Rajasthan High Court - Jaipur
Mukesh S/O Late Ramlakhan vs Sarpanch (2023:Rj-Jp:15067) on 24 July, 2023
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:15067]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 28/2020
1. Mukesh S/o Late Ramlakhan, Aged About 54 Years, R/o
Village Dhormui, District Bharatpur (Raj.).
2. Sohan Lal S/o Late Ramlakhan, Aged About 44 Years, R/o
Village Dhormui, District Bharatpur (Raj.).
3. Digamber S/o Late Ramlakhan, Aged About 39 Years, R/o
Village Dhormui, District Bharatpur (Raj.).
4. Hemant S/o Late Ramlakhan, Aged About 36 Years, R/o
Village Dhormui, District Bharatpur (Raj.).
----Appellants/Plaintiffs
Versus
Sarpanch, Gram Panchayat, Bilothi, Through Sarpanch, Gram
Panchayat, Bilothi, Tehsil And District Bharatpur.
----Respondent/Defendant
For Appellant(s) : Mr. Dileep Singh Jadaun
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
24/07/2023
This civil second appeal has been preferred against the judgement and decree dated 15.10.2019 passed by the learned Additional District Judge No.1, Bharatpur (for brevity, "the learned appellate Court") in Regular Civil Appeal No.42/2019 (CIS No.21/2019) whereby, while dismissing the appeal preferred by the appellants/plaintiffs (for brevity, "the plaintiffs"), the judgement and decree dated 19.01.2019 passed by the learned Civil Judge, Bharatpur (for brevity, "the learned trial Court") dismissing the Original Suit No.165/2015 (Computer Registration No.147/2015) for permanent injunction, have been affirmed. (Downloaded on 11/11/2023 at 06:32:24 PM)
[2023:RJ-JP:15067] (2 of 10) [CSA-28/2020] The relevant facts in brief are that the plaintiffs filed a suit for permanent injunction against the respondent/defendant stating therein that they purchased the subject plot measuring 0.032 hectare, a part of Khasra No.48 recorded in the Khatedari of Gram Panchayat Bilothi, in an open auction dated 15.06.1991 with highest bid of Rs.3,000/- and obtained its possession. It was averred that taking undue advantage of its entry in the jamabandi still in the name of Gram Panchayat Bilothi, the defendant has threatened them of dispossession. Therefore, the decree as aforesaid was prayed for.
The defendant in its written statement, denying the averments made in the plaint, submitted that the land of Khasra No.48 was recorded in its khatedari and was under its possession. It was averred that the subject property was never put to auction and the documents submitted by the plaintiffs were forged and fabricated. Dismissal of the suit, therefore, was prayed for.
On the basis of pleadings of the parties, the learned trial Court framed five issues including relief. The issue no.1 was as to whether the plaintiffs have purchased the subject property as described in para no.2 of the plaint in auction dated 15.06.1991 with highest bid. The issue no.2 was to the effect as to whether the plaintiffs were in lawful possession of the subject property and were entitled to the decree of permanent injunction. After recording evidence of the respective parties, the learned trial Court decided the issues no.1 & 2 against the plaintiffs and dismissed the suit vide judgement and decree dated 19.01.2019. The civil first appeal preferred thereagainst by the plaintiffs has (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (3 of 10) [CSA-28/2020] also been dismissed by the learned appellate Court vide judgement and decree dated 15.10.2019.
Assailing the impugned judgement and decree, learned counsel for the plaintiffs submits that since, while dismissing the first appeal, the learned appellate Court did not consider an application filed by them under Order 41 Rule 27 CPC, the matter may be remanded back to the learned appellate court for deciding it afresh taking into consideration the application filed by them. He submits that from the documents already on record alongwith the documents submitted by them with the application, it was apparent that his father had purchased the subject property in the auction conducted by the defendant on 15.06.1991 making highest bid and since then, they have been in possession of the subject property. Referring to the reply dated 26.02.2019 furnished by the defendant Gram Panchayat Bilothi under Right to Information Act, 2005, a part of the documents submitted alongwith the application under Order 41 Rule 27 CPC, he submits that since, no record of the auction proceedings dated 15.06.1991 was available with the defendant, there was no occasion for them to have produced the same, and therefore, the learned trial Court erred in drawing an adverse inference against them for not producing the certified copy of the record of the auction proceedings. He further submits that the learned courts erred in failing to appreciate that in a suit for permanent injunction, the question of title was irrelevant. Learned counsel submits that the learned Courts erred in dismissing their suit ignoring the admission made by the defendant of their possession over the subject property. He, therefore, prays that the civil second appeal (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (4 of 10) [CSA-28/2020] be allowed, the judgement and decree dated 15.10.2019 be quashed and set aside and the suit filed by them be decreed. He, in support of his submissions, relies upon following judgements:-
(1) 2004 DNJ Supreme Court 263: Rame Gowda (D) by LRs Vs. M. Varadappa Naidu (D) by LRs & Anr.
(2) 2007-08 DNJ Supreme Court Supplementary 64: Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors.
Heard. Considered.
The learned trial Court has dismissed the suit filed by the plaintiffs holding that in support of their claim of ownership over the subject property, the plaintiffs have produced only a receipt dated 15.06.1991 (Ex. 4) which reflects that Gram Panchayat has received a sum of Rs.3,000/- towards the auction price which was not even proved fully. It was further held that neither the Gram Panchayat issued any sale certificate nor executed any sale deed in their favour. It has also been held that after the alleged auction conducted by the defendant in the year 1991, till filing of the suit in the year 2015, i.e., for a period about 24 years, the plaintiffs sat idle and did not take any step for obtaining the lease deed of the subject property in their favour. The learned trial Court observed that as per the jamabandi (Ex. 3) produced by the plaintiffs themselves, it was apparent that the subject land was still recorded in the khatedari of defendant-Gram Panchayat. Recording a categorical finding that the plaintiffs could neither establish their ownership nor possession over the subject property, the suit filed by them was dismissed. Although, learned counsel for the plaintiffs has argued that ignoring the admission made by the defendant of their possession over the subject (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (5 of 10) [CSA-28/2020] property, their suit for permanent injunction has been dismissed; but, despite repeated requests of this Court, the learned counsel could not point out from the evidence on record any such admission by the defendant. This Court has also examined the material on record including the written statement filed by the defendant and deposition of Shri Bahadur Singh (DW-1); but, does not find any admission therein about possession of the plaintiffs over the subject property; rather, a suggestion made by the learned counsel for the plaintiffs to the DW-1 during his cross examination about their possession over the subject land was categorically denied. The learned counsel for the plaintiffs could not demonstrate that the concurrent findings of facts recorded by the learned appellate Court as also by the learned trial Court suffer from any illegality, infirmity, perversity or jurisdictional error so as to warrant interference of this Court under Section 100 CPC.
Insofar as submission of learned counsel with regard to non- consideration of their application under Order 41 Rule 27 CPC is concerned, it is true that the learned first appellate Court did not consider it while dismissing the appeal; however, after consideration of the application and the documents appended therewith, this Court is not satisfied that its non-consideration has caused any prejudice to the plaintiffs. The plaintiffs have submitted four documents alongwith the application. The first document is the death certificate of their father. Even if it is considered, it does not affect merits of the case as discussed hereinabove. Out of remaining three documents, two letters have been issued by the defendant Gram Panchayat Bilothi and one by the Panchayat Samiti Sewar wherein, it is stated that the (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (6 of 10) [CSA-28/2020] information/documents sought by the plaintiffs under the Act of 2005 pertaining to record of auction proceedings dated 15.06.1991 and the auction notice dated 12.05.1991 were unavailable in the record of Gram Panchayat. This Court fails to understand as to how these letters are of any help to the plaintiffs' case; rather, it establishes the case of the defendant that no auction proceeding dated 15.6.1991 was ever conducted by it. Even otherwise also, to establish their title and lawful possession over the suit property, the plaintiffs have relied only upon a receipt (Ex.4) issued by the defendant evidencing receipt of a sum of Rs.3,000 towards auction price from the plaintiffs' father. It is well settled legal principle that mere receipt of the bid amount is not indicative of the conferment of title on the highest bidder of the auction property in absence of its confirmation by the competent authority, its communication to the highest bidder and resultant issuance of sale certificate/lease deed/execution of sale deed. Indisputably, in the present case, no such action was taken by the defendant in favour of plaintiffs nor, as admitted by the plaintiffs themselves, they took any step in this regard. Rather, the documents appended with the application filed by the plaintiffs under Order 41 Rule 27 CPC lend support to the defence of the defendant that no auction proceeding was carried on 15.6.1991 as claimed by the plaintiffs. In the abovementioned circumstances, this Court is satisfied that non-consideration of the application filed by the plaintiffs under Order 41 Rule 27 CPC by the learned first appellate Court is of no avail to them. Even otherwise also, a perusal of the application does not reveal a whisper of averment therein as to why the documents appended (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (7 of 10) [CSA-28/2020] therewith were not submitted by them before the learned trial court or as to why the information under the Act of 2005 about the auction proceeding was not sought from the defendant in time. It is trite law that the provisions of Order 41 Rule 27 CPC cannot be resorted to fill in the lacunae in the evidence. A coordinate bench of this Court has, in the case of Banshi Lal vs. Champa Lal-MANU/RH/1686/2019, held as under:
"29. While adverting to the second application of appellant under Order 41 Rule 27 CPC, suffice it to observe that a bare reading of Rule 27 of Order 41 CPC makes it abundantly clear that parties to an appeal are not entitled to produce additional evidence but for satisfying the requirements envisaged under various clauses of sub-rule (1). The requirement of law is that an appellant/respondent seeking permission to produce additional evidence must plead that the requisite evidence could not be produced by him even after exercise of due diligence at the time decree was passed. The averments made in the second application under Order 41 Rule 27 CPC laid by the appellant are conspicuously silent about the requirements envisaged under various clauses of sub-rule (1) of Rule 27 of Order 41 CPC.
30. Therefore, even if this sort of omission is apparent from the impugned judgment of the learned lower appellate Court, I am afraid, no prejudice has been caused to the appellant. It is further reiterated that provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up omission in the court of appeal. By no stretch of imagination, the said provisions authorize any lacunae or gaps in the evidence to be filled-up. The ratio decidendi in the judgments referred to by the learned counsel for the appellant cannot be disputed but in the backdrop of facts and circumstances of the case and lis involved in the matter, both the judgments cannot render any assistance to the cause of the appellant. The object of the appellant in contesting the matter is per se lackadaisical inasmuch no material facts were pleaded in response to the counter-claim, nor requisite evidence was produced before teamed trial Court. Before the learned appellate Court at the behest of appellant though endeavour was made twice for taking additional evidence on record but it was too late in the day and further that (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (8 of 10) [CSA-28/2020] attempt per se lacked legal foothold for want of proper factual foundation.
31. As a matter of fact, the first application of the appellant was allowed and the prayer made in second application could have, been pressed into service at the time of laying first application. In overall fact scenario, looking to the averments made in second application under Order 41 Rule 27 CPC and its presentation before learned lower appellate Court after inordinate delay is sufficient to repudiate the same and no indulgence can be granted to the appellant for its non disposal. Moreover application under Order 11 Rule 14 CPC too is vague and cryptic and not in accordance with law, therefore, omission by the learned lower appellate Court to decide the same cannot render any assistance to the cause of the appellant I am firmly of the view that on these counts no substantial question of law has emerged in the factual backdrop of the instant matter. It is quite perplexing that even before this Court the appellant has laid yet another application under Order 41 Rule 27 CPC for taking certain documents on record, which relate back to years 1991, 1996, 1998, 2000, 2007 to 2012 respectively. A litigant cannot be allowed to improve its case or authenticate the defence with new material at every higher stage of judicial hierarchy with impunity and that too without proper factual foundation. In the application, no cogent and satisfactory reason is furnished by the appellant for belated presentation of these documents, therefore, it is a clear case of an attitude of litigious perseverance by the appellant which in the peculiar facts and circumstances of the case cannot be countenanced. Therefore, the application is hereby thwarted."
The Hon'ble High Court of Madhya Pradesh has, in the case of Ramgopal Kanhaiyalal vs. Firm Dinanath Gyasilal- MANU/MP/1076/2005, held as under:
"Shri N.K. Jain, learned senior counsel relying on Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board reported as : (1999) 6 SCC 44 submitted that since the application under Order 41, Rule 27, Code of Civil Procedure was not disposed of by the lower Appellate Court, the matter is liable to be remanded back. In case of Sangamesh Printing Press (supra) an application under Order 1, Rule 10(2) of Code of Civil Procedure was pending for joinder of State Government as a defendant. Hon'ble Supreme Court of India has observed that the consideration of the factors would depend upon allowing or rejecting the applications. In (Downloaded on 11/11/2023 at 06:32:24 PM) [2023:RJ-JP:15067] (9 of 10) [CSA-28/2020] view of this, it was held that non-disposal of the application under Order 1, Rule 10(2), Code of Civil Procedure did cause serious prejudice. In the present case, the application concerned is application under Order 41, Rule 27, Code of Civil Procedure. This provision provides for allowing additional evidence at an appellate stage provided the pre-requisites of the provisions are available. Even according to the case of Sangamesh Printing Press (supra) a person aggrieved by the non-disposal of a pending appeal by the lower Appellate Court is obliged to show that such non- disposal did cause prejudice to him. Unless such prejudice is established, mere non-disposal of an application by the lower Appellate Court will not afford a ground for making remand, although, it is not clear from the record whether the application under Order 41, Rule 27 was infact pressed or not. The lower Appellate Court has also not chosen to make a mention that the said application was not pressed at all. So, I feel it proper to consider whether the act of lower Appellate Court of not disposing of the application under Order 41, Rule 27, Code of Civil Procedure has caused prejudice to the Appellant and what is the degree of such prejudice. The Appellant vide the proposed document has submitted a certificate issued by the District Registrar of Births and Deaths, Gwalior that after the search of record of registration dated 8-8-1973, it is found that the death of Vinod Kumar Garg s/o Ramkishan Garg is not registered. The death of Vinod Kumar Garg is stated to have occurred according to the plaintiff is on 8-8-1973 whereas this date of death has been refuted by the defendant/appellant. As per the stand of the defendant/appellant, the death of Vinod Kumar has occurred in the year 1975. I considered the certificate with a caption of "non-availability certificate". This certificate, at the face of it shows merely that the entry of death of Vinod Kumar is not found to have been registered in the record of Office of District Registrar, Births and Deaths and District Statistical Officer, Gwalior. This document by itself will not help the Appellant to prove that the death of Vinod Kumar has occurred in the year 1975 because Sub-section (2) of the Section 17 of the said Act merely says that such a document shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates. Considering this provision, it cannot be said in the light of this document that death of Vinod Kumar did not occur in the year 1973 at all. Accordingly, the non-consideration of application under Order 41, Rule 27, Code of Civil Procedure did not cause any prejudice to the Appellant and the substantial question of law No. 1 is decided against the Appellants."(Downloaded on 11/11/2023 at 06:32:24 PM)
[2023:RJ-JP:15067] (10 of 10) [CSA-28/2020] In view of aforesaid factual and legal backdrop, this Court is not inclined to remand the matter to the learned first appellate court to decide the matter afresh taking into consideration the application filed under Order 41 Rule 27 CPC as its non- consideration has caused no prejudice to the plaintiffs.
Although, this Court is in respectful agreement with the law laid down by the Hon'ble Apex Court in Rame Gowda (supra) and Anathula Sudhakar (supra); but, the same has no applicability in the present case. Since, the plaintiffs have failed to establish their possession over the subject property, they have rightly been declined the decree of permanent injunction. There is one more important aspect of the matter. Since, there was a serious cloud over the title of the plaintiffs qua the subject property, in view of judgement of the Hon'ble Supreme Court in the case of Anathula Sudhakar (supra), the suit simplicitor for permanent injunction in absence of a relief of declaration was not maintainable.
Since, the civil second appeal is devoid of any substantial question of law, the same is dismissed with cost throughout.
(MAHENDAR KUMAR GOYAL),J PRAGATI/74 (Downloaded on 11/11/2023 at 06:32:24 PM) Powered by TCPDF (www.tcpdf.org)