Jammu & Kashmir High Court
Omkar Singh And Another vs State Of Haryana on 23 July, 2020
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CSA No.01/2013
IA No.01/2013
CM No. 3184/2020
CM No. 3222/2020
CM No. 3224/2020
Reserved on : 16.07.2020
Pronounced on : 23.07.2020
Omkar Singh and another ... Appellant(s)
Through: Mr. G. S. Thakur, Advocate.
v
Rajinder Singh ... Respondents(s)
Through: - Mr. Paviter Singh Bhardwaj, Advocate.
CORAM: Hon'ble Mr Justice Vinod Chatterji Koul, Judge
JUDGMENT
1. This is a civil 2nd appeal filed by the appellants (defendants) against the concurrent judgment and decree of the 1 st Appellate Court dated 16.11.2012 and the judgment and decree of the trial court dated 31.05.2007 whereby the respondent-plaintiff‟s suit has been allowed and decreed. This appeal happens to have been admitted to hearing by the Court on 09.02.2015 read with order dated 17.06.2020 on the following two substantial questions of law raised by the appellants in the memorandum of appeal:
a) Whether it was not necessary for the trial court to frame an issue with respect to the specific averments of the appellants herein in the written statement that 2 CSA No. 1/2013 the respondent herein had waived, relinquished and forfeited the service of notice as required under right of prior purchase act having permitted the defendant no.2 to sell the land and as such his suit was not maintainable?
b) Whether while applying the law laid down by the apex court AIR 1986 SC 859 and the judgment of this Hon‟ble Court, the trial court as well as the first appellant court have committed a legal error in allowing the respondents claim of right of prior purchase despite the clear evidence on record that the appellant no.2 herein was in exclusive possession of the suit land by virtue of a family partition which had taken place since the time of his forefathers?"
2. I heard learned counsel for the parties, perused the records and considered the matter.
3. The respondent (plaintiff) filed a civil suit for possession of land measuring 08 Marlas, comprising Survey no.1302/287, situated at village Barwal, Tehsil and District Kathua, on the basis of right of prior purchase thereto, sale whereof had been made by appellant no.2 vide sale deed dated 09.12.2002 in favour of appellant no.1. The respondent claimed and asserted right of prior purchase vis-a-vis the land in question on the ground that he and his brothers and appellant no.2 are owners and co-sharers of land measuring 1 Kanal comprising Survey no.1302/287 which included the suit land and that this position was reflected in the Jamabandi of the year 1968-69 and Girdawari for Kharief 2002. The respondent in this regard, in para 1 of his plaint, averred as under:3 CSA No. 1/2013
"1. That the plaintiff alongwith his brothers and the defendant no.2 are owners, co-sharers in land measuring 1 Kanal (16 marlas Warhal Awal and 4 marlas Aar Banna), comprising survey No.1302/287 situated in village Barwal, Tehsil and District Kathua, holding and possessing the same in equal shares and that they have been so reflected in the revenue record, which is evident from the copy of Jamabandi for the year 1968-69, copy of Khasra Girdawari for the year Kharif-2002 and pedigree table attached."
It was further pleaded by the respondent in the suit that appellant no.2, Chaggar Singh, without issuing any notice to him, made sale of 08 marlas out of the aforesaid land in favour of appellant no.1, who was a stranger - neither a co-sharer in the land, nor owner in the Mahal, for a sale consideration of Rs.16,000/-, and that to this effect a sale deed was executed by appellant no.2 in favour of appellant no.1 on 09.12.2002 which was registered by Sub-Registrar, Kathua on the same day. Consequent upon the sale, it was averred that appellant no.2 had delivered possession of the land in question to appellant no.1. It was further averred in the suit that the respondent had asked the appellants to admit his right of prior purchase and further asked appellant no.1 to hand over possession of the suit land to him on the basis of such right, but his requests in this regard were not acceded to. Hence the suit.
4. The appellants filed their separate written statements. Appellant no.1 in his written statement denied para no.1 of the plaint as being absolutely false and incorrect. The said appellant further averred that under Section 18 of the Right to Prior Purchase Act it was not 4 CSA No. 1/2013 necessary to give notice of sale and purchase. However, it was averred that appellant no.2 had verbally informed the respondent about the sale of the land in favour of appellant no.1, and that the respondent and other share holders had authorised him that he could carry out the sale of the land.
5. Appellant no.2 in his written statement, in this regard, pleaded that he sold the suit land out of his own share vide sale deed dated 09.12.2002, registered before the Sub-Registrar on the same date and delivered possession thereof to appellant no.1 in consideration of Rs.16,000/-. He further pleaded that the respondent by permitting the sale and purchase of the suit land of his own volition had waived his right of prior purchase.
6. On the pleadings of the parties, the trial court framed the following issues:
1. Whether plaintiff along with his brother and defendant no.2, Chagger Singh were / are owners, co-sharers in possession of equal shares of land measuring 1 Kanal (16 Marlas Warhal Awal and 4 Marlas Aar Banna), comprising of Survey no.1302/287 situated at village Barwal, Tehsil and District Kathua, when the Defendant no.2 sold 8 Marlas of land out of this survey No. in favour of the defendant no.1 by way of sale deed dated 9.12.02? OPP
2. In case issue no.1 is proved in affirmative, whether the defendant no.2 has duly served notice of proposed sale of suit property upon the plaintiff before executing the sale on 9.12.02 in favour of the defendant no.1? OPD 1 and 2 5 CSA No. 1/2013
3. In case the issue no.2 is not proved, whether the plaintiff is ready to pre-empt the sale executed by the defendant no.2 in favour of the defendant no.1 by paying Rs.16,000/- the consideration of sale? OPP
4. Relief? OP parties.
7. During the course of the trial, the respondent, besides recording his own statement, examined PW Hem Raj, Patwari, Halqa Barwal, as his witness. The appellants did not examine any witness other than recording their own statements. The appellant no.1 in his deposition before the trial court stated that the land stood partitioned between the appellant no.2 and the respondent about 60/70 years back, and appellant no.2 on his part deposed that the land in question stood partitioned from the time of his forefathers.
8. On the basis of the evidence on record, especially that of the Patwari who, on the basis of the relevant revenue record, deposed that no partition of the land had taken place and that appellant no.2 and the respondent were co-owners and co-sharers of the land, the trial court recorded a finding and decided issue no.1 in favour of the respondent. So it was established and held that the respondent, his brothers and appellant no.2 were co-sharers of the land in question.
9. As regards issue no. 2, the onus of which lay on the appellants, the trial court recorded a finding that the appellants had failed to prove that notice of proposed sale of the suit property was served upon the respondent.
6 CSA No. 1/2013
10. The trial court also decided issue no.3 in favour of respondent herein and, therefore, decreed the suit. As already mentioned, the 1st Appellate Court, on appeal by the appellants, recorded a concurrent finding.
11. During the course of hearing of this appeal, the learned counsel for the appellants‟ on 07.07.2020 sought adjournment on the ground that he has filed application for bringing on record some additional evidence. So the hearing of the appeal was adjourned. The appellants, however, filed application on 08.07.2020 under Order XLI, Rule 27 CPC, being CM no. 3222/2020, seeking permission to produce and bring on record a sale deed dated 11.02.2008, by virtue of which appellant no.1 is purported to have purchased from appellant no. 2 land measuring 2 marlas, falling under Khasra No. 235, Khewat no. 36-min, Khata no. 149-min, situated at Village Barwal, Tehsil and District Kathua, to claim that by purchasing the said land he (appellant no.1) has become co-sharer, and, thus, pleading that the right of the respondent stands defeated.
12. The law governing consideration of an application under Order XLI, Rule 27 CPC, has been dealt with and expounded in numerous judgments decades over. One of the latest judgment of the Supreme Court in this regard is Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, wherein the Supreme Court, after considering numerous of its earlier judgments, has dealt with the application of this provision of the CPC in different situations under different headings, such as, the 7 CSA No. 1/2013 stage of consideration, Section 100 CPC etc. I deem it appropriate to extract hereunder paras 36 to 70 of the judgment:
"Order XLI Rule 27 C.P.C.
36. 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 XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526; Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008; Soonda Ram v.
Rameshwaralal, AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553).
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co., AIR 1978 SC 798).8 CSA No. 1/2013
38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide Lala Pancham(supra)].
39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam, AIR 1969 SC 101).
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a „substantial cause‟ within the meaning of this rule. The 9 CSA No. 1/2013 mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words „for any other substantial cause‟ must be read with the word „requires‟ in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule
2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below.
The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.
43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons."
10 CSA No. 1/2013
44. ...
...
47. 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.
48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. Stage of Consideration
49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. 11 CSA No. 1/2013 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. 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide Arjan Singh v. Kartar Singh, AIR 1951 SC 193; and Natha Singh v.
Financial Commr., Taxation, AIR 1976 SC 1053).
50. In Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143, it was held:
„...The provisions of S.107 as elucidated by O.41, R.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 R.27, Cl.(1) (b) it is only where the appellate Court „requires‟ it (i.e. finds it needful). ...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 12 CSA No. 1/2013 the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. ... 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...‟ (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128).
51. In Arjan Singh v. Kartar Singh (supra), this Court held:
„7. ...If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. ...
8. ...The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment.‟ (Emphasis added) 13 CSA No. 1/2013
52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored. Section 100 CPC :
59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law. In SBI v. S.N. Goyal, AIR 2008 SC 2594, this Court explained the terms „substantial question of law‟ and observed as under:
„13. ...The word „substantial‟ prefixed to „question of law‟ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. „Substantial questions of law‟ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ...any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or 14 CSA No. 1/2013 collaterally, having no bearing on the final outcome, will not be a substantial question of law. ... There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.‟ (Emphasis added)
60. ...
61. ...
62. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.
63. ...
...
70. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial 15 CSA No. 1/2013 question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."
13. Similarly, paras 12 and 13 of the Supreme Court judgment in A. Andisamy Chettiar v. A Subburaj Chettiar, (2015) 17 SCC 713, are quoted hereunder:
"12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. ...
In K. R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257, this Court has held as under: (SCC p. 261. para 19) „19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction.‟."
14. In para 18 of the judgment (supra), the Supreme Court quoted para 5 of its earlier judgment in Mahavir Singh v Naresh Chandra, (2001) 1 SCC 309, interpreting the expression „or for any other 16 CSA No. 1/2013 substantial cause‟ occurring in Rule 27 of Order XLI CPC. The relevant portion of that para is quoted hereunder:
"5. ... The words „or for any other substantial cause‟ must be read with the word „requires‟, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence that this rule would apply..."
15. The Supreme Court has, thus, laid down explicit principles in regard to application of Order XLI, Rule 27 CPC which do not need any further analysis. In context of the fact that this is a civil second appeal, while considering the application filed by the appellants herein invoking the provision of Order XLI, Rule 27, few principals need to be borne in mind: first, that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned in Rule 27; second, that the application in question has to be considered at the time of hearing of appeal on merits so as to find out whether the document sought to be adduced has any relevance/bearing on the issues involved herein; third, that the admissibility of the additional evidence sought to be adduced depends upon whether or not this Court requires the document/evidence to enable it to pronounce judgment or for any other substantial cause; fourth, the ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court; fifth, that this Court should be able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be 17 CSA No. 1/2013 adduced; sixth, that additional evidence can be taken only if there is an inherent lacuna or defect in the evidence; seventh, that in exceptional circumstances the High Court may, notwithstanding the limitation imposed by the wording of Section 100 CPC, frame an additional substantial question of law if the need so arises, at the time of final hearing of the appeal, to render justice between the parties.
16. As mentioned earlier, the learned counsel for the appellants argued that as because appellant no.1, during the pendency of the 1stappeal before the 1st Appellate Court, by virtue of sale deed dated 11.02.2008 purchased land measuring 02 marlas in Khewat No. 36-min from appellant no.2, he has improved his status over the land and has become owner and co-sharer in Khewat No. 36-min, and that the sale deed has been reflected in the record of rights; thus, he has defeated the right of the respondent to maintain the suit for prior purchase. The learned counsel for the appellants in such endeavour sought to derive support from some judgments of the Supreme Court and of this Court which would be referred to later.
17. The respondent filed his objections to the application in question, objecting thereto on the grounds that the sale deed in question cannot be allowed to be produced at this stage under Order XLI, Rule 27 CPC as the same is not covered by the said provision. The second point raised is that the alleged sale has taken place almost seven years after the decree was passed by the trial court, and that the sale effected after passing of the decree cannot defeat the right of the plaintiff-respondent. 18 CSA No. 1/2013
18. The provision of Order XLI, Rule 27 CPC reads as under:
"Production of additional evidence in Appellate Court.-
(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 (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
(b) 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."
19. A bare perusal of the aforesaid provision of the Code makes it axiomatic that additional evidence can be permitted at the appellate stage, firstly, on the ground, if the court, from whose decree the appeal is preferred, has refused to admit such evidence as ought to have been admitted; secondly, when such additional evidence could not be produced by the said party because the same was not within his knowledge and 19 CSA No. 1/2013 could not be produced by him despite due diligence on his part; and thirdly, when 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.
20. So far as the present application filed by the appellants is concerned, it is not covered either by Clauses (a) or (aa) of Sub-rule (1) of Rule 27, Order XLI CPC, because it is not the case of the appellants that the court from whose decree the appeal is preferred refused to admit the evidence which ought to have been admitted by it. Similarly, it is also not the case of appellant no.1 that such document was not within his knowledge as the document sought to be produced by him is a sale deed, alleged to have been executed in his favour on 11.02.2008, i.e., during the pendency of the 1st appeal. Therefore, the document was well within his knowledge during the pendency of the 1st appeal. It hardly needs a mention here that the appellants did not disclose existence of this document before the 1st appellate court.
21. Now remains Clause (b) of Sub-rule (1) of Rule 27, Order XLI CPC; the condition precedent to allow a party to produce any evidence or document is the requirement of the Appellate Court of such evidence or document to enable it to pronounce judgment, or for any other substantial cause. Obviously, Clause (b) provides for mitigating two situations, first, to enable the Court to pronounce judgment; and second for any other substantial cause. Given the fact that this Court in this civil 2nd appeal is to deal with the two substantial questions raised in 20 CSA No. 1/2013 the appeal, quoted in the very first paragraph of this judgment, the additional document, i.e., the sale deed in question does not have any bearing or relevance to the determination of the said two questions. Consequently, the Court does not require the document in question to pronounce its judgments on the two issues.
22. Coming to the other factor provided in Clause (b) of Sub- rule (1) of Rule 27, i.e., for any other substantial cause, the argument put forth on behalf of the appellant no.1 is that by virtue of purchase of land measuring 02 marlas in Khewat No. 36-min from appellant no.2, he has improved his status over the land and has become owner and co-sharer in Khewat No. 36-min, and thereby the right of the respondent to maintain the suit for prior purchase stands defeated. To buttress his argument, the learned counsel cited and relied upon the Supreme Court judgments in Uttaradi Mutt v. Raghavendra Swamy Mutt, (2018) 10 SCC 484; and Hukum Chandra (D) thr. L.Rs. v Nemi Chand Jain, (2019) 13 SCC 363; and Full Bench (four Judge Bench) judgment of this Court in Jabbar Bhat v. Ashmi: AIR 1972 J&K 28; another Full Bench (three Judge Bench) judgment of this Court in Wali Mohammad v. Faqir Mohammad, AIR 1978 J&K 92.
23. As noted earlier, for any substantial cause, it is permissible to the Court to entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. The question is about the admissibility of the sale deed in evidence at this belated stage, firstly, because of it having 21 CSA No. 1/2013 come into existence after the date of the decree by the trial court; secondly, because of it having not been brought to the notice of the 1 st appellate court despite the fact it is purported to have been executed and registered during the pendency of that appeal; thirdly, because nothing about it was mentioned even in the memorandum of this appeal; and fourthly, because its existence has been disclosed for the first time during the course of hearing of this appeal. It needs to be reiterated here that the suit had been instituted on 24.12.2002, it was decreed by the trial court on 31.05.2007, the civil 1st appeal was filed on 05.06.2007 which was decided by the 1stappellate court on 16.11.2012, the sale deed in question is state to have been executed and registered on 11.02.2008, this civil 2nd appeal was filed on 04.01.2013 and the present application, disclosing the execution of the sale deed, was filed on 08.07.2020.
24. Let me first examine the judgments cited and relied upon by the learned counsel for the appellants. In Uttaradi Mutt v. Raghavendra Swamy Mutt (supra), it is seen that the trial court dismissed the suit. In the 1st appeal filed by the appellants-plaintiffs, the respondent-defendant made three applications under Order XLI, Rule 27 CPC seeking to produce additional evidence in the shape of government communications and orders (pertaining to a period much earlier to the institution of the suit) which were not in his control and possession at the time the suit was dismissed. The first appellate court dismissed those applications and partly allowed the appeal and decreed the suit in part. In the civil 2nd appeal, the High Court opined that the additional evidence sought to be brought on record, subject to proof, by the respondent-defendant, 22 CSA No. 1/2013 definitely, could have a material bearing on the issues involved in the suit and determining the rights of the appellant-plaintiff to claim injunction against the respondent-defendant. Para 17 of the judgment of the High Court, quoted in para 7 of the Supreme Court judgment, suggests that these government communications and orders pertained to a period almost twenty years (07.09.1974 or so) prior to the institution of the suit, which is shown to have been instituted in 1992. So, that was a case falling under clause (aa) of Sub-rule (1) of Rule 27, in that the respondent-defendant had established that such evidence was not under his control. The Supreme Court therein referred to the principles laid down by it in paras 47 and 48 of its earlier judgment in Union of India v. Ibrahim Uddin (supra).In the circumstances, strictly speaking, the facts of the said case are distinguishable from the facts attendant to the instant case, for, herein the sale deed has come in existence during the pendency of the 1st appeal and it was never sought to be produced before the 1 st appellate court despite the fact that after its execution, the 1st appeal remained pending decision for about 04 years and 09 months. It was also not mentioned or relied upon in the memorandum of appeal herein. So, the appellant herein has not been diligent, not even in the least.
25. So far as the Supreme Court judgment in Hukum Chandra (D) thr. L.Rs. v Nemi Chand Jain(supra) is concerned, therein the suit for eviction of tenant by the landlord on need basis was dismissed by the trial court. On 1st appeal, the first appellate court decreed the suit. In the 2nd appeal before the High Court, the tenant made an application under 23 CSA No. 1/2013 Order XLI, Rule 27 CPC to bring on record the eviction of another tenant in the same building pursuant to which the respondent-landlord had obtained vacant possession of a shop during the pendency of the appeal. That application, however, did not yield any fruitful result in his favour. The High Court dismissed the appeal. The contention of the appellant before the Supreme Court was that the subsequent event was not properly appreciated by the High Court. The Supreme Court, referring to its earlier judgments, in paras 15 and 16 of the judgment observed as under:
"15. Rights of the parties stand crystallised on the date of institution of the suit. However, in appropriate cases, court can take note of all the subsequent events. Observing that the court may permit subsequent event being introduced into the pleadings by way of amendment as it would be necessary to do so for the performance of determining the rule in controversy for the parties provided certain conditions are being satisfied, in Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256, it was held as under:-
„11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied:
(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;24 CSA No. 1/2013
(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
In Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770, this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at.
The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned:
(i) the event should be one as would stultify or render inept the decretal remedy, 25 CSA No. 1/2013
(ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice,
(iii) such cognizance of subsequent events and developments should be cautious, and
(iv) the rules of fairness to both sides should be scrupulously obeyed.‟
16. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. Whenever, there is subsequent events of fact or law, which have a material bearing on the rights of the parties to relief or on the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognizance of the subsequent changes of fact and law to mould the relief (vide Ramesh Kumar v. Kesho Ram (1992) Supp 2 SCC 623)."
As seen above, in Om Prakash Gupta v. Ranbir B. Goya, referred to in the aforesaid judgment, it has been clearly held that the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of institution of the suit. However, the Supreme Court has proceeded to lay down that the Court has power to take note of subsequent events and mould the relief subject to satisfaction of certain conditions enumerated thereunder. One such condition is that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 26 CSA No. 1/2013 Similarly, in Pasupuleti Venkateswarlu v. Motor & General Traders, the Supreme Court laid emphasis on the principle of diligently bringing to the notice of the court a fact arising after the lis, and the Supreme Court affirmed the proposition that the court can, so long as the litigation remains pending, take note of updated facts to promote substantial justice. However, the Court cautioned that the rules of procedure may be bent if there is no other special circumstance repelling resort to that course in law or justice, and that such cognizance of subsequent events and developments should be cautious, and that the rules of fairness to both sides should be scrupulously obeyed.
26. As already mentioned, in the instant case, the sale deed in question has been executed after the decree passed by the court of first instance and during the pendency of the 1st appeal. The appellant did not take any steps to bring the sale deed to the notice of the 1 stappellate Court. It was not referred to in the memorandum of this appeal and was brought to the notice of the Court only during the course of hearing, despite the fact that this appeal has been pending since 04.01.2013. Therefore, it is reiterated that the appellant not been diligent and the additional evidence has not been promptly brought to the notice of either of the 1st appellate court or this Court. The judgment, therefore, does not render any help to the appellant; it, rather, goes against him.
27. In Jabbar Bhat v. Ashmi (supra) (A Full Bench - four Judge
- judgment of this Court), the vendor Rahman Dar sold 7 Kanals, 13 marlas of land from Khewat no.38 comprising survey nos.820-min, 1736- 27 CSA No. 1/2013 min, 1716-min situate in village Ladura, Tehsil Sopore to the vendees Jabar Bhat and others by means of sale deed dated 10.02.1965 and registered on the same day. Later on, the same vendor Rahman Dar by means of another sale deed dated 23.05.1967 and registered on the same day further sold 04 kanals of land in favour of the same vendees and their another brother, Mukhta Bhat, from the same Khewat no.38, village Ladura Tehsil Sopore, but from a different survey number 2231. This second sale was made during the pendency of the suit before the trial court. The issue that was required to be decided in the 2 nd appeal was whether the plaintiff had a right of prior purchase regarding the suit land as against the defendants 1 to 4? Two points arose for determination in the appeal: firstly, whether the vendees could improve their title during the pendency of the suit so as to resist the suit for the exercise of the right of prior purchase; and secondly, whether vendees had become co-sharers of the land sold although the second sale was from a different survey, survey no.2231, from which no portion was sold by means of the earlier sale deed, the survey numbers of both the sales, however, being part of the same Khewat number. Therein, it was held as under:
"42. I, therefore, hold that the appellants vendees by purchasing land from survey no.2231 in khewat no.38 situate in village Ladhura Tehsil Sopore became co-sharers alongwith the other co-sharers of the land in the entire khewat and therefore could successfully defeat the right of pre-emption of Mst. Ashmi."28 CSA No. 1/2013
It is to be borne in mind that of the four-Judge Bench, the above was the majority view and the Chief Justice, Mr. Justice S. Murtaza Fazal Ali (as he then was) while concurring with the judgment which was written by Mr. Justice Janki Nath Bhat, in his note observed as under:
"49. ...In fact this point has already been decided by us in Ghulam Ahmad Mir‟s case (supra) whether the majority decision has expressed in clear terms that the defendant vendee could improve his title during the pendency of the suit in order to defeat the pre-emptor‟s right of pre- emption."
One thing is obvious from the above judgment that the improvement in status to defeat the pre-emptor‟s right of pre-emption had occurred during the pendency of the suit and such improvement in status was brought to the notice of the court immediately, during the pendency of the suit itself. That wholly is not the case herein.
28. In Wali Mohammad v. Faqir Mohammad (supra), another Full Bench (three Judge Bench) judgment of this Court, the plaintiffs pre- emptors had brought a suit for right of prior purchase on the ground that they were the tenants and, therefore, had preferential right to purchase the land in dispute. During the pendency of the suit, the defendant vendee improved his status by acquiring a piece of land by gift in the same khewat from the vendors. The vendee claimed co-sharership with the vendors and, therefore, claimed superior right as against the plaintiffs pre-emptors, thus defeating the right of the plaintiffs to claim the property in exercise of right of prior purchase. The Full Bench, however, 29 CSA No. 1/2013 found that there was no joint khewat out of which the vendor could gift away land from a different survey number to the vendee. Therefore, it could not be said that the vendee had become co-sharer in Khewat no.1 along with the plaintiffs and that they had improved their status vis-à-vis the plaintiffs-pre-emptors. This judgment is not helpful, except to the extent that the improvement in status therein was claimed during the pendency of the suit itself.
29. From the aforesaid decisions it is established that improvement of status can be claimed to defeat the pre-emptor‟s right of pre-emption, but the crucial question still remains at what or upto what stage in a civil suit can such a claim of improvement of status be made? This point was directly considered by the Supreme Court in Shyam Sunder v Ram Kumar, (2001) 8 SCC 24. Therein, the contention raised was that in a suit for pre-emption, the pre-emptor must possess his right to pre-empt right from the date of sale till the date of decree of the first Court, and loss of that right after the date of decree either by his own act, or an act beyond his control or by any subsequent change in legislation, which is prospective in operation, during pendency of the appeal filed against the decree of the court of first instance, would not affect the right of pre-emptor. The Supreme Court, after referring to the previous decisions of different courts in the country on the point, in para 10 of the judgment enumerated the legal principles on this point. Para 10 of the judgment is quoted hereunder:
30 CSA No. 1/2013
"10. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerge are these:
1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.
2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.
3. A pre-emptor who has a right to preempt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre- emption.
4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for preemption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation."
Further, at para 17 of the said judgment, the Supreme Court held as under:-
"17. In modern time, the right of pre-emption based on statutes is very much a maligned law. During hearing of 31 CSA No. 1/2013 these appeals such rights have been characterised as feudal, archaic and outmoded and so on. But its origin which was based on custom and subsequently codified was out of necessity of the then village community and society for its preservation, integrity and maintenance of peace and security. In changed circumstances, right of pre-emption may be called outmoded, but so long it is statutorily recognised, it has to be given the same treatment as any other lawdeserves. The right of pre-emption of a co-sharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the co-owner of the land. The main object behind the right of pre-emption either based on custom or statutory law is to prevent intrusion of stranger into the family holding or property. A co-sharer under law of pre-emption has right to substitute himself in place of stranger in respect of portion of the property purchased by him meaning thereby where a co-sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where law of pre-emption prevails. Such a right at present may be characterised as archaic, feudal and out- moded but this was law for nearly two centuries either based on custom or statutory law. It is in this background the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary. The Court has no option but to grant decree of pre-emption where there is a sale of a property by another co-sharer. And for that reason the Court consistently have taken view that where there is a sale of holding or property by a co-sharer, the right of a pre- emption is required to be settled at the earliest either on preemptor's proving his qualification to pre-empt on the date of the sale, on the date of filing of suit, and on the date of the 32 CSA No. 1/2013 decree of the Court of the first instance or vendee improving his status till the adjudication of suit for preemption and after adjudication of suit any loss of qualification by the preemptor or vendee improving his status equal or above to right of preemptor is of no consequence. In Zahur Din v Jalal Din, [ILR (1944) 25 Lah 443 : AIR 1944 Lah 319] a Full Bench of Lahore High Court while expressing necessity for settlement of rights of the parties at the earliest, held thus:
„It seems to be essential that a line should be drawn at some stage when the race between a preemptor and a vendee ought to come to an end and after having the well-known landmark of the date of the sale behind-as one now must-the farthest limit that can be granted to a vendee is that of the time of adjudication of the suit by the trial court‟."
The law, thus, settled by the Supreme Court, is that the right of a pre-emption is required to be settled at the earliest either on preemptor's proving his qualification to pre-empt on the date of the sale, on the date of filing of suit, and on the date of the decree of the Court of the first instance or vendee improving his status till the adjudication of suit for pre-emption and after adjudication of suit any loss of qualification by the pre-emptor or vendee improving his status equal or above to right of pre- emptor is of no consequence.
30. In view of the discussion made above and the settled position of law quoted hereinabove, the purchase of 02 marlas of land by the appellant no.1 from appellant no.2,falling under Khasra No. 235, 33 CSA No. 1/2013 Khewat no. 36 min, Khata no. 149 min, situated at Village Barwal, Tehsil and District Kathua, vide sale deed dated 11.02.2008 does not defeat the respondent‟s right of pre-emption, as his qualification to pre-empt has to be seen on the date of the sale, on the date of filing of suit, and on the date of the decree of the Court of the first instance; the subsequent event of execution of sale deed in question would not affect that right of the respondent. The application, CM no.3222/2020, filed by the appellants, therefore, merits dismissal and is hereby dismissed.
31. Now, I come to the main substantial questions of law raised by the appellants on the basis of which the appeal was admitted, the first of which is: whether it was not necessary for the trial court to frame an issue „with respect to the specific averments of the appellants-defendants in the written statement that the respondent had waived, relinquished and forfeited the service of notice as required under right of prior purchase act having permitted the defendant no.2 to sell the land and as such his suit was not maintainable?‟.
32. In order to find an answer to this question, it would be appropriate to go to Order XIV CPC which deals with the settlement of issues and determination of suit. Rule 1(1) of Order XIV deals with framing of issues. It provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. The „material propositions‟, in terms of Rule 1(2) of Order XIV, are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his 34 CSA No. 1/2013 defence. And Rule 1(3) of Order XIV provides that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
33. So, in terms of Rule 1(2) read with Rule 1(3) of Order XIV CPC, the question of framing a distinct issue would arise only when a plaintiff makes a statement or assertion of law or fact to show his right to sue or a defendant makes a statement or assertion of law or fact to constitute his defence.
34. In the instant case, the respondent‟s assertion was that he and appellant no.2 along with their brothers were owners and co-sharers of the land, and that out of the said land appellant no.2 sold 8 marlas to appellant no.1, who was a stranger, without issuing notice to him under Section 18 of the Right of Prior Purchase Act. Appellant no.2 denied the averment made by the respondent in the first paragraph of his plaint and then, buttressing his denial in the written statement, deposed in his oral statement that the land stood partitioned since the time of his forefathers. So appellant no.2‟s defence was that he, his brothers, including the respondent, were not co-sharers as co-owners of the land, but he was owner in possession of his own share, out of which he had sold 8 marlas to appellant-defendant no.1. This was his positive case. In face of such plea of defence, the question of framing of an issue that the respondent had waived, relinquished and forfeited the service of notice would not arise, especially so when such an alternative plea was not taken in the suit.
35 CSA No. 1/2013
35. As to the other assertion made by the respondent that appellant no.2 did not issue notice to him as envisaged under Section 18 of the Act, whereas appellant no.1‟s stand was that issuance of notice was not necessary, and that appellant no.2 had verbally informed the respondent about the sale of the land in favour of appellant no.1, and further that the respondent and other share holders had permitted him to carry on with the sale of the land; appellant no.2 himself pleaded that respondent by permitting the sale and purchase of the suit land of his own volition, waived his right of prior purchase. It is thus seen that it has not been the pleading or the material proposition of the appellants that having permitted the appellant no.2 to sell the land, the respondent had waived, relinquished and forfeited the requirement of service of notice as required under Section 18 of the Act. Instead, the case of appellant no.2 was that by permitting the sale and purchase of the suit land of his own volition, the respondent waived his right of prior purchase. So, going by the pleadings of the appellants, especially of appellant no.2, the proposition regarding waiver of notice by the respondent was not taken in the pleadings, muchless there being a „specific averment‟ in that regard made by them. In that view of the matter, going by such pleadings and the plain language of Rules 1(2) and 1(3) of Order XIV CPC, I am of the view that there was no occasion for the trial court to frame an issue that the respondent had waived, relinquished and forfeited the service of notice as required under Section 18 of the Right of Prior Purchase Act. 36 CSA No. 1/2013
36. There is another facet of the matter, which is this: The plea taken is that since the respondent had permitted the sale, the issue framed ought to have been whether respondent had waived notice. In this connection, it may be observed that the factum or legal inference of permission to execute the sale deed would itself be dependent upon the proof of the fact that the respondent had been informed about the proposed sale whether orally or by written notice. In other words, „permission to sell‟, pleaded by the appellants and attributed to the respondent, pre-supposes giving of intimation, information, notice - oral or written - to the respondent by the appellants regarding the proposed sale. Unless intimation, information or notice - whether oral or written - was given, permission would not be presumed. In that view of the matter, the question whether service of notice was waived would not arise for determination; instead the appropriate issue would be whether the respondent had the notice of sale, and that, in fact, was an issue framed by the trial court in the shape of issue no.2 onus whereof lay on the appellants, which they, however, failed to discharge.
37. There can be no reservation about the settled position of law that an oral intimation or information in this regard would satisfy the requirement of Section 18 of the Act. But, in the instant case, there is a concurrent finding of the courts below that the appellants had failed to prove issue no.2 onus whereof lay on them.
38. Accordingly, in light of the material propositions of the appellant-defendants and in presence of issue no.2 having been framed 37 CSA No. 1/2013 by the trial court, I am of the opinion that it was not necessary for the trial court to frame an issue that the respondent had waived, relinquished and forfeited the service of notice as required under Section 18 of the Right of Prior Purchase Act.
39. As regards the second substantial question of law raised by the appellant-defendants in this appeal, it would suffice to say that the courts below have rightly appreciated the law on the subject and distinguished the application of the judgments by the Supreme Court in Atam Prakash vs State of Haryana, AIR 1986 SC 859 and this Court in 2005 (2) JKJ 541, 1989 KLJ 665, from the facts of the case. So, plea of error on the part of the courts below in application of the common law is unfounded.
40. For all what has been discussed above, this civil 2nd appeal merits dismissal. It is, accordingly, dismissed along with the connected CMs. Interim direction, if any, passed by this Court and/or subsisting shall stand vacated.
41. Registry is directed to send down the records called for and/or received from the courts below along with a copy of this judgment.
(Vinod Chatterji Koul) Judge Jammu 23.07.2020 Pawan Angotra Whether the order is speaking? : Yes/No Whether the order is reportable? : Yes PAWAN ANGOTRA 2020.07.24 12:34 I attest to the accuracy and integrity of this document