Patna High Court
Ganesh Sahi And Ors. vs Ramdeni Sahi And Ors. on 23 July, 1952
Equivalent citations: AIR1953PAT316, AIR 1953 PATNA 316
JUDGMENT Das, J.
1. These two second appeals have been heard together and will be governed by this judgment. The facts out of which these appeals arise are these. The plaintiffs, who are respondents before me, brought the suit for a declaration of title and confirmation of possession in respect of about 7 acres of land in village Tari. The case of the respondents was that they inherited the property as the nearest reversionary heirs of one Deoki Sahi, after the death of the latter's widow, Musammat Deorachala Kuer, in 1945. According to the respondents, one Kishun Sahi, the common ancestor, had seven sons. They separated some time before the cadastral survey and the branches of four of the sons became extinct. The three sons whose descendants are still living were Adhar Sahi, Darap Sahi and Raghubar Sahi. The present respondents and defendants 2 to 6 were descendants of the branch of Darap Sahi. Defendants 1, 7 and 8, who are the appellants in Second Appeal No. 1185 of 1951, are descendants of the branch of Adhar Sahi. Deoki Sahi was the last male holder in the branch of Raghubar Sahi. Deoki died leaving his widow Musammat Deorachala Kuer. Musammat Deorachala Kuer died in 1945. The respondents succeeded to the property, being the nearest reversioners of Deoki Sahi, the other descendants of the two surviving branches being lower in degree than the respondents. This, in brief, was the case of the respondents. The case of the appellants of Second Appeal No. 1185 of 1951 was that Kishun Sahi had only six sons and not seven. It was alleged that Adhar and Raghubar were not two different sons of Kishun but were two names of one son. The appellants, who belonged to the branch of Adhar, 'alias' Raghubar, said that they were the nearest heirs of Deoki Sahi, who belonged to their branch.
2. Another defendant, defendant No. 9, who intervened in the suit, claimed that she was the daughter of Deoki & was coming in possession of the properties left by the widow, who was her mother. The respondents alleged that defendant No. 9 was not the daughter of Deoki but she was the daughter of one Kali Sahi, father of defendant No. 1; in other words, she was the sister of defendant No. 1.
3. Two important questions fell for decision in the courts below. The first question was if Kishun Sahi had six sons or seven sons; that is, if Adhar and Raghubar were the two names of the same person. The other question was if defendant No. 9 was the daughter of Deoki Sahi. The learned Munsif, who dealt with the suit in the first instance, held that Adhar and Raghubar were one and the same person; therefore, the appellants of Second Appeal No. 1185 of 1951 belonged to the same branch as Deoki Sahi. He further found that defendant No. 9, Sheomangala Kuer. was the daughter of Deoki Sahi by his wife Musammat Deorachala Kuer. On these two main findings the learned Munsif dismissed the suit of the respondents. The learned Additional Subordinate Judge, who heard the appeal, reversed the findings of the learned Munsif. The learned Subordinate Judge held that after the extinction of the branches of four of the sons of Kishun Sahi, there remained three separate branches, namely, the branches of Adhar, Darap and Raghubar, each one of these being separate from the other. Therefore, the finding of the learned Subordinate Judge was that Adhar and Raghubar were two separate brothers and the respondents were the nearest heirs of Decki Sahi. The learned Subordinate Judge further held that Sheomangala Kuer was not the daughter of Deoki Sahi by his wife Musammat Deorachala Kuer; rather she was the daughter of Kali Sahi and sister of defendant No. 1. On these findings the learned Subordinate Judge gave a decree to the respondents.
4. I have already stated that Second Appeal No. 1185 of 1951 is preferred by defendants 1, 7 and 8. Sheomangala Kuer, defendant No. 9, has preferred the other appeal, namely, Second Appeal No. 1303 of 1951.
5. So far as the appeal of Sheomangala Kuer is concerned, it is clearly concluded by a finding of fact which is binding on me in second appeal. The learned Subordinate Judge has carefully considered the evidence on the question as to whether Sheomangala Kuer is the daughter of Deoki Sahi by his wife Musammat Deorachala Kuer. On a scrutiny of that evidence the learned Subordinate Judge has found that she is not the daughter of Deoki Sahi. It is clearly a finding of fact and it is not open to me to go behind that finding in a second appeal. Mr. Ganesh Sharma, appearing on behalf of the appellant in Second Appeal No. 1303 of 1951, has been unable to show that the finding of fact arrived at by the learned Subordinate Judge is vitiated in any way. Therefore, Second Appeal No. 1303 of 1951 is clearly without merit and must be dismissed with costs.
6. I now turn to Second Appeal No. 1185 of 1951, The principal question which has been agitated before me on behalf of the- appellants is that the finding of the learned Subordinate Judge on the question whether Adhar and Raghubar were two persons or not, has been vitiated by reason of the improper reception of evidence at the appellate stage, in violation of the provisions laid down in Order 41, Rule 27. Civil P. C. It appears that on 18-5-1951, the present respondents made an application for the reception of certain documents as additional evidence at the appellate stage. The learned Subordinate Judge considered this application which was opposed by the present apellants. The learned Subordinate Judge heard arguments in part on 17-5-1951, and on 23rd of May, after hearing arguments in full, passed the following order :
"The appellants have filed many documents to be taken in as additional evidence and have given reasons for their non-filing in the court below which is supported by an affidavit. The respondents have objected by filing rejoinders which have not been supported by any affidavit. After hearing the arguments of both the parties on the whole case and after considering the evidence which is already on the record to find out if a proper and conclusive judgment could be given without taking any of the documents filed by the appellants as additional evidence, I find that some of the documents are absolutely necessary to be taken in as additional evidence in order to give a complete judgment in this case. I, therefore, require those documents to be marked as exhibits in this case. These documents are mostly against the case of defendants 1, 7 and 8 who had not prayed before me that they had to file any rebutting evidence on that point nor they filed any rebutting evidence on the same. It is stated by the plaintiffs that they had no knowledge about some of the documents filed by them during the course of the trial in the court below. Considering these facts I only mark Register D, Register A, Khewat and Thakbast Khesra which are all public documents as Exts. 6(b), 6(c), 11, 12, 12(a) and 13. All these documents are required by me for pronouncing a proper and complete judgment in this case. These documents are unimpeachable and were not challenged as wrong by the respondents,"
Thereafter, he delivered judgment on 31-5-1951.
7. Sir Sultan Ahmad, appearing on behalf of the appellants in Second Appeal No. 1185 of 1951, has very strongly contended before me that the learned Subordinate Judge contravened the provisions of Order 41, Rule 27, Civil P. C., in admitting additional evidence at the appellate stage in the manner in which he admitted that evidence. Order 41, Rule 27, Civil P. C., as amended by this Court, is in these words "27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.
But if
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or
(c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
We are not concerned with Clause (a). The argument of learned Counsel for the appellants is that the statements made in the application which the present respondents filed for taking additional evidence sought to base the application on Clause (b) or Rule 27(1) rather than on Clause (c). Learned Counsel contends that Clause (b) does not apply notwithstanding the statements made in the application; because the present respondents failed to satisfy the appellate court that the additional evidence which they sought to adduce was not within their knowledge or could not be produced by them at the time when the decree was made. It is contended that instead of considering carefully the application of Clause (b) to the averments made by the present respondents, the learned Subordinate Judge fell back on Clause (c) and purported to admit the additional evidence under that clause. The argument of learned Counsel is that it was not open to the learned Subordinate Judge to do so.
8. I am not satisfied that the averments made in the application of 16-5-1951, necessarily fettered the discretion of the appellate court or restricted the application to Clause (b) only. The learned Subordinate Judge has very clearly explained in his order why additional evidence was allowed to be given in the present case. The learned Subordinate Judge heard the parties on the whole case and after examining the evidence already on the record found that he required certain documents in order to pronounce judgment. The learned Subordinate Judge explained that on the question of genealogy there were already on the record certain C. S. and R. S. Khewats of village Tari. By these Khewats it was sought to prove that the three branches of Adhar, Darap and Raghubar had 5 annas 4 pies share each. But the C. S. Khewats were not complete and there was a statement that some of the Khewats had been torn away and were not available. Therefore, the Khewats which were already on the record did not give a complete picture, though the R. S. Khewats tended to support the case of the present respondents. The learned Subordinate Judge noticed two other defects with regard to these Khewats : one defect was that there was no clear evidence to indicate that 16 annas proprietary interest in village Tari belonged exclusively to the descendants of Kishun, and the other defect was that the Khewats did not indicate clearly that Deoki's branch had one-third share separate from that of Adhar or that the share of Deoki had been purchased by one Ramsaran Sahi. In order to complete the picture, so as to enable him to pronounce judgment, the learned Subordinate Judge admitted four kinds of public documents as additional evidence, namely C. S. Khewats of two other villages, Kajrashan and Sadhpore, entries in register A, entries in register D and the Thakhast Khesra of 1846. The C. S. Khewats of the other two villages gave a complete picture of the position of this family; they showed that the three branches were separately recorded, each with 5 annas 4 pies interest. It is obvious that if Adhar and Raghubar were the names of the same person, there could not be three branches with 5 annas 4 pies share each. The entries in registers A and D also showed a similar state of affairs. With regard to the Thakhast Khesras, the contention before me has been that they were not reliable and some of the entries therein were against the case of the respondents. That, however, is a matter which is not one for the court of second appeal.
9. The question before me is if the learned Subordinate Judge was wrong in admitting additional evidence in the circumstances in which he admitted that evidence. In my opinion, the learned Subordinate Judge was entitled to admit additional evidence under Clause (c) of Order 41, Rule 27, Civil P. C., and the circumstances in which he admitted additional evidence in this case fulfil the requirements of Clause (c) of Order 41, Rule 27, Civil P. C. The scope and ambit of Order 41, Rule 27, Civil P. C., has been the subject of several decisions, including decisions of the highest courts, namely, the Privy Council and the Supreme Court of India. The two important decisions of the Privy Council are -- 'Parsotim Thakur v. Lal Mohar Thakur', AIR 1931 P. C. 143 (A) and -- 'Kossowji Issur v. G. I. P. Rly.', 34 Ind App, 115 (P C) (B) In --'AIR 1931 P. C. 143 ,(A) their Lordships observed :
"Turning to the provisions of Rule 27, Clause (1) (a) has no application in the present case. Under (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. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'. This is laid down in the most positive terms by Lord Robertson in -- '34 Ind. App. 115 at p. 122 (P. C.) (B)' ..... It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified."
It is worthy of note that Clause (b), to which their Lordships referred, is now Clause (c) after the amendment of Rule 27 by the Patna High Court. The same view is affirmed by the Supreme Court of India in -- 'Arjan Singh v. Kartar Singh', A. I. R. 1951 S C 193 (C). It is pointed out there that the legitimate occasion for the application of the rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. His Lordship Chandrase-khara Aiyar, J. explained the test as follows : "The true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.' As explained by their Lordships of the Privy Council, the word "requires" in Clause (c) means "finds it needful". The expression "to enable it to pronounce judgment" must, I think, mean to enable the court to deal satisfactorily and completely with the issues raised by the parties. If the evidence as it stands leaves some inherent lacuna or defect, it is open to the court to admit additional evidence even though the defect is pointed out by a party. In the case before me the inherent defect was that the Khewats of village Tari did not give a complete picture of the interest of the three branches of the family, because some of the Khewats were torn away and were not available. In view of this inherent defect, which was pointed out to the learned Subordinate Judge, he admitted additional evidence with regard to the interest of the family in two other villagers & for that purpose allowed C. S. Khewats and registers A and D of two other villages to be given in evidence, so as to enable him to pronounce judgment on the issue raised by the parties, namely, if Raghubar and Adhar were two persons or different names of the same person. In my opinion, the learned Subordinate Judge properly acted under Clause (c) and there has been no contravention of the provisions of Order 41, Rule 27, Code of Civil Procedure.
10. For these reasons I see no grounds for interference and Second Appeal No. 1135 of 1951 must also be dismissed with costs.
11. In the result, both the appeals fail and are dismissed with costs in favour of the plaintiffs respondents.