Chattisgarh High Court
Nageshwar Prasad Singh vs Durga Devi on 28 August, 2009
Author: T.P. Sharma
Bench: T.P. Sharma
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