Andhra HC (Pre-Telangana)
P. Narayana Reddy vs Bekkan Potha Reddy on 4 September, 1997
Equivalent citations: 1998 A I H C 2264, (1997) 6 ANDHLD 171, (1997) 5 ANDH LT 573, (1997) 3 APLJ 203
ORDER S.V. Maruthi, J.
1. These two Revision Petitions are disposed of by a common order as they arise out of the common order in I.A.No. 499/93 and I.A.No. 500/97 in A.S.No. 49/1992.
2. The defendant is the petitioner. The Plaintiff respondent filed a suit for declaration of title and perpetual prohibitory injunction restraining the defendant from interfering with his possession in an extent of Acs.1.55 cents out of Acs.3.08 cents in S.No. 556 of Balapalapalle village in Dhone Sub-District of Kurnool District. He claims to have purchased Ac.1.55 cents and two other extents in Survey Nos.482/3 and 482/2 of the same village aggregating to Acs.2.65 cents under Ex.A-1 registered sale deed dated 2-1-1985 from one Kanala Eswara Reddy (P.W.3). The present suit is filed on the ground that the defendant without any manner of right was disputing his title and was trying to interfere with his possession of the disputed extent while the defendant resisted the suit on the plea that he purchased the entire extent of Acs.3.08 cents in Survey No. 556 including the disputed extent from one M. Thimmaiah (D.W.2) under a registered sale deed dated 19-12-1989 and he has been in possession and enjoyment of the same throughout and that earlier it was in exclusive possession and enjoyment of D.W.2 M. Thimmaiah and the Plaintiff has no manner of right or title to the disputed extent. On the basis of the evidence adduced by both parties the trial Court decreed the suit. During the pendency of the trial the plaintiff filed registered copy of the sale deed dated 13-5-1941 purporting to have been executed by one Chinna Subbigadu and his son Maddigadu and another Maddigadu s/o Muddavaram Subbigadu in favour of Vunnam Naganna in respect of 1/4th share in Acs.6.94 cents in S.No. 480 and Acs.3.08 cents in S.No. 556 of Balapalapalle village and it was marked as Ex.A-3 on the side of the plaintiff. The plaintiff filed this document for the purpose of establishing that the defendant's father namely P.W.2 or his father had no title to the disputed extent or the entire land in S.No. 556. The defendant examined one Vannam Subbarayudu D.W.3 son of Vannam Naganna, Vendee under Ex.A-3 saledeed. The defendant further contended that D.W.2 the defendant's vendor is the grandson of Chinna Subbigadu who is one of the vendors under Ex.A-3 sale deed and that subsequent to A-3 sale deed D.W.2's father worked as farm servant under Vannam Naganna and ultimately in the year 1965 in consideration of the wages payable to D.W.2's father, the said Vannam Naganna sold away the entire extent of Acs.3.08 cents in S.No. 556 of the suit village to D.W.2's father and delivered possession of the same to him in the same year i.e. 1965. Further no registered sale deed was executed in 1965 or any other document was executed evidencing the transfer in favour of D.W.2's father. However, the trial Court without taking into account the plea of the defendant decreed the suit of the plaintiff. Therefore, he filed an appeal A.S.49/92 on the file of Addl. Dist. Judge, Kurnool. Pending disposal of the appeal he filed LA. No. 499/93 for amendment of the written statement under Order 6 Rule 17 and I.A.No. 500/93 to adduce additional evidence. Both the I.As. were allowed and appeal was also allowed by the appellate Court on 18-2-1994 and remanded the matter to the trial Court. Against I.A.No. 499/93 C.R.P. No. 1829/94 was filed and against I.A.No. 500/93 C.R.P. No. 1827/94 was filed. Against the judgment in A.S. No. 49/92 C.M.A. No. 665/94 was filed. The C.R.Ps. were allowed and consequently the C.M.A was also allowed and the matter was remanded to the Appellate Court directing it to dispose it of afresh after giving reasons. The appellate Court pursuant to the remand order dismissed I.A.Nos.499/93 and 500/93. Aggrieved by the same the present C.R.Ps are filed. I.A.No. 499/93 is filed under Order 6 Rule 17 seeking amendment of the written statement incorporating the pleas pertaining to additional evidence. I.A.No. 500/93 is filed under Order 41 Rule 27 CPC seeking permission of the Court to raise additional evidence. The additional evidence sought to be adduced are that the father of D.W.2 has no valid document in his favour executed by Vannam Naganna in respect of the entire extent of Acs.3.08 cents of Survey No. 556 as contemplated Under Section-43 of the Transfer of Property Act and also Under Section-113 of the Specific Relief Act, 1963 and therefore, it is a document which should be admitted as additional evidence. In addition he also sought for adducing additional evidence by filing survey sketches and the plaint plan, Ex.A-2, filed by the plaintiff is incorrect which would probablise that the plaintiff was never in possession of the disputed extent. Therefore, he sought permission to adduce additional evidence by filing sale deed dated 20-8-1993. But the learned Judge refused to admit additional evidence on the ground that it cannot be admitted as additional evidence, on the ground that Section 43 of the T.P. Act is not applicable to the said document. According to him, the said section would apply to such subsequent acquisition of title by the transferee by operation of law and not by transfer inter vivos and in case of transfer by inter vivos such transfer must be obtained by the earlier transferor himself and not by or at the instigation of transferee under an earlier transfer from the transferor in question. He also held that under Ex. A-3 dated 13-7-1941 Chinna Subbigadu and his son Maddigadu and Maddavaram Maddigadu i.e. co-parceners have sold only 1/4th share in Acs.3.08 cents in S.No. 556 which roughly works out to Ac.0.77 cents. If this is so, it is not clear as to how Vannam Naganna or his son Subbarayudu i.e. D.W.3 could convey entire Acs.3.08 cents in S.No. 556 to the father of D.W.2 Thimmaiah in 1965. He also observed that there is no evidence as to what happened to the remaining 3/4th share in S.No. 556 and in whose possession and enjoyment it was. D.W.2 and his father were not exclusive owners of entire extent of S.No. 556 and there were other coparceners or sharers and who among them enjoyed the remaining 3/4th share of the said S.No. 556 is also not clear. Having held as above he refused to admit the document as additional evidence. He also observed that the suit of the plaintiff is to be decided on the basis of the evidence adduced by him, substantiating his title to the property and therefore, the said document is not necessary to determine the title of the plaintiff and consequently he rejected the amendment of the written statement sought for by the defendant. He has not given separate reasons for refusing to amend the written statement.
3. The learned Counsel appearing on behalf of the petitioner relying on the judgment of the Supreme Court in Jote Singh v. Ram Das Mahto, AIR 1966 SC 2773 contended that the observation of the learned Judge that Section 43 of the Transfer of Property Act is not applicable to voluntary transfers is quite contrary to the dictum laid down by the Supreme Court. He contended that the Supreme Court held that Section 43 of the T.P.Act is not applicable to involuntary transfers like auction sales but they are applicable to voluntary transfers.
4. He also relied on Section 13 of the Specific Relief Act.
5. He further contended that under Order 41 Rule 27 CPC it is open to the parties to adduce additional evidence in an appeal and if the appellate Court required any document to be produced to enable it to pronounce the judgment or for any other substantial cause, it may allow such evidence or document to be produced. Therefore, he is entitled to adduce additional evidence by filing the sale deed dated 20-8-1993 executed in favour of D.W.2 Thimmaiah. He brought to my notice number of judgments in support of his contention that the Court can receive additional evidence if it requires it for any substantial cause. He further contended that Ex.A-3 is a document executed by the original owners Chinna Subbigadu and his son Maddigadu and another Maddigadu son of Muddavaram Subbigadu in favour of Vunnam Naganna on 13-5-1941 in respect of 1/4th share in Acs.6.94 cents in Survey No. 480 and Acs.3.08 cents in S.No. 556 of Balapalapalle village. However, one Vannam Subbarayudu examined as D.W.3 is the son of Vannam Naganna (Vendee under Ex.A-3) and D.W.2 M.Thimmaiah is the son of Chinna Subbigadu. After the execution of the sale deed D.W.2's father Chinna Subbigadu worked as farm servant under Vannam Naganna and in the year 1965 in consideration of the wages payable to Chinna Subbigadu the said Vannam Naganna sold away the entire extent of Acs.3.08 cents in S.No. 556 to Chinna Subbigadu and delivered possession of the same to him in the same year 1965. However, no registered sale deed was obtained. Therefore, the registered sale deed dated 20-8-1993 was executed by D.W.3 Vannam Subbarayudu, son of Vannam Naganna in favour of D.W.2 who conveyed the same to the Defendant. Therefore, in order to establish that Kanala Eswara Reddy who sold the property to the plaintiff, has no title and therefore, the plaintiff is not entitled for the relief this document is required to be admitted as additional evidence which is a substantial cause and therefore, the document should be received in evidence as additional evidence.
6. While the learned Counsel for the respondent contended that additional evidence may be admitted only if the Court required it for any substantial cause and otherwise the document cannot be admitted. In support of his contention he relied on number of judgments.
7. Before considering whether the document can be admitted as additional evidence, it is necessary to consider the finding of the learned Judge that Section 43 is not applicable to a transfer inter vivos. The Supreme Court in Jote Singh v. Ram Das Mahto (1 supra) considered the applicability of Sections 41 and 43 of the Transfer of Property Act to voluntary and involuntary transfers. The facts in brief are that Smt. Udwantia was the owner of the estate left by her husband Thakur Mahto. She gifted her property to Ramdas Mahto, her grandson through her daughter Ram Deiya in the presence of her daughter Ram Deiya. The grandson effected two sales and also suffered auction sale. The daughter filed a suit claiming that the mother has no right to gift away the property to her grandson as she was the only limited owner and therefore, sought for the return of he properties which are in the hands of Auction-purchaser. At the stage of Second Appeal the plaintiff died and her son Ramdas Mahto had succeeded to the property and it was contended that any defect in title to those sales stood rectified by Section 43 of the Transfer of Property Act. The argument was accepted by the High Court, in so far as the voluntary transfers are concerned, however rejected in so far as Court sale is concerned. The matter went up to the Supreme Court. Under these circumstances, it was held following the judgment in Alukminee Dabee v. Banee Madhub Chunkerbutty, (1879) ILR 4 Calcutta 677 that where a person sells property of which he is not the owner but of which he afterwards becomes the owner, he is bound to make good the sale to the purchaser out of his subsequently acquired interest and that the said doctrine does not apply to a sale when made by or through Court because of its very nature, it being involuntary from the sufferer's angle and that the section applies to voluntary sales and not to involuntary transfers.
8. Therefore, the learned Judge is not right in holding that Section 43 is not applicable to the transfer dated 20-8-1993 executed by D.W.3 in favour of D.W.2. Therefore, the said finding of the learned Judge is set aside and it is held that Section 43 of the T.P. Act is applicable to the Registered saledeed dated 20-8-1993 executed by D.W.3 in favour of D.W.2.
9. The next question that arises for consideration is whether it is a case where the Court requires the document for pronouncing judgment or for any substantial cause and therefore, it can receive the said document namely sale deed dated 20-8-1993 as additional evidence.
10. The earliest interpretation of Order 41 Rule 27 is made in the judgment of Calcutta High Court in Satis Chandra Bose v. Takurdas Mandal and Ors., 39 Indian Cases 886.2. The Court interpreted the section "substantial cause" and held that Rule 27 Order 41 CPC does not include a case where the only ground assigned is that the evidence already adduced by the aggrieved party is not satisfactory and sufficient.
11. The Privy Council in Parsotim v. Lal Mohar, AIR 1931 P.C 143 held that:
"Order 41 Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under Rule 27 Cl. (1) (b) it is only where, the appellate Court "requires it" (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. 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. "It may well be that the defect may be pointed out by a party or that a party may move the Court to apply (sic. supply) the defect, but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. --------------
The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case."
12. The Supreme Court in State of U.P. v. Manbodiwn Lal, AIR 19S7 SC 912 held that "It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties."
The Privy Council in Mohd.Akbar Khan v. Motai, AIR (35) 1948 P.C. 36 was of the view that:
"The power of an Appellate Court to admit further evidence under Order 41 Rule 27 (1) (b) is confined to cases in which the 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 power only arises where the court requires the further evidence for one of the two causes specified. An order under Rule 27 (1) (b) cannot be made to enable a party to fish out evidence in order to prove his case and make up the lacuna."
13. In Smt. Sarada and Ors. v. Manikoth Kombra Rajendran, 1996 (4) Supreme 382 = 1996 (2) ALT 26 (D.N.) it was held that the appellate Court should receive a document as additional evidence to render fair justice between the parties.
14. From the above it follows that the party should not be allowed to fill up the lacunae at the appellate stage. He should not be allowed to patch up the weak parts and fill up omissions in the Court of appeal. Under Order 41 Rule 27(1) (b) CPC if the Court requires a document or a witness to be examined, additional evidence can be admitted. It may be required to enable the Court to pronounce the judgment or it may be for any other substantial cause. In either case additional evidence can be admitted provided it is required by the Court. It is only on examining the evidence as it stands if the Court finds some inherent lacunae or defect becomes apparent. It may be pointed out by a party or that a party may move the Court to apply (sic. supply) the defect. The Court on appreciation of evidence (may) admit the additional evidence. However, it is the requirement of the Court and not the requirement of the party and the evidence sought to be adduced should have direct and important bearing on the main issue in the case. The Courts have repeatedly held that additional evidence cannot be admitted on the ground that the evidence already adduced by the aggrieved party is not satisfactory and sufficient.
15. The question, therefore, is; does the Court require in this case the registered sale deed executed on 20-8-1993.
16. The case of the plaintiff is that in 1965 this land was sold by Chinna Subbigadu and his son Maddigadu and Anr. Maddigadus/o Muddavaram Subbigadu 1/4th share in Acs.6.94 cents in S.No. 480 and Acs.3.08 cents in S.No. 556 under Ex. A-3 to one Vunnam Naganna. In other words, the property covered by S.No. 556 in an extent of Acs.3.08 cents was sold by the original owners Chinna Subbigadu and his son and another Maddigadu son of M. Subbigadu to Vunnam Naganna. While the case of the defendant is that his vendor D.W.2 is the grand-son of Chinna Subbigadu. His father, namely, Chinna Subbigadu worked as farm servant under Vunnam Naganna. Towards payment of dues to D.W.2's father, Vunnam Naganna sold the property in 1965 in favour of the father of D.W.2. On the death of his father, the property devolved on him.
17. From the above, it is clear that the plaintiff is not the direct purchaser from either Vunnam Naganna or his successor. He claims to have purchased it from one Kanala Eswara Reddy on 2-1-1985. From 1941 to 1985 the plaintiff has not established his case how the property was dealt with. It is not his case that the property continued to be in possession of Naganna and he sold it to Kanala Eswara Reddy. The purchase by Vunnam Naganna was in 1941. Since, the plaintiff has not produced any evidence as to how Kanala Eswara Reddy got the property from Vunnam Naganna this document is necessary to trace the title. It is quite possible to take a view that since the plaintiff has not traced the connection between K Eswara Reddy and Vunnam Naganna the plaintiff has to fail on merits of the case and therefore, it is not necessary . to allow the defendant to adduce additional evidence at this stage. However, the defendant has traced his title to Vunnam Naganna. As pointed out in the earlier paragraph the plaintiff says that property was sold to Vunnam Naganna by Chinna Subbigadu while the defendant says that Vunnam Naganna sold it to his vendor's father in consideration of the wages payable to him who worked with him as farm servant. In my view, this document is necessary as it has a direct and important bearing on the main issue namely whether the plaintiff has established his case. The document as pointed out has not only a bearing on the main issue but it is required to do fair justice between the parties. It is now well established as pointed out in the earlier paragraphs that if the Court requires certain evidence to be adduced in order to enable to do justice between the parties, it can permit the party to adduce additional evidence. It is not a case where the defendant is trying to fill up the gap or fish out evidence in order to prove his case and make up the lacuna. The plaintiff has not established his case as to how his vendor obtained title to the property from Vunnam Naganna. The plaintiff has not traced the title from 1941 to 1985. This document is necessary not only to pronounce judgment and adjudicate the rights of parties but also for the purpose of doing justice between the parties. It is a case where the Court though is able to pronounce judgment on the state of records as it is, and so it cannot be strictly said that it requires additional evidence to enable it to pronounce judgment, still in the interest of justice, this document is necessary to find out how the property was dealt with between 1941 and 1965. In this context the observation of the Supreme Court in K. Venkataramiah v. A. Seetharama Reddy and Ors., . are relevant. It was held:
"Under Rule 27(1) the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment", but also for any other substantial cause. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1) (b) of the Code." "Such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. 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."
In this case, in order to decide the issues that arise for consideration the document dated 20-8-1993 is relevant and has direct and important bearing and therefore, it should be allowed to be adduced as additional evidence.
18. In view of the above, it follows that the registered sale deed dated 20-8-1993 is required for the purpose of doing justice between the parties and, therefore, the petitioner is permitted to adduce additional evidence and the C.R.Ps are accordingly allowed. No costs.
19. As regards amendment of written statement, when once the petitioner is allowed to adduce additional evidence on the ground that the document is required by the Court to do justice between the parties and for pronouncing judgment there cannot be any objection for amendment of written statement. It is now well settled that amendment is not allowed if it changes the cause of action or raises new cause of action to the facts already on record (can be allowed). In this case, the receipt of the document as additional evidence only adds to the facts already on the record which does not constitute new cause of action and it does not also raise new issues. Therefore the amendment petition being automatic is allowed.
20. The observation of the learned Judge that the plaint schedule property is only Acs.1.55 cents and therefore, how the remaining extent out of Acs.3.08 cents of property is dealt with is a matter for consideration on merits and not necessary at this stage and are irrelevant. As regards the other documents namely survey sketches, the learned Judge is right in holding that the survey sketches cannot be admitted after holding discussions with the Counsel and it is to be established that he has exercised due diligence in spite of that he could not get these documents and the finding of the learned Judge to this extent is confirmed. Both the CRPs are allowed, No costs.