to joint possession with the defendants because the plaintiff No. 1 must be treated as heir of Domani (daughter of Sonbarti and as Domani (wife of plaintiff No. 11 died during the pendency of the suit, the plaintiff was entitled to joint possession under the Hindu Succession Act, 1956 and the learned Counsel for the appellants persuaded me. to bring this submission within the fold of relief No. 3, i.e. within the fold of any other relief.
22.This submission needs to be referred to be rejected, as there is no application on the record filed by any of the parties to the effect that Domani died during the pendency of the suit. The learned Counsel for the appellants asked me to look to the evidence of one of the D.Ws. who had spoken about it. I fail to understand as to how can the plaintiffs appellants advance a submission with regard to joint possession when (i) they have never submitted as such, rather they claimed exclusive possession and asked for confirmation of possession on the basis of title derived from the three sale deeds (Exts. 5, 5/a and 5(b), (ii) If Domani, in fact, died during the pendency of the suit, is was upto the plaintiffs, who had filed an appeal before the lower appellate court to bring it to the notice of the lower appellate court by a regular application which the plaintiffs appellants did not do (iii) It was further open to the plaintiffs appellants in the lower appellate court itself, if they so desired, to file an application for amendment of plaint and ask for joint possession on one plea or the other, but they did not do even this, (iv) Even in this Court there is no application that Domani died during the pendency of the suit and even here there is no application for amendment of plaint. I wish to note that even there had been an application for amendment of plaint asking for joint possession on the plea of being the heir of Domani (daughter of Sonbarti that could not have been allowed for the simple reason that would have completely changed that complexion and character of the suit.
23. Thus this submission advanced by the learned Counsel for the appellants as well has no substance.
24. No other point was raised before me.
25 Then remains the application filed by the plaintiffs appellants in this Court under Order 41 Rule 27 of the Code to be considered. The facts relating to this matter have already been stated above. It is well settled that the provisions of Order 41 Rule 27 of the Code are not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up the omissions in the Court of appeal. Under Rule 27, Clause (1)(b) it is only where the appellate Court “requires” it (i.e. finds it needful) that additional evidence can be admitted, It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal heard a party applies to reduce fresh evidence, but “when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent”. It may well be that the defect may be pointed out by a party, or that a party may move the Court but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands and wherever the Court adopts this procedure, it is bound to record its reason under Sub-clause (2) of Rule 27. There may be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it required additional evidence to enable it to pronounce judgment, yet in the interest of justice the appellate Court may consider that something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence “for any other substantial cause”.
26. The application filed in this Court for taking certified copy of the return dated 21.12.1956 as an additional evidence must be considered in the light of the aforesaid well settled principle of law. It is true that on the averment made in the petition filed by the plaintiffs appellants under Order 41 Rule 27 of the Code, it is stated that the lower appellate court disposed of the appeal without passing any order on a similar petition filed before it, and this statement has not been controverted by the other side, as there is no reply to this petition. In fact, nobody has appeared on behalf of the respondents. The question then arises whether this Court] should allow this application and take the certified copy of the return dated 21.12.1956 as an additional evidence in the appeal. The well established principles of law have already been stated above. The only reason given by the plaintiffs appellants in this petition is that the same (i.e. return dated 21.12.1956) was not within the knowledge of the plaintiffs’ Pairvikar (plaintiff No. 1 living at Calcutta). I have perused the entire petition. There is no other reason given in the petition. The reason on the basis of which the plaintiffs appellants contend that the certified copy of return dated 21.12.1956 be taken as additional evidence docs not fall within the purview of Order 41 Rule 27(1)(b) of the Code.
27. Having perused in detail the judgments of the trial court and the lower appellate court, I am satisfied that the concurrent findings of facts are based on detailed consideration of the Entire evidence on the record with most proper appraisal thereof and this piece of evidence (certified copy of the return, just referred to above) is not needed for pronouncing the judgment. In my opinion, it is not required by this Court for pronouncing the judgment. I am of opinion, that this power conferred upon the lower appellate court must be sparingly exercised and it must be seen, before exercising this power that the new evidence sought to be adduced has a direct and important bearing on the main issues in the case. I am satisfied that the document in question has no direct and important bearing on the main issues in the case in which have been considered already in detail. In this view of the matter, the application filed by the plaintiffs appellants under Order 41 Rule 27 of the Code is rejected.
28. In the result, this appeal is dismissed, but without costs.