Madhya Pradesh High Court
Collector vs Jujhar S/O Pura Bagri Deceased Through ... on 17 April, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
SECOND APPEAL No. 229 of 2018
BETWEEN:-
COLLECTOR THROUGH COLLECTOR MANDSAUR
1.
(MADHYA PRADESH)
GARDEN INSPECTOR GOVT. HORTICULTURE
2. DEPARTMENT, GAROTH ROAD, SHAMGARH,
(MADHYA PRADESH)
.....APPELLANTS
(SHRI VAIBHAV BHAGWAT, GOVERNMENT ADVOCATE)
AND
JUJHAR S/O PURA BAGRI DECEASED THROUGH
LRS. SHYAMLAL S/O JUJHAR BAGRI, AGED ABOUT
1.
46 YEARS, OCCUPATION: LABOUR
SHAMGARH,MANDSAUR (MADHYA PRADESH)
JUJHAR S/O PURA BAGRI DECEASED THROUGH
LRS. GOVARDHAN S/O JUJHAR BAGRI, AGED
2.
ABOUT 41 YEARS, OCCUPATION: LABOUR
SHAMGARH, (MADHYA PRADESH)
JUJHAR S/O PURA BAGRI DECEASED THROUGH
LRS. KISHROE S/O JUJHAR BAGRI, AGED ABOUT
3.
39 YEARS, OCCUPATION: LABOUR SHAMGARH,
(MADHYA PRADESH)
JUJHAR S/O PURA BAGRI DECEASED THROUGH
4. LRS. KUSHALBAI D/O JUJHAR SHAMGARH,
(MADHYA PRADESH)
JUJHAR S/O PURA BAGRI DECEASED THROUGH
5. LRS. GUDDIBAI D/O JUJHAR OCCUPATION:
LABOUR SHAMGARH (MADHYA PRADESH)
6. JUJHAR S/O PURA BAGRI DECEASED THROUGH
LRS. GAYATRI BAI D/O PURA BAGRI SHAMGARH
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 4/19/2023
11:59:32 AM
-2-
(MADHYA PRADESH)
JUJHAR S/O PURA BAGRI DECEASED THROUGH
LRS. MANGILAL S/O PURA BAGRI, AGED ABOUT 60
7.
YEARS, OCCUPATION: LABOUR SHAMGARH
(MADHYA PRADESH)
KAILASH S/O BHUWAN BAGRI, DECEASED
THROUGH LRS GUDDIBAI W/O KAILASH
8.
OCCUPATION: LABOUR SHAMGARH (MADHYA
PRADESH)
KAILASH S/O BHUWAN BAGRI, DECEASED
THROUGH LRS KISHAN (MINOR) THROUGH U/G
9.
GUDDIBAI S/O KAILASH BAGRI SHAMGARH
(MADHYA PRADESH)
KAILASH S/O BHUWAN BAGRI, DECEASED
THROUGH LRSVISHNU (MINOR) THROUGH U/G
10.
GUDDIBAI S/O BHUWAN BAGRI OCCUPATION:
LABOUR SHAMGARH (MADHYA PRADESH)
KAILASH S/O BHUWAN BAGRI, DECEASED
THROUGH LR BABULAL S/O BHUWAN BAGRI
11.
OCCUPATION: LABOUR SHAMGARH (MADHYA
PRADESH)
KAILASH S/O BHUWAN BAGRI, DECEASED
12. THROUGH LR JAMNABAI W/O BHUWAN BAGRI
SHAMGARH (MADHYA PRADESH)
RAMESHCHANDRA S/O BHUWAN BAGRI ,
DECEASED THROUGH LRS RAJU @ KARAN S/O
13.
LATE RAMCHANDRA BAGRI, AGED ABOUT 20
YEARS, SHAMGARH (MADHYA PRADESH)
RAMESHCHANDRA S/O BHUWAN BAGRI ,
DECEASED THROUGH LRS SURESH @ ARJUN S/O
14.
LATE RAMCHANDRA BAGRI, AGED ABOUT 20
YEARS, SHAMGARH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VEER KUMAR JAIN, LEARNED SENIOR ADVOCATE WITH SHRI
AKSHAT PAHADIA, ADVOCATE FOR THE RESPONDENT NO.1)
HEARD ON : 11.04.2023
PRONOUNCED ON : 17.04.2023
This second appeal coming on for hearing this day, the court passed the
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 4/19/2023
11:59:32 AM
-3-
following:
JUDGMENT
The State of M.P. & another have filed this second appeal against the judgment dated 29.07.2016 passed by Civil Judge, Class-I Garoth, District Mandsaur whereby the suit filed by the respondents/plaintiffs has been decreed and also against the judgment dated 09.11.2017 whereby RCA no.3-A/2017 has been dismissed by Additional District Judge, Bhanpura Link Court Garoth District Mandsaur.
The facts of the case in short are as under:-
2. The respondents/plaintiffs have filed a suit for declaration and permanent injunction in respect of agricultural land bearing survey no.619/1476 admeasuring 1.079 Hectare situated in village Shamgarh Tehsil Garoth District Mandsaur ("hereinafter referred to as the suit land").
According to the respondents/plaintiffs, this suit land was recorded in the name of their forefathers in the revenue record from 1958-1959. After their death, they are in the possession and cultivating the suit land. In the year 2013 family partition took place and this suit land came into the share of the family of plaintiffs. They applied demarcation of the suit land before Tehsildar. When the demarcation was not carried out, a complaint was made to the Collector in Jansunwai. The Collector vide order dated 03/02/2014 directed the Tehsildar and Revenue Inspector to carry out the demarcation. During the demarcation respondents/plaintiffs came to know that the Horticulture Department of the Government of M.P. is in illegal possession of the suit land by constructing two rooms illegally. The Revenue Inspector did not hand over the possession to the respondents/plaintiffs and thereafter the Tehsildar dismissed their Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -4- application. Hence, the respondents/plaintiffs filed the suit for taking possession of the suit land.
3. The appellants/defendants filed the written statement by submitting that they have established the nursery on land bearing survey Nos.618 & 619 allotted to them by the Government. The suit land bearing survey No.619/1476 belongs to the respondents/plaintiffs and they are not in possession of the same. On the basis of the evidence that came on record, the learned Civil Judge has decreed the suit in favour of the respondents/plaintiffs by declaring ownership of the suit land and directing the defendants to remove the construction and hand over the vacant possession to the plaintiffs.
4. Being aggrieved by the aforesaid judgment and decree the appellants/defendants filed the first appeal before the District Judge.
5. During the pendency of the appeal the appellants/defendants came to know that they had purchased the suit land from Pura Bagri (father of the plaintiffs) by way of registered sale deed No.398 dated 14.01.1956 which was executed on 21.01.1957 in consideration Rs.350/-. The Collector granted the sanction for the purchase of the suit land in Rs.350/- vide letter dated 12.11.1956 and directed the Tehsildar, Garoth to get the sale deed registered. The amount of Rs.350/- was paid to Pura Baagri on 21.01.1957, thereafter, the possession was taken and the case was closed. The appellants/defendants filed all these documents and copy of the registered sale deed along with an application under Order 41 Rule 27 of the Civil Procedure Code. According to the defendants these documents are important documents for the adjudication of the First Appeal and despite due diligence could not be procured while contesting the suit on merit.
Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -5-6. It was submitted before the appellate court that the defendant/ department is the absolute owner of the suit land on which the plaintiffs have no title. These documents are liable to be considered together with Exhibit-P/10. The application was opposed by the plaintiffs. The learned Additional District Judge dismissed the application filed under Order 41 Rule 27 of the CPC that these documents were in existence during the pendency of the suit but were not filed alongwith the written statement for which no valid explanation has been given. The learned appellate court has dismissed the First Appeal also on merit. Hence this Second Appeal before this High Court.
7. Vide order dated 14.02.2018, this Court directed the parties to maintain the status quo in respect of suit property. Thereafter, vide order dated 07.09.2018, the appeal was admitted on the sole substantial question which is reproduced below:-
"(i) Whether I.A.No.593/2018 filed by appellant under Order 41 Rule 27 of the CPC deserves to be allowed and matter is required to be remanded back to the trial Court for deciding the issue of title after considering the sale deed enclosed therewith read with Ex.P/10?"
8. On 05.01.2023, the Government Advocate was not ready to argue the matter and repeated adjournments were being sought since 2018, therefore, the interim order dated 14.02.2018 was withdrawn but later on 07.02.2018 status quo has been granted but by that time the possession of the suit land and two rooms had been handed over to the plaintiffs.
9. Shri Bhagwat, learned Government Advocate appearing on behalf of the appellants/State submitted that Exhibit-P/10 and P/11 clearly reveal Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -6- that the old survey no.186 was renumbered as survey no. 619/1476. The suit land bearing old survey no.186 was sold by the owner late Poora Bagri to the Horticulture Department of the State Government in order to establish the nursery and the office. The amount of Rs.350/- was paid but inadvertently all these documents especially copy of the registered sale deeds could not have been filed in the suit. Therefore, the State Government got defeated in the suit but the moment these documents came to their knowledge immediately they were filed before the First Appellate Court and the First Appellate Court erred in rejecting the application for taking these material documents on record. In support of his contention, he has placed reliance on the latest judgment passed by the Apex Court in the case of Sanjay Kumar Singh Vs. The State of Jharkhand (Civil Appeal No.1760 of 2022 decided on 10.03.2022).
10. Shri V.K. Jain, learned senior counsel appearing on behalf of the respondents/plaintiffs contended that the learned Appellate Court has not committed any error in rejecting the application filed under Order 41 Rule 27 of Civil Procedure Code as no valid explanation was given by the appellants/defendants to the effect that despite the exercise of due diligence they could not be able to produce the documents before the Court or at the time when the decree appealed was passed. It is further submitted that the sale transaction is said to have taken place on 21/01/1957 whereas Poora Bagri expired on 02.10.1955, therefore the sale deed itself is doubtful. There is a difference in Survey number of the suit land in the sale deed as well as in the revenue record. Shri Jain learned senior advocate further submitted that even if these documents are taken on record there are no pleadings in respect of these documents in the written Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -7- statement . No application under Order 6 Rule 17 of the CPC was filed seeking amendment in the written statement, therefore for taking the documents would be a futile exercise. Hence, no interference is called for and the appeal is liable to be dismissed.
11. In support of his contention Shri Jain learned senior advocate has placed reliance on the judgment passed by the Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148. He also placed reliance on the case Yashoda Devi and another Vs. Kanhaiyalal, (2010) 4 MPLJ 495 and Nirod Baran Banerjee Vs. Dy. Commissioner of Hazaribagh AIR 1980 SC 1109.
Appreciations & Conclusion
12. The documents which have been filed along with an application under Order 41 Rule 27 of the CPC prima facie reveal that the father of the plaintiffs : late Poora Bagri sold the suit land to the State Government and before executing the sale deed the permission was obtained from the Collector. The amount of Rs.350/- was withdrawn from the treasury and paid to late Poora Bagri who signed the receipt. This Court has framed the question of law that whether the matter is required to be remanded back to the trial Court for deciding the issue of title after considering the sale deed read with Exhibit P/10. If the defendants are able to establish these documents by way of evidence then certainty the respondents/plaintiffs would not have any case and the possession of the appellants/defendants would be justified.
13. After considering all longstanding judgments, the Apex Court in the recent judgment Sanjay Kumar Singh (supra) has considered the scope of Order 41 Rule 27 of the CPC and held that the High Court must see that Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -8- the relevant consideration is whether the additional evidence sought to be adduced would have a direct bearing on the pronouncing of the judgment or for any other substantial cause. However, at the same time even after permitting to adduce the additional evidence the party has to prove the existence, authenticity and genuineness of the documents including its content.
Paras 4 & 5 of the judgment are reproduced below:-
"4. 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 pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -9- the materials before it without taking into consideration the additional evidence sought to be adduced.
5. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the application for additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed hereinabove, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court."
14. In view of the aforesaid case law, the learned Additional District Judge has erred in dismissing the application filed under Order 41 Rule 27 of the CPC, this application deserves to be allowed and the matter is liable to be remanded back to the trial Court.
15. Admittedly, the appellants/State was in possession by constructing the two rooms to carry out the activity of the nursery. During the pendency of the appeal, there was an injunction and during the pendency of the second appeal also there was an injunction from 2018 till 05.01.2023. Shri Bhagwat, Government Advocate submitted that all the office materials, furniture and documents are still lying in the rooms, therefore the plaintiffs be directed to hand over possession so that the office activities can be restarted.
Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM -10-This Second Appeal is hereby allowed with the following directions/ reliefs:-
A. The application filed under Order 41 Rule 27 Civil Procedure Code is allowed and the additional documents are taken on record of the civil suit.
B. The judgment dated 29.07.2016 passed by Civil Judge, Class-I Garoth, District Mandsaur is set aside. Consequently, the judgment dated 09.11.2017 passed by Additional District Judge, Bhanpura Link Court Garoth District Mandsaur is also set aside and the matter is remitted back to the civil Court to decide the suit afresh for taking these documents on record.
C. The appellants/defendants shall have the liberty to amend the written statement in order to make the pleading in respect of these documents. The plaintiffs also shall have the liberty to amend the plaint.
D. Since the judgment and decree in favour of the plaintiffs have been set aside and the matter has been remitted back therefore the respondents/plaintiffs have no right to retain the possession hence they are directed to hand over the possession of the suit land and rooms to the appellants/defendants forthwith. The plaintiffs shall be entitled to the cost of Rs. 10,000.00 ( in words: Rupees Ten Thousand only ).
(VIVEK RUSIA) JUDGE vs Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 11:59:32 AM