HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No.603 of 1997
Nageshwar Prasad Singh
...Petitioners
Versus
1. Durga Devi
2. State of M.P.
...Respondents
(Proforma Respondent)
{Second appeal under Section 100 of the Code of Civil
Procedure, 1908}
! Mr. A.K. Prasad, counsel for the appellant
^ Mr. D.N. Prajapati, counsel for respondent No.1
Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.2
Honble Mr. T.P. Sharma, J
Dated:28/08/2009
: Judgment
JUDGMENT
(Delivered on 28th August, 2009)
1. This second appeal under Section 100 of the Code of
Civil Procedure, 1908 (for short `the Code’) is directed
against the judgment & decree dated 6-5-97 passed by the 2nd
Additional District Judge, Ambikapur in Civil Appeal No.2A/93
affirming the judgment & decree dated 26-8-92 passed by the
Civil Judge Class-II, Ramanujganj in Civil Suit No.3A/86,
whereby learned Civil Judge Class-II has passed the decree
for possession & permanent injunction in favour of respondent
No.1 herein relating to the suit land.
2. I have heard learned counsel for the parties, perused
the impugned judgment & decree and record of the Courts
below.
3. Following substantial questions of law have been
formulated for the decision of this appeal: –
A. Whether on the findings of Court below
itself that the plaintiff is being
threatened dis-possession, a decree for
possession could be granted?
B. Whether the lower appellate Court committed an error of
law in refusing to permit the appellant/ defendant to adduce
additional evidence?
4. Brief facts leading to filing of this appeal are that as
per the pleading of respondent No.1 herein/plaintiff, Khasra
No.4/33 “d” 0.061 hectares of land situated at Village
Aaragahi, Patwari Halka No.34(c), Distt. Sarguja is owned by
respondent No.1. She had purchased the land from one
Vishwanath vide sale deed dated 24-6-83. One hut was also
situated over the land and some trees were standing over the
vacant land. The present appellant who was permanent
resident of Aurangabad, State of Bihar, came to Village
Aaragahi in the year 1983. The present appellant threatened
respondent No.1 herein on which she filed a suit for
permanent injunction. During the course of pendency of the
suit, she was dispossessed by the appellant whereupon she
amended the plaint for declaration of title and possession
over the property. The present appellant has contested the
case and pleaded that he has purchased the land & property in
the year 1987 from Vishwanath and also given the same
identification which the plaintiff/respondent No.1 herein has
given in her plaint. Issues were framed on the basis of
averments and learned trial Judge has decreed the suit for
declaration, possession and permanent injunction. The
present appellant has preferred appeal and learned first
appellate Court has dismissed the appeal with modification of
the judgment & decree relating to valuation of suit house and
payment of court fees. During the pendency of appeal, the
present appellant has filed an application for admitting
additional evidence in terms of Order 41 Rule 27 of the Code
which was dismissed vide order dated 5-1-95. The present
appellant has not challenged the order rejecting the
application for admitting additional evidence at the
appellate stage before appropriate forum.
5. Learned counsel for the appellant vehemently argued that
the evidence of respondent No.1 reveals that she was only
threatened by the appellant for dispossession from the land
and in case of threat of possession decree for possession
would not be legally possible. Learned counsel further
argued that in order to decide the real controversy, the sale
deed by which the present appellant has purchased the
property is a substantial document and the appellant has not
filed the said document before the trial Court because his
counsel has not advised him to file the same, but the
appellant has filed application for admitting additional
evidence under Order 41 Rule 27 of the Code and the Court
below has illegally dismissed the application. Although the
appellant has not challenged the order dismissing the
application before any appropriate forum, but has challenged
rejection of his application for admitting additional
evidence by the lower appellate Court in this second appeal.
The present appellant is competent to challenge the dismissal
of the said application on the ground that all interim orders
merge into final decision and doctrine of merger will be
applicable in the present appeal. Learned counsel also
argued that both the parties have led evidence and the
present appellant has specifically pleaded & adduced evidence
that he has purchased the property. He has also given
description of the property in his written statement. This
is not the case where the present appellant has tried to
introduce a complete new evidence wholly irrelevant for just
decision of this case. Learned counsel placed reliance in
the matter of Eastern Equipment & Sales Limited v. Ing. Yash
Kumar Khanna1 in which the Apex Court has held that the
appellate Court is required to take up the appeal along with
the application for additional evidence. Learned counsel
further placed reliance in the matter of State of Rajasthan
v. T.N. Sahani and others2 in which it has been held by the
Apex Court that the application for admitting additional
evidence should be decided along with the appeal considering
the necessity of additional evidence. Learned counsel also
placed reliance in the matter of Bhagwanji and Kalyanji v.
Punjabhai Hajabhai Rathod3 in which the Gujarat High Court
has held that the order rejecting to accept the document is
not appealable, therefore, it can be challenged before the
appellate Court with help and assistance of Section 105 of
the Code. Learned counsel further placed reliance in the
matter of Achal Misra v. Rama Shanker Singh and others4 in
which the Apex Court has held that interlocutory orders may
be challenged in final appeal. Learned counsel also placed
reliance in the matter of Narayan Prasad Pandey v. Om Prakash
Mahendra5 in which it has been held by the Madhya Pradesh
High Court that if land is sold to the party, then in absence
of any ownership or rights upon the trees, presumption of
transfer of trees standing over the land would be in favour
of the person in whose favour the land was transferred.
6. On the other hand, learned counsel for respondent No.1
argued that the appellant has specifically pleaded that he
has purchased the property from Vishwanath by registered sale
deed but he has not filed the document before the trial
Court. The present appellant has tried to file the same
before the appellate Court by filing application under Order
41 Rule 27 of the Code in which it has been mentioned that he
was in possession of the sale deed, but his Advocate has
never advised for filing of the said document before the
Court, therefore, he has not produced the document before the
trial Court. The present appellant has preferred first
appeal before the lower appellate Court on 14-9-92 and has
filed application for admitting additional evidence on 28-9-
94 after two years from filing of the appeal. Even the
present appellant has not mentioned any ground in the first
appeal relating to dismissal of application for admitting
additional evidence except the common ground that the trial
Court has erred in decreeing the suit. Learned counsel
further argued that respondent No.1 herein has pleaded &
proved her case that during the course of pendency of the
suit, the appellant herein has dispossessed her and
therefore, she has amended the plaint, and the Court below
has rightly decreed the suit for possession and declaration.
Learned counsel also submits that no substantial question of
law is involved for just decision of this case. Learned
counsel placed reliance in the matter of Thiagarajan and Ors.
v. Sri Venugopalaswamay B. Koil and Ors.6 in which it has
been held by the Apex Court that the second appeal shall only
lie on the substantial question of law and re-appreciation of
evidence is not permissible in second appeal. Learned
counsel further placed reliance in the matter of G.
Mahalingappa v. G.M. Savitha7 in which the Apex Court has
held that concurrent findings of facts of the courts below
cannot be interfered without insufficient and just reasons.
Learned counsel also placed reliance in the matter of Gurdev
Kaur & Ors. v. Kaki & Ors.8 in which the Apex Court has held
that concurrent findings of two courts below are not liable
to be disturbed without any substantial ground. Learned
counsel further placed reliance in the matter of Chacko and
Anr. v. Mahadevan9 in which the Apex Court has held that the
appellate Court cannot go into question of facts in second
appeal.
7. In order to appreciate the grounds raised by the
parties, I have examined the material available on record
necessary for the decision on the substantial questions of
law.
8. The first substantial question of law is the question of
law which does not require any assistance of the materials of
the present case. Threat for dispossession and dispossession
from the property are not one and the same, threat for
dispossession is only an attempt for possession of the
property and unless the party is dispossessed, no decree for
possession can legally be passed. The trial Judge has framed
issue No.3 that “whether the defendant is trying to
dispossess the plaintiff from her house and plot”. The
answer to the said issue has been given by the trial Court as
positive. In para 9 of the trial Court’s judgment, the trial
Judge has recorded finding that the appellant herein has
threatened respondent No.1 herein by fire arm for
dispossessing her from the suit property. On the basis of
said material the trial Court has granted decree for
permanent injunction against the appellant not to enter upon
the plaintiff’s property, and has also passed a decree for
declaration of title over the property and for possession.
9. Both the parties have led evidence in their support.
Respondent No.1 herein/plaintiff has specifically deposed in
para 6 of her evidence that the appellant has threatened her
and he is trying to dispossess her from the suit property.
Her witness Rajender Ram (PW-2) has also deposed in para 2 of
his evidence that the defendant used to quarrel with the
plaintiff and used to compel her to leave the house. Per
contra, the defendant/appellant has examined himself as
witness and has deposed in his evidence that he is in
possession of the land purchased from Vishwanath and the
plaintiff used to quarrel with him on the ground that she is
owner of the property. Defendant witness No.2 Vishwanath,
seller of the property, has deposed that he has sold the land
comprising 15 decimal & 31 decimal area to the defendant in
which one house & nine trees were standing. He has also
deposed that the appellant herein is residing in the
aforesaid house and he is in possession of the open land. He
has admitted in para 13 of his evidence that he has executed
sale deed in favour of the plaintiff also along with the
house. He has denied the suggestion that he has only sold
open land to the defendant and has not sold land with house.
Defendant witness No.3 Suryadev & defendant witness No.4
Bandhan Ram have supported the version of the defendant.
10. In the present case, both the parties claim that they
have purchased the land. Statements of the witnesses of both
the parties have been recorded between 1988 & 1991. The
plaintiff has amended his plaint relating to dispossession on
5-4-1989 prior to recording of her evidence, but she has not
deposed anything relating to her dispossession from the
property. Learned lower appellate Court has dismissed the
appeal and modified the decree of the trial Court relating to
valuation & payment of Court fees, but has not recorded any
finding that on what basis the decree for possession has been
passed.
11. Decree for possession cannot be granted on the basis of
pleading in absence of any evidence. In the matters of
Thiagarajan, G. Mahalingappa, Gurdev & Chacko (supra), the
Apex Court has held that re-appreciation of evidence is not
permissible in second appeal and concurrent findings of fact
of the two Courts below cannot be interfered without
insufficient and just reasons.
12. Normally, second appellate Court should be reluctant in
re-appreciation of concurrent findings of fact of the two
Courts below, but in the present case without any evidence of
dispossession, the Court below has passed the decree for
possession. Evidence adduced on behalf of respondent No.1
and decree for possession granted by the trial Court are self-
contradictory. The decree of possession is not based on the
evidence of respondent No.1.
13. Admittedly, at the appellate stage, parties are required
to satisfy the Court that the grounds mentioned in Rule 27 of
Order 41 of the Code are available in their favour for
admitting additional evidence at the appellate stage.
According to the case of the present appellant, his case
falls within the category of Order 41 Rule 27 (1) (aa) of the
Code which reads as follows: –
“(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”
14. According to the case of the appellant, he has purchased
the land from one Vishwanath by a registered sale deed and he
was in possession of the registered sale deed, but he has not
filed the sale deed before the trial Court. The appellant
has examined himself and seller of the land Vishwanath.
Respondent No.1 has examined Jairam Tiwari (PW-3) who has
admitted the sale transaction by Vishwanath to the defendant.
15. This is not the case where the appellant/defendant has
tried to introduce entirely a new evidence or irrelevant
evidence. He has applied before the lower appellate Court
for admitting additional evidence of the sale deed which he
has not filed before the trial Court on the basis that it was
not advised by his counsel. It is a matter of common
knowledge that when the case is represented by counsel,
virtually the case is entrusted to the counsel by the
parties. Parties are not acquainted with law and procedure,
therefore, they blindly rely on their counsel. If counsel of
the appellant would have advised the appellant for filing of
a document, then there was no occasion for the appellant to
hide or conceal the said document. Although at the appellate
stage the appellant has not given the details and has in
brief manner shown the cause for non-filing of document, both
the parties have substantially admitted the sale deed
executed by Vishwanath to both the parties. Evidence of
Vishwanath reveals that he has not sold the same property to
the plaintiff & the defendant, but has sold one portion to
the plaintiff and another portion to the defendant, and the
land is adjoining, therefore, for substantial decision of the
case it requires local inspection by issuance of Commission.
16. For final disposal of the dispute, the present sale deed
containing description of property of the appellant/defendant
was necessary and it ought to have been admitted by the lower
appellate Court at the time of final disposal of the appeal.
As held by the Apex Court in the matters of State & Eastern
Equipment (supra), application for admitting or rejecting
additional evidence should be decided at the time of final
disposal of the appeal. Learned lower appellate Court has
committed illegality by deciding the application for
admitting additional evidence before final decision in the
appeal. The appellant has not challenged the order of
dismissal of his application by the lower appellate Court.
As held by the Apex Court in the matter of Achal (supra),
interim order can be challenged in terms of Section 105 of
the Code by taking ground in the appeal.
17. For the foregoing reasons, the first substantial
question of law formulated for the decision of this appeal is
decided as negative and it is held that in the present case,
decree for possession in favour of respondent No.1 is not
sustainable. Second substantial question of law is decided
as positive.
18. On the basis of findings on the aforesaid substantial
questions of law, the appeal is allowed. Judgment & decree
of both the Courts below are hereby set aside. The suit is
remitted back to the Court of first instance i.e. Civil Judge
Class-II, Ramanujganj. The trial Court should provide
opportunity of leading evidence on the basis of sale deed
filed on behalf of the appellant and on the question of
dispossession to the parties.
19. Parties are at liberty to file appropriate application
for appointment of Commissioner for local inspection and if
such application is filed, the trial Court shall decide the
same in accordance with law and pass judgment & decree
afresh. No order as to costs.
20. Advocate fees as per schedule.
21. Decree be drawn up accordingly.
J U D G E