Karnataka High Court
Sri. K C Paramashivaiah S/O Late ... vs Sri T Narayanaswamy S/O Late L Thimmaiah on 25 September, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
R.S.A. NO. 2206 OF 2007
BETWEEN:
1. SRI.K.C.PARAMASHIVAIAH
S/O LATE CHANNAPPA
AGED ABOUT 65 YEARS
RESIDING AT KANNASANDRA VILLAGE
LAKKENAHALLI POST
MAGADI TALUK
BANGALORE RURAL DISTRICT.
2. SRI.K.C.MAHADEVAIAH
S/O LATE CHANNAPPA
AGED ABOUT 55 YEARS
R/AT KANNASANDRA VILLAGE
LAKKENAHALLI POST
MAGADI TALUK
BANGALORE RURAL DISTRICT. ...APPELLANTS
(BY SRI.N.DEVADASS-SR COUNSEL FOR
M/S JAYARAJ & ASSTS., ADV.,)
AND:
1. SRI.T.NARAYANASWAMY
S/O LATE L.THIMMAIAH
AGED ABOUT 60 YEARS
RESIDING AT NO.1127, 'SRINIVASA'
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RAJAJINAGAR II STAGE
BANGALORE-560 010.
2. SRI.T.SRINIVASA
S/O LATE L.THIMMAIAH
AGED ABOUT 60 YEARS
R/AT NO.1127, 'SRINIVASA'
RAJAJINAGAR II STAGE
BANGALORE-560 010.
3. SRI.T.GURUNATH
S/O LATE L.THIMMAIAH
AGED ABOUT 60 YEARS
R/AT NO.1127, 'SRINIVASA'
RAJAJINAGAR II STAGE
BANGALORE-560 010.
4. SRI.HOSALAIAH
S/O LATE VEERANNA
AGED ABOUT 65 YEARS
R/AT KANNASANDRA VILLAGE
LAKKENAHALLI POST
SULUR HOBLI, MAGADI TALUK
BANGALORE RURAL DISTRICT.
5. SRI.SOMASHEKARAIAH
S/O LATE VEERANNA
AGED ABOUT 58 YEARS
R/AT KANNASANDRA VILLAGE
LAKKENAHALLI POST
SULUR HOBLI, MAGADI TALUK
BANGALORE RURAL DISTRICT. ...RESPONDENTS
(BY SRI.M.SHIVAPRAKASH, ADV., FOR R2 & FOR C/R4 &
C/R5; R1 & R3 SERVED UNREPRESENTED)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 30.05.2007 PASSED IN R.A. NO. 62/2005
ON THE FILE OF THE I ADDL. DISTRICT JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 16.07.2005 PASSED IN OS.NO.185/1998
ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.)
RAMANAGARAM.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30.05.2007 passed in R.A. No.62/2005 on the file of the I Addl. District Judge, Bangalore Rural District, Bangalore, dismissing the appeal and confirming the judgement and decree dated 16.07.2005 passed in O.S. No.185/1998 on the file of the Addl. Civil Judge (Sr. Dn.) Ramanagaram.
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2. The case of the plaintiff in the trial court is as under:
Chennappa, father of the plaintiffs acquired agricultural lands measuring 5 acres and 1 gunta in Sy.No.65 of Kannasandra Village, Solur Hobli, Magadi Taluk, Bangalore Rural District in the year 1930. This land was purchased under a public auction. After the death of Chennappa his two sons namely the plaintiff herein have been in continuous possession of the above said property which is morefully described in the schedule herein below which is referred as schedule property. The schedule property was enjoyed by the plaintiff without there being any hindrance. The records of rights and pahanies for the years 1971-72 to 1992-93 evidence the fact of possession of the schedule property by the family of Channappa as the rightful owners. The Deputy Commissioner, Bangalore Rural District, Bangalore, directed the Tahsildar, Magadi Taluk, Magadi, vide communication in No.BCB/Phada/M/1/93-94 dated 29.5.1993 which reveals the entries in the revenue records are in favour of the plaintiffs. The defendants No.4 and 5 and defendant Nos.1 to 5
3 have no manner of right, title or interest in and over the schedule property. Defendants No.4 and 5 are from the same village as of the plaintiff.
3. The plaintiff further states that the father of defendant Nos.4 and 5 namely Veeranna alongwith defendant No.1 have made an application before the Tahsildar, Magadi Taluk, Magadi, seeking entries in their names in the revenue records in respect of the schedule property. At the first instance, the Tahsildar, by overlooking all the material facts ordered for change of katha to be made in favour of the defendants No.4 and 5 by order dated 24.01.1994, which was the subject matter of the appeal before the Assistant Commissioner, Ramanagaram Sub-Division, Ramanagaram in R.A. (LKP) 176/93-94 who examined the implication of the order passed by the Deputy Commissioner, Bangalore Rural District, in No.BCD/Phada/M/1/93-94 dated 29.05.1993 and allowed the appeal and remitted back the matter for fresh disposal by order dated 07.05.1996 with a remark that the Tahsildar shall consider and decide the matter in the light of 6 the endorsement issued by the Deputy Commissioner. The Tahsildar rightly considered the above said direction issued by the Assistant Commissioner and passed an order dated 29.07.1997. The order of the Assistant Commissioner dated 23.03.1998 became the subject matter before this Court in W.P. No.15131/1998 filed by the plaintiff and this Court while disposing off the petition confirmed the order of the Assistant Commissioner, but observed that the order passed in the writ petition shall not influence any proceedings before the Civil Court, where the parties may litigate their claims in respect of the schedule property.
4. Defendant Nos.4 and 5 have stated throughout before the authorities that they lay claim to the schedule property under a deed of sale made in the year 1974 said to be executed by Thimmaiah. It is for the first time defendant Nos.4 and 5 produced the encumbrance certificate for the period from 01.04.1974 to 31.03.1975 in writ petition No.15131/1998 before this Court wherein the document 7 speaks of sale transaction said to have transferred on 03.08.1974 between Sri T Narayana Swamy and T Gurunath as the vendors and Veeranna as Purchaser and the document is said to have been numbered as 2000/74-75 at pages 105- 106, in volume 1675 before the Sub-Registrar, Magadi Taluk. The above encumbrance certificate was filed along with the statement of objections by defendant Nos.4 and 5 in the said writ petition. After obtaining certified copy of the sale deed said to have been executed on 27.06.1974 by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 in respect of the schedule property, the plaintiff came to know that the whole transaction of sale is of a dubious character and is only prepared by connivance of the defendants with each other with malafide intention and ulterior motive to knock off the schedule property. It may not be out of context to submit that Thimmaiah, father of the defendants 1 to 3 held certain other agricultural lands in the vicinity of the schedule property and the sale deed of 27.06.1974 is only an unlawful 8 method of ushering the property in the neighborhood of which the schedule property lay besides.
5. On perusal of the sale deed of 27.06.1974 it is very clear that the defendants 4 and 5 who have been greatly inimical towards the plaintiffs wanted to create a semblance of right or title in respect of the schedule property.
6. The plaintiff further states that the knowledge of the illegal transaction of sale which is also the subject matter of the present suit, is on 05.10.1998, when the plaintiffs obtained the certified copy of the same. Defendant Nos.4 and 5 filed O.S. No.106/1995 seeking a decree of permanent injunction. The suit is still pending. Prayer for the interim order before the Court of Civil Judge (Jr. Dn.) Magadi was rejected. An appeal was preferred against this order vide M.A. No.5/1996, wherein the court declined to interfere with the trial courts order. The plaintiffs even to this date held absolute ownership, enjoyment and peaceful possession of the schedule property despite few threats by defendants 4 9 and 5. Now there is no threat of invasion of the exclusive rights and also the unlawful interference by defendants 4 and 5 and having recorded this aspect, the plaintiffs did not pursue the matter further.
7. It is very clear that the defendants are hand-in-glove with each other to snatch the schedule property away from the plaintiffs. Even a cursory glance at the sale deed of 27.06.1974 would reflect the whole transaction is stage managed by the defendants among themselves only with an ulterior motive to take away the schedule property from the hands of the plaintiffs. The deed in question though states that the property is an ancestral one does not in any way disclose the details regarding the same which further fortifies the contention of the plaintiffs. The sale consideration is a paltry amount of Rs.2,000/- for the entire extent of the schedule property only speaks of the intention of the executors of the sale deed in favour of defendants 4 and 5. 10
8. It is very clear that the sale deed dated 27.06.1974 is a fraudulent document and as such does not confer any title in favour of any of the defendants. Defendants 1 to 3 had no title at all to convey in favour of defendants 4 and 5 in respect of the suit schedule property, as such the sale deed in question is invalid, illegal, null and void ab initio. Since the sale deed of 27.06.1974 has now become a weapon in the hands of the defendants and in particular defendants 4 and 5 to frustrate the legitimate ownership of the plaintiffs to the property in question, therefore it is necessary to seek a declaration from this Court that the above said sale deed is null void and it is not binding on the plaintiffs.
9. The cause of action for the suit arose in the month of June, 1998, when the defendants 4 and 5 have filed documents in W.P. NO.15131/1998 stating about the sale deed in question and on 05.10.1998 when plaintiffs obtained the same from the office of the Sub-Registrar, Magadi. Therefore, the plaintiff seeks for a judgement and decree 11 against the defendants, declaring that the sale deed dated 27.06.1974 executed by the defendants 1 to 3 in favour of defendants 4 and 5 and which is registered as Document No.20005/74-75, pages 105-106, volume 1675, of Book-I, registered in the office of Sub-Registrar, Magadi on 03.08.1974 as null and void.
10. In the court below the first defendant has filed the following written statement.
The allegations made in the plaint were denied. The property in question is Sy.No.65 originally belonged to one Thimmaiah and he was in possession and after his death, this defendant became the owner with his brothers Srinivasa and Gurunath. This defendant along with his brothers sold the same in favour of one Veeranna under a Registered sale deed dated 27.06.1974. Said Veeranna was inducted into possession. Now this defendant came to know that Veeranna died and after his death, his sons are in possession and enjoyment. RTC (Pahani) records stood in the name of 12 Thimmaiah. At that relevant point of time plaintiffs father (Channappa) himself was the Patel to Kannasandra. The allegations made in plaint stating that it was auctioned by the Government, and it stood in the name of Channappa in the auction are false. Defendant is not a party in O.S. No.106/95.
11. The first defendant further states that the property in question belonged to Thimmaiah, pahani and revenue records stood in his name. He was in possession and enjoyment of the same. He died leaving behind him defendants 1 to 3 as his sons. These defendants 1 to 3 sold the same i.e., Sy.No.65 measuring 5 acres one gunta in favour of one Veeranna, father of defendants 4 and 5 under a registered sale deed dated 27.06.1974, and Veeranna was inducted into possession. Hence the allegations made in para 5 of the plaint stating that sale transaction is a dubious character etc., are false. These defendants 1 to 3 were the owners after the death of Thimmaiah and have duly executed 13 the Registered sale deed. Defendants are not aware of any proceedings in O.S. No.106/1995.
12. The plaintiffs are playing the real drama. The plaintiffs knew very well about transaction of 1974, now to make out a cause of action, they are pleading that they are not aware of the same. Sy.No.65 measures 5 acres, out of which 0-04 guntas of land is Kharab. The cultivable portion is four acres, thirty seven guntas.
13. The defendant Nos.4 and 5 have filed the written statement in the court below as under:
The averments made in the plaint were denied. It is the fact that Veeranna the father of defendants 4 and 5 gave an application before the Tahsildar for correction of the entries in the record of rights when he came to know the said entries are illegal and unauthorized. The Tahsildar, Magadi Taluk after holding an enquiry as per law has allowed the application and ordered for correction of the said entries by his order dated 21.04.1991. This order was perfectly correct 14 and legal. However the plaintiffs challenged the correctness of the said order before the Assistant Commissioner Ramanagaram sub Division in R.A.(LKP)176/93-94. The Assistant Commissioner has wrongly allowed the appeal and remitted the case back to the Tahsildar for fresh disposal by an order dated 27.05.1996. Thereafter, the Tahsildar passed an order on 29.07.1997 ordering the registration of Khatha in favour of the plaintiffs. The validity of this order of the Tahsildar dated 29.07.1997 was challenged by defendants 4 and 5 before the Assistant Commissioner Ramanagaram by preferring R.A. (LKP) 70/97-98, who by his order dated 23.03.1998 has set aside the order dated 29.07.1997 passed by the Tahsildar. The aforesaid order of the Assistant Commissioner was perfectly in accordance with law and facts of the case. But the plaintiffs challenged the same before the Hon'ble High Court of Karnataka in W.P.No.15131/98. The Hon'ble High Court has rightly dismissed the said Writ Petition and confirmed the order of the Assistant Commissioner.15
14. The father of the defendants 1 to 3 Sri L Thimmaiah was the owner of the suit land and Defendants 1 to 3 being his sons became the lawful owners after the demise of L.Thimmaiah. Father of defendants 4 and 5 i.e., Veeranna purchased the suit land for valid consideration from defendants 1 to 3 under a registered sale deed dated 27.06.1974 bearing document No.2000/74-75 registered in the Office of the Sub Registrar, Magadi Taluk. From 27.06.1974 the defendants have been in actual physical possession and enjoyment of the suit land as lawful owners. The encumbrance certificate issued for the later period corroborates with the above mentioned sale transaction.
15. Defendants 4 and 5 specifically denied the statement made in para 6 of the plaint that the plaintiffs came to know about the sale transaction for the first time on 05.10.1998. The sale transaction is evidenced by a registered sale deed. The encumbrance certificate discloses that the sale transaction is dated 27.06.1974. In view of this, the 16 plaintiffs cannot be allowed to contend that they came to know about the sale transaction on 05.10.1998. The present suit for declaration that the sale-deed is null and void and not binding upon by the plaintiffs is hopelessly barred by time. The plaintiffs filed a false and vexatious suit in O.S.106/95 against these defendants seeking a decree of permanent injunction. The allegation made therein that defendants 4 and 5 caused illegal interference is totally false. Since the defendants 4 and 5 have been continuously in lawful possession and enjoyment of the suit land from the date of purchase on 27.06.1974, the question of plaintiffs being in possession and causing interference in their possession by defendants 4 and 5 did not arise. The temporary injunction sought for by the plaintiffs in the said suit was rightly rejected by the Trial Court. M.A. 5/96 challenging order of rejection of the application for temporary injunction by the trial court was rightly dismissed by the learned Civil Judge (Sr.Dn) Ramanagaram. The present suit is not maintainable in view of pendency of O.S. No.106/95. It is reiterated that 17 the defendant Nos.4 and 5 are bonafide purchasers of the suit land, having purchased the same under a registered sale deed for a valuable consideration. The cause of action for the suit arose on 05.10.1998 is incorrect. The defendants state that the suit is hopelessly barred by time.
16. On the above pleadings the trial court framed the following issues:
1. Whether the Plaintiff prove that the Sale Deed Dated 27.06.1974, executed by the defendant Nos.1 to 3 in favour of Defendant Nos.4 and 5 is null and void ab initio and not binding upon them ?
2. Whether the Defendants prove that the suit is barred by time ?
3. Whether the Defendants proves that the suit is not maintainable ?
4. To what reliefs, the Plaintiffs are entitled to ?
5. What decree, Order ?18
17. The trial court has answered the above issues as under:
Issue No.1 In the Negative
Issue No.2 In the Affirmative
Issue No.3 In the Affirmative
Issue No.4 In the Negative
Issue No.5 As per order below
18. In the trial court plaintiffs have examined three witnesses namely, PW.1 to PW.3 and Exs.P1 to P9 were marked. The defendants have examined witnesses namely DW.1 to DW.4 and Exs.D1 to D5 are marked.
19. The finding of the trial court is as under:
Plaintiffs' claim that the sale deed executed by defendants 1 to 3 in favour defendants 4 and 5 is illegal and not binding upon them and it is on this issue the matter is to be considered. The sale deed is of the year 1974. The present suit is for declaration that the sale deed is null and void. The plaintiffs are well aware of the fact. The 19 defendants have filed written statement in the suit. The written statement is dated 24.06.1995. In para 6 of the written statement, pleadings are to be found with regard to the sale deed dated 27.06.1974 under which the defendants claim title and possession of the same. The plaintiffs are well aware of this fact in the year 1995 itself, that the date on which the written statement is filed, that is on 24.06.1995. The present suit is filed on 29.10.1998, after lapse of three years. The revenue proceedings have very little consideration in view of the fact that the Hon'ble High Court in W. P. No. 15131/98 clearly mentions that when the matter is already pending before the Civil Court and the same has to be considered by the Civil Court and not in writ proceedings. The Trail Court in O.S.106/1995 has rejected the claim of plaintiffs and have clearly held that the defendants are in possession of the property. The detailed discussion is made about the property being purchased in Court auction and the property being shown ever since 1930 till 1974 as Government land and the possession and ownership vest with 20 the Government. It is defendants who have purchased the property and in turn the father of defendants 1 to 3 is found to be the purchaser and it is these defendants 1 to 3 who have later sold the property to defendants 4 and 5. All these aspects go to show that the sale deed is valid. Though the principles of res-judicata may not be applicable as from the orders passed in O.S.106/1995 because earlier suit was for a bare injunction and the present suit is for declaration to the effect that the sale deeds are null and void but, the principles of estoppel will prevail. The plaintiffs have pursued the suit according to their own say. The order of the Trial Court is upheld in M.A.9/96 and these proceedings have become final and binding upon the parties. The revenue proceedings are also to be found. The order of the Tahsildar is dated 29.07.1997. The order of the Assistant Commissioner under EX.D21 also makes a mention about this sale deed. The plaintiffs are very much parties to this proceedings. It is clear that the plaintiffs are aware of the sale deed through out the course of litigation. The revenue proceeding date back from 21 the year 1993-94 and the claim made by the plaintiffs that they come to know about the sale deed in the year 1998 cannot be accepted. The suit of the plaintiffs is clearly barred by the time under the provisions of the Indian Limitation Act.
Article 58 speaks about the declarations. Article 59 speaks to sale or set-aside an instrument or decree for rescission of contract. The limitation period prescribed as three years when the facts entitling the plaintiffs to have an instrument or decree cancelled or set-aside or the contract rescinded has become known to him. The record on hand speaks that the plaintiff are aware of this instrument way back in the year 1993-94. The present suit came to be filed in the year 1998, i.e., after more than three years and in these circumstances the plaintiff intending to prove that the sale deed dated 27.06.1974 is invalid does not arise because the suit is barred by time. Therefore, the suit of the plaintiff was dismissed as not maintainable. Feeling aggrieved by the same, the plaintiffs have preferred R.A. No.62/2005. 22
20. The sum and substance of the finding of the lower appellate court is as under:
The lower appellate court has raised the following points for its consideration:
1. Whether the lower court has erred in holding that the plaintiffs have not substantiated their title to the suit schedule property and consequently, the suit for declaration is not maintainable?
2. Whether the lower court has erred in holding that the suit is barred by limitation?
3. Whether the impugned Judgment suffers from any error of law or fact, calling for interference by this Court?
4. What order?
21. The lower appellate court has answered the above points as under:
Point No.1 In the Negative
Point No.2 In the Negative
Point No.3 In the Negative
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Point No.4 As per the final order.
22. The lower appellate court has observed that the clear finding on issue Nos.1, 3 and 4 have not been recorded. This procedural aspect was highlighted by the appellant. It is true that it has been now laid down that the lower Court must answer all the issue raised in the suit by assigning specific reasons, supporting the conclusions arrived at by the Court, so that such reasoning is amenable for scrutiny by the appellate Court. But, there is no legal prescription that the lower Court cannot answer all the issues together. As long as the lower Court has considered all the materials produced before it and has applied its mind to all the issue raised in the suit, merely on the ground that each of the issues are not separately answered, cannot be a reason to set aside the Judgment of the lower Court.
23. The lower appellate court has observed that the plaintiffs have filed the suit for bare declaration that the sale deed dated 27.6.1974, is not binding on them. The plaintiffs 24 have not claimed any further relief with regard to their title to the suit schedule property. But, the plaintiffs have specifically based the suit on their title contending that their father purchased the suit schedule property in a Court auction in the year 1930 and ever since then, their father was in possession of the suit schedule property. The onus lies on the plaintiff to substantiate their pre-existing right, title and interest in the suit schedule property as on the date of the impugned sale deed dated 27.6.1974. But, unfortunately, the plaintiffs have not produced any document to show that the purchase of the suit schedule property by their ancestors in the Court auction. Instead, the plaintiffs have sought to substantiate their claim solely on the basis of the revenue documents. But, it is now well settled that the revenue entries are not documents of title. They cannot form basis for declaration of title. The plaintiffs have not produced any such document of title, to substantiate their claim. Instead, they have sought to justify their title solely on the basis of the entries contained in the R.T.Cs and the list of Khatedars 25 produced at Ex.P.8 and the sketch Ex.P.9. The revenue documents cannot establish the title of the predecessor. In column No.9 of the R.T.C., the name of Channappa has been rounded off and in its place it is written as "Pada Sarakari". This entry goes against the very case of the plaintiffs. That apart, copies of the R.T.Cs. which are marked in evidence as Exs.P.10 to P.13, are not certified copies of the R.T.Cs, but mere Xerox copies of R.T.Cs. Though, the Tahsildar of Magadi taluk is shown to have signed the said documents, Exs.P.10 to P.13 cannot be construed as certified copies or secondary evidence within the meaning of Section 63 of the Indian Evidence Act. In the said R.T.Cs., Channappa is shown as the owner in possession of Sy.No.65, measuring 5 acres 1 gunta of Kannasandra village, from 1972 to 1998-89. But, in view of the orders passed by the Revenue Authorities in respect of the said entries, no presumptive value can be attached to the entries in the Record of Rights and Register of Mutations produced by the plaintiffs.
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24. The lower appellate court at para 16 has mentioned that the encumbrance certificate produced by the plaintiffs at Ex.P.5 also does not support the case of the plaintiffs. When the plaintiffs themselves have come to the Court alleging that a registered sale deed has been executed by defendant Nos.1 to 3 in favour of defendant Nos. 4 and 5, in respect of the suit schedule property, such a transaction does not find place in Ex.P.5. This itself goes to show that Ex.P.5 is contrary to the true state of facts. When it is admitted by the plaintiffs that the registered sale deed has come into existence in respect of the suit schedule property in the year 1974, the encumbrance certificate issued by the registering authority ought to have contained this fact in Ex.P.5. By the very fact, that such an important fact is absent in Ex.P.5 leads to doubt, the genuineness of the documents relied on by the plaintiffs. On any count, the plaintiffs having not produced any independent document in proof of their title over the suit schedule property, the lower Court has rightly held that the plaintiffs have failed to substantiate their title to the suit 27 schedule property by clear and cogent evidence. On re- appreciating the oral and documentary evidence produced by the plaintiffs, I do not find any reason to differ with the conclusions arrived at by the lower Court on this issue, merely because, this issue is not answered by the lower Court separately is no ground to set aside the finding recorded by the lower Court on this issue.
25. The lower appellate court has also mentioned that in the instant case there is a long lapse of 24 years from the date of execution of the sale deed. Though, in the plaint, an averment is made to the effect that the plaintiffs came to know about the existence of the sale deed only during the pendency of the Writ Petition bearing No. W.P.15131/1998 before the Hon'ble High Court of Karnataka, but having regard to the material produced before the Court, the said assertion cannot be believed. It is borne on record that the plaintiffs and defendant Nos. 4 and 5 were litigating before the Revenue Authorities over the mutation entries in respect 28 of the suit schedule property much earlier to 1998 and there is enough material to show that as early as in 1993 the existence of the registered sale deed was known to the plaintiffs.
26. The lower appellate court at para 18 has mentioned that it is an admitted fact that the plaintiff themselves have filed the suit for injunction against defendant Nos. 4 and 5 in O.S.No.106/1995 on the file of the Civil Judge (Junior Division) and J.M.F.C. Magadi. The certified copy of the plaint is produced by the defendants and marked in evidence as Ex.D.13. The Written statement filed by defendant Nos. 4 and 5 in the said suit is marked as Ex.D.14. It is dated 24.06.1995. There can be no manner of doubt that this document is admissible in evidence since the plaintiffs as well as defendant Nos. 4 and 5 - Contesting parties to the suit are parties to the said proceedings. In paragraph 6 of the written statement, defendant Nos.4 and 5 have specifically contended that, the land bearing Sy.No.65 measuring 5 acres 1 gunta 29 was purchased by their father late Veeranna during his lifetime for valuable consideration of Rs.2,000/- from the children of L.Thimmaiah. The said sale deed is duly registered before the jurisdictional sub-registrar bearing document No.2005/74-75 at page Nos.105 and 106 dated 27.06.1974. Even otherwise, registration of a document is deemed to be constructive notice of execution of the document. Therefore, it does not lie in the mouth of the plaintiffs to contend that they were not aware of the registration of the sale deed-Ex.D.1. Even though, in the memorandum of appeal it is contended that the defendants have not examined any of the attesting witnesses and not proved Ex.D.1, there is no such requirement under law to examine the attesting witnesses of a sale deed.
27. The lower appellate court has further observed that for the purpose of present suit, the only aspect to be considered is whether the registration of the sale deed and the existence thereof was within the knowledge of the 30 plaintiffs, so as to furnish a cause of action for them to seek the relief of declaration within the period of limitation? As the documents produced in evidence clinchingly establish that the plaintiffs were aware of the registration of the sale deed in respect of the suit schedule property much earlier to 1995, as borne on the orders passed by the revenue authorities as per Ex.P.3, Ex.D.19 and Ex.D.20, the suit filed by the plaintiffs on 02.11.1998 is clearly barred by limitation. The lower Court, therefore, has rightly applied Articles 58 and 59 of the Limitation Act to the facts of the case and has dismissed the suit. Therefore the lower appellate court confirmed the judgement of the trial court. Feeling aggrieved by the same the plaintiffs have preferred this second appeal before this court.
28. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent. I have perused the trial court records as well as the appellate court records.
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29. Learned counsel for the appellant submits as under:
The impugned judgment and decree of the courts below are contradictory. The courts below have not framed any issues in a proper manner which has led to miscarriage of justice. The O.S. No.106/95 is filed for grant of injunction. This suit was not prosecuted in view of the present suit i.e., the O.S. No.105/98. Learned Senior counsel Sri N Devadas submitted that mere existence of an adverse entry in the revenue records did not give rise to a cause of action.
30. Learned counsel for the appellant also relied on the following rulings:
1. In the case of Daya Singh & another .VS. Gurudev Singh through LRs. reported in 2010 AIR SCW 689, attention of this court was invited to paragraphs 7, 8 and 9.
" 7. As noted herein earlier, the only question, therefore, to be decided is whether the mere existence of an adverse entry in the revenue records had given rise to cause of action as contemplated under Article 58 or it had accrued when the right was infringed or threatened to be 32 infringed. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. In support of the contention that the suit was filed within the period of limitation, the learned senior counsel appearing for the plaintiffs/appellants before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned senior counsel strongly relied on a decision of the Privy Council reported in AIR 1930 PC 270 (Mt.Bolo V.Mt.Koklan and others). In this decision their Lordships of the Privy Council has observed as follows:-33
"There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
8. A Similar view was reiterated in the case of C.Mohammad Yunus V. Syed Unnissa and others (AIR 1961 SC 808) in which this Court observed:
"the period of 6 years prescribed by Article 120 has to be computed from the date when the right to sue accrued and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right."
9. In the case of C.Mohammad Yunus (supra), this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right.
Therefore, the mere existence of an adverse entry 34 into the revenue record cannot give rise to cause of action."
2. In the case of Dada since deceased by LRs. .VS. Mahadu since deceased by LRs. reported in 2008 (5) KCCR 3533, attention of this court was invited to paragraphs 17, 22 and 29.
" 17. It is very vehemently urged that the evidence on record very strongly probabalise the case of the defendant that the plaintiffs had the knowledge of the two transactions viz. the two sale deeds given from the year 1980 and at any rate, from the year 1984 onwards even as per the admission of PW1 and a suit filed in the year 1991, 1992 i.e., eight years after the plaintiffs had come to know of the sale transactions, is clearly barred by limitation in view of Article 58 of the schedule to the limitation and submitted that having regard to the nature of relief sought for, it is only Article 58 that is attracted to the present situation and not Article 113, the residuary article, as the starting point for limitation is, the point of time when the right to sue accrues in terms of Article 58 and right to sue can be said to 35 have accrued even as per the pleadings either in the year 1980 or later in the year 1984 and as per the admission of PW1 and in the light of such submission, submitted that the mere statement of plaintiffs that they were not aware of the sale transactions till the year 1991 when the defendant by filing objections to their applications for mutating their names in the revenue records had indicated that the two sale transactions by objections and that was the starting point for limitation cannot be accepted for the reasons that if the plaintiffs' names were not mutated in the revenue entries along with other lands which belonged to Ramji in the year 1980 as is evident from the perusal of Ex.D17 and in the light of the provisions of Section 3 of the Transfer of Property Act, particularly, the meaning of the phrase ' a person is said to have notice' of the fact when actually knows that fact, or when but for willful abstention from an enquiry actually knows that fact, or when but for willful abstention from an enquiry or search which he ought to have made, or but for gross negligence he would have known and has submitted that if the plaintiffs had failed to make such enquiry either in the year 1980 or in 36 the year 1984, they have failed in acquainting themselves with necessary information and having acted carelessly or negligently, it should be deemed that they had knowledge of the two sale transactions and even if they could not have known, they could have come to know after a reasonable enquiry and therefore, the suit is clearly barred by limitation. In this regard the learned counsel has taken me through the evidence of PW1 and Ex.D17 to indicate that the revenue authorities had not mutated the names of the plaintiffs in the subject suit lands whereas, the other lands of Ramji has been mutated the names of the plaintiffs, which itself could have put the plaintiffs on alertness and on notice about any other possibilities.
xxxx
22. The limited question in the second appeal is as to whether the lower appellate court has answered the two questions correctly and on the appreciation of the evidence before the court.
xxxx
29. Even this conduct of the defendant and the plaintiffs' claim that they had continued to 37 remain in possession of the property also goes in favour of the plaintiffs for the purpose of limitation as if the plaintiffs had remained in possession of the property in question and there was no disturbance to their possession which is probabilised by the supporting oral evidence of PWs-1 to 3 and the revenue records never having shown the name of the defendant as a cultivator or person in possession, it cannot be said that the plaintiffs if they had filed a suit in the year 1992, it is barred by limitation as the plaintiffs had continued to remain in possession of the property and under the impression that they are the owner of the property and the time such impression is sought to be disturbed by any adverse claim, that can be taken to be the starting point for limitation."
3. In the case of Sri N Hanumantharaya VS.
Smt.Mariyamma and others reported in 2008 (3) KCCR 1465. Attention of this Court was invited to para 38 and this Court has observed as under:
38
" 38. Though the plaintiff sought for amendment of the plaint for incorporating of para 5A as well as the prayer for setting aside the sale deemed in favour of defendants-5 to 8, in this regard, the amendment application was allowed on 12.1.1998 and from that date, within 14 days, the plaintiff was required to carry out the amendment in the plaint. However, even today, as far as prayer for setting aside the sale deed is concerned, on perusal of the original plaint from the records, it is clear that the plaintiff has not carried out the amendment in the plaint and in view of the judgment of the Apex Court in 2005 (6) Supreme Today 389 (supra), the party who fails to carry out the amendment is not entitled for the benefit of amendment. On this ground also, the plaintiff is not entitled for grant of relief of setting aside the sale deed in favour of defendants-5 to 8. This view is also supported by the decision of the Madras High Court reported in AIR 2003 Madras 416 (supra). Insofar as limitation is concerned, apart from Article 59 of the Limitation Act, the Apex Court in a decision reported in AIR 2001 SC 2607 (supra) has categorically held that limitation starts from the date of allowing of an amendment 39 application and the date of knowledge is the date of starting point. In my view, the plaintiff is not entitled for relief as far as setting aside of the sale deed in favour of defendants-5 to 8 is concerned."
31. Learned Senior counsel also submitted that the trial court has not answered all the issues and it has not determined the issues separately. Therefore, the finding of the trial court is not proper. It is the definite case of the plaintiff that the defendants are not the owners of the suit schedule property. The defendants did not had right or title to execute the sale deed EX.P1. Therefore the plaintiff is entitled for cancellation of the instrument i.e., EX.P1.
32. Learned counsel for the respondent Sri M Shivaprakash submits as under:
Learned counsel for the respondent supports the impugned judgment and order of the courts below. He further submits that there is a concurrent finding of facts. No document is produced to show that they acquired the property in the year 1930 by virtue of public auction. 40 Revenue proceedings commenced in the year 1992-93. Documentary evidence is produced to that effect before the court, they are at EX.D21. The averment made in the plaint is not in conformity with the revenue proceedings i.e., RRT 686/92-93.
33. EX.D16 is the Pahani which is the document which traces the source of title and this also indicates about the flow of title from 1962 onwards. Registered sale deed is a public document. There is a clear admission during the course of cross examination of PW.1 to the effect that he came to know about 12 years back i.e. during the year 1993. No ground is made out to declare the sale deed as void. The ingredients of Section 31 of the Specific Relief Act has not been fulfilled. The plaintiff has omitted to seek further relief.
34. The learned counsel for the respondent relies on the following decisions:
41
In the case of Ramti Devi (Smt.) VS Union of India reported in (1995) 1 Supreme Court Cases 198, wherein the Hon'ble Supreme Court in para 2 has observed as under:
" 2. The question is whether the suit is within limitation. In the evidence, it was admitted that she had knowledge of the execution and registration of the sale deed on 29.1.1947. Initially a suit was filed in 1959 but was dismissed as withdrawn with liberty to file fresh suit.
Admittedly, the present suit was filed on 30.7.1966. The question, therefore, is whether the suit is within limitation. Article 59 of the Schedule to the Limitation Act,1963, relied on by the appellant herself, postulates that to cancel or set aside an instrument or decree or for the recession of a contract, the limitation is three years and it begins to run when the plaintiff entitles to have the instrument or the decree cancelled or set aside or when the contract rescinded first became 29.1.1949 itself the limitation began to run from that date and the three years' limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri.V.M.Tarkunde, learned Senior Counsel for the appellant, that the 42 counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debt and it is a registered document. Apart from the prohibition under Section 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the validity of the sale deed or its binding nature was raised nor a finding recorded that the sale deed is void under Section 23 of the Contract Act, Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains 43 valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29.1.1947, the date on which the sale deed was executed and registered and the suit was filed on 30.7.1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs."
35. That on 24.04.2009, this Court heard on the substantial questions of law and thereafter this Court has framed the following substantial questions of law:
1. Whether the courts below have properly appreciated the evidence while coming to a conclusion that the suit is not maintainable?
2. Whether the courts below have committed an error in coming to the conclusion that the suit is barred by limitation?
3. Whether the manner of appreciation of evidence by the courts below would admit of perversity in coming 44 to the conclusion that the defendants have made out a case before the trial court without establishing the title of Sri Ramaiah under whom the defendants had claimed right to the property?
4. Whether the courts below were justified in noticing the earlier suit in O.S No.106/1995 and in coming to a conclusion that the present suit is barred by res-
judicata even though the earlier suit was not decided on merits and was only a bare suit for injunction?
36. Section 31 of the Specific Relief Act deals with cancellation of the written instrument which is void or voidable. The relief of cancellation of an instrument is founded upon the administration of protective justice for fear that the instrument may be vexatiouly or injuriously used by the defendant against the plaintiff when the evidence to impeach it may be lost, or that it may throw a cloud or suspicion over his title or interest. To entitle a plaintiff to a decree for cancellation of an instrument, he must show - 45
1. that the instrument is void or voidable;
2. that the plaintiff has reasonable apprehension that the instrument, if left outstanding, may cause him serious injury; and
3. that the court ought under the circumstances of the case, in the exercise of its discretion, to order it to be delivered up and cancelled.
37. The test is, 'reasonable apprehension of serious injury'. The question whether that exists must depend on the circumstances of the particular case with which the court has to deal. Mere speculation as to unknown and vague complication arising in future is no ground for cancellation. Apprehension of serious injury is one of the most essential component to declare that the instrument is void. Exercise of discretion must be sound and reasonable, guided by judicial principles, and is capable of correction in appeal; but the appellate court would not lightly interfere in the lower court's discretion. The court must consider the conduct of the 46 parties and the nature of the instrument. No relief will be granted under this section if the instrument sought to be adjudged void or voidable accurately represents the intention of the parties. Delay in the institution of the suit or the plaintiff's conduct may be such that the court may in the exercise of its discretion refuse to grant him relief. In the exercise of this discretion, the court should ordinarily, where a plaintiff is out of possession and is in a position to claim a decree for possession, refuse to pass a decree for the cancellation of an instrument according to which, if genuine, he has no title to the land, and leave the plaintiff to a suit for possession. The appellate court will not lightly interfere with an exercise by the first court of its discretion. A suit to cancel or to set aside an instrument or decree or for the recission of a contract must be filed within three years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. The plaintiff has to prove the date of discovery of fraud, and that his suit is within limitation. The 47 burden of proving lies on the defendant to show that the plaintiff had knowledge that the instrument was void or voidable before the date stated by him in the plaint. In this background let us examine whether the plaintiff has established his case for cancellation of the instrument.
38. In the trial court the plaintiff has examined three witnesses namely PWs.1 to 3 and marked the documents as Exs.P1 to P9. The defendants have examined DW.1 to DW.4 and Exs.D1 to D23 were marked.
39. PW.1 is K Paramashivaiah. He states that plaintiff No.2 is his brother. He has produced the sale deed - EX.P1, copy of the order of High Court in W. P. No.15131/98 which is marked as EX.P.2. EX.P.3 is the Assistant Commissioner's order. Exs.P 4 and 5 are the encumbrance certificates. EX.P6 is the death certificate of Channappa. EX.P7 is the mutation extract. Though this witness was cross examined, he has denied the suggestions put to him. The suit schedule 48 property was purchased by his father which was a gomal land in an auction. He has produced the document to the court.
40. PW.2 is one Sri K P Sadashivaiah. He states in his evidence that he knows the plaintiff and their deceased father Channappa. Their family have been in peaceful possession and enjoyment of the suit schedule property. They are cultivating the suit schedule property. Though this witness was cross examined nothing worthwhile has been elicited.
41. PW.3 is Sri Byranna. He deposed that he know the plaintiff and their deceased father Channappa. His land Sy.No.63 lies towards northern side of the suit schedule property. None of the defendants are in possession and enjoyment of the suit schedule property. He states during the cross examination that he does not know about the sale deed executed between Thimmaiah and Veeranna in the year 1974.
42. DW.1 is Hosalaiah. He is the fourth defendant. He has deposed that his father late Veeranna purchased the 49 property on 27.06.1974 and they were enjoying the property. After his death, the suit schedule property was inherited by the fifth defendant and his brother and joint katha was obtained. O.S. No.106/95 was filed and the said suit was dismissed on 24.06.2002. The joint katha was challenged before the court of Assistant Commissioner on 27.5.1996, a remand order was passed directing the Tahsildar, Magadi Taluk to decide the case afresh. Feeling aggrieved by the order of the Assistant Commissioner an appeal was preferred on 23.03.1998 and the said order passed in the appeal was also challenged in W.P.No.15131/98 and on 11.11.1998, the writ petition was dismissed.
43. Plaintiffs have sought for cancellation of the instrument after 24 years. DW.2 is Srinivas who is the second defendant in this case. He has deposed that originally the suit property belongs to his father and it was in his possession. His father died about more than three years back. He alongwith his brother sold the property in favour of 50 Veeranna, S/o Channabasappa of Kannasandra village under the registered sale deed dated 27.06.1974 and since their another brother Sri Gurunath was in Canada, his brother Narayanaswamy had obtained power of attorney and executed the sale deed. During his cross examination he states that he has not verified the source of title of Thimmaiah to the suit land. He denies the suggestion put to him that the suit schedule property belongs to plaintiffs father Channappa. DW.3 is Siddalingaiah. He has deposed that defendants Hosalaiah and Somashekaraiah were enjoying the suit schedule property and his property is lying on the southern side of the suit schedule property. DW.4 is Sri Nanjappa. He has deposed that he knows plaintiff and defendant. During the year 1974, the schedule property was purchased by Veeranna. Thereafter, the property was inherited by Hosalaiah and Somashekaraiah. During his cross examination he states that he has not participated in the sale proceedings of suit land in 1974. He has not seen the 51 original records of suit land. The other suggestions put to him were all denied.
44. Though the suit was filed for cancellation of the instrument, evidence led during the course of trial is in the nature of fulfilling the requirement for grant of declaration. It is for the plaintiff to establish his case. He has to lead evidence pointing out that the instrument is void or voidable and if that instrument is left, it will cause serious injury.
45. I have carefully examined the evidence placed on record. The evidence adduced by the plaintiff supports for the declaration rather than cancellation of the instrument i.e., sale deed dated 27.6.1974. The trial court more particularly have examined the evidence placed on record. Though the sale deed was dated 27.6.1974 but the plaint was presented on 2.11.1998. It is the case of the plaintiff that they did not had the knowledge or they first came to know about the sale deed only after the writ petition was filed in W.P.No.15131/98.
52
46. Learned Senior counsel Sri N Devadas relied on the ruling in the case of Daya Singh and another VS Gurdev Singh through LRs. reported in AIR 2010 SCW 689 that mere existence of an adverse entry in the revenue record cannot give rise to the cause of action. In the instant case the relief sought by the plaintiff is cancellation of the sale deed which is under challenge. It is not the case of the plaintiff that they are challenging the adverse entry made in the revenue records. The plaintiff has to satisfy the court that there are circumstances which prevented the plaintiff from instituting the suit within the stipulated time. The statute prescribes that a suit for cancellation has to be instituted within three years, but in the instant case the plaint has been presented after 24 years. It is the definite case of the plaintiff that he did not had knowledge of the instrument of sale. The sale deed was registered document and it was a public document. Therefore, the burden lies upon the plaintiff to establish in an unequivocal terms that he came to know about the existence of the sale deed after 24 years, but in the instant case I have 53 carefully examined the evidence placed on record, there is no evidence to that effect. Question of limitation is mixed question of law and facts. Evidence by the plaintiff has to be adduced before the court to point out that he came to know about the sale deed on the date of presentation of the plaint, but the said evidence is not forthcoming in the instant case. Therefore the finding recorded by the court below with regard to the substantial question No.2 i.e., whether the courts below have committed an error in coming to the conclusion that the suit is barred by limitation is sound and proper and does not call for interference.
47. The next aspect that I have to consider is whether the court below has properly appreciated the evidence, whether there is any perversity while appreciating the evidence? As stated earlier the plaintiff has sought for a relief of cancellation of instrument, whereas the evidence adduced by the plaintiff is to secure the relief of declaration. It is for the plaintiff to establish his case by adducing proper evidence 54 by fulfilling the requirement of Section 31 of the Specific Relief Act. In this case evidence placed on record does not indicate anything about the serious injury that will be caused to the plaintiff and also there is no positive evidence to the effect that the instrument i.e., the impugned sale deed is void or a voidable document. Therefore, in my view, the trial court and the appellate court have carefully examined the evidence and have arrived at a right conclusion.
48. With regard to substantial question of law no.4, I mention that the O.S. No.106/95 is a suit relating to injunction. Even the copies of the plaint, written statement and the judgment have not been produced before the court below. The relief sought in O.S.No.106/95 is for grant of injunction whereas the relief sought in O.S.No.185/98 is for cancellation of the instrument. Therefore, in my view, the principles of res-judicata does not apply to this case. 55
49. The next point that arises for my consideration is, whether the application under Order 41 Rule 27 should be allowed or not?
50. In support of this application the appellant has sworn to an affidavit stating that he has produced the documents such as index of land, akarbandh, survey sketch in respect of Sy.No.74 shows the name of L Thimmaiah in respect of 5 acres and 8 guntas of Kannasandra village, mutation and RTC entries. The order passed by the Assistant Commissioner in Revision Petition No.138/07. These documents are required to establish their case that the land in Sy.No.65 belongs to them and they are in possession and enjoyment of the same. They further state that due to indulgence they could not produce the said documents before the lower court or the appellate court. These documents are additional documents which throw light over the right, title and interest as well as the possession of Channappa in respect of 5 acres and 1 gunta of land in Sy.No.65. 56
51. Objections of respondent were also filed to this application. The respondent No.2 states that it is a belated application. To fill the latches or lacuna, this application is filed. The documents produced are all revenue public documents and very much available throughout. There is no indulgence for the plaintiff to secure and produce the same. There is no vital document which indicates that the land was acquired by public auction in 1930. The documents of index, akarbandh, sketch could not confer any title in favour of plaintiff. These documents will not render any supportive evidence. The intention of the appellant is to protract and prolong the proceedings. The appellant as provided under Order 41 Rule 27 has not exercised due diligence to demonstrate that the documents were not within the knowledge of the appellant.
52. Learned senior counsel Sri N Devadas submitted and relied on the following rulings:
57
1. In the case of Gabriel Bhaskarappa Kuri and Others VS The United Basel Mission Church in India Trust Association and Others reported in ILR 2007 KAR 773.
Attention of this court was invited to para 12 of the judgment.
" 12. The suit is of the year 1990. It was filed on 12.10.1990. The judgment and decree in the Trial Court was passed on 28.9.1994. The appeal is numbered as R.A.No.58/1994 and the same was disposed of on 20.9.2006. 12 years after the institution of the appeal. In other words after 16 years of the institution of the suit the parties are back to square one. It is because of these solitary cases entire judicial system is ridiculed. The lower Appellate Court if only had looked into these provisions and was conscious of the criticisms levelled against the judiciary, it would not have remanded the matter to the Trial Court as it has done. Even if those documents are relevant, as the documents sought to be produced are judgments and decrees passed by various Courts, they could have been marked by consent and they could have been looked into and a judgment could have been passed on merits. Even if parties wanted 58 opportunity to lead oral evidence, the first Appellate Court had jurisdiction to record oral evidence by itself and decide the appeal on merits with that additional evidence on record. Instead of resorting to these settled legal procedures as contemplated under Order 41 Rules 27, 28 and 29, the learned Judge has short circuited the whole process, which the lower Appellate Courts should avoid. In that view of the matter, the impugned judgment and decree of the first Appellate Court cannot be sustained. It is an appropriate case to direct the first Appellate Court itself to record the evidence if necessary and decide the appeal on merits."
2. In the case of Smt.Rutha Bai VS Mr.Baldev Singh reported in ILR 2006 KAR 3406.
" CODE OF CIVIL PROCCEDURE, 1908-ORDER 41 RULE 27.
Production of additional documents to adduce additional evidence-Consideration of application- Object of -ON FACTS HELD, The main object of production of additional documents to adduce additional evidence is to prove the case of the 59 petitioner and to render assistance to the court-
The said grounds are sufficient to permit production of additional documents under Order 41 Rule 27 of C.P.C."
53. Learned senior counsel submitted that these documents are necessary for adjudicating the point involved in this case. They could not produce these documents earlier if these documents are produced and marked it will throw new light on the case of the plaintiff.
54. Learned counsel for the respondent submits as under:
At this belated stage the documents cannot be allowed to be marked in order to fill the lacuna. All these documents are public documents. These were available, but the plaintiff has not explained as to why he was not able to secure these documents and produce the same either before the trial court or before the appellate court. The litigation has to come to an end at one stage. At this belated stage these documents cannot be allowed to be brought on record. He further 60 submits that these are not vital documents and these documents are revenue documents and which does not confer any title to the plaintiff. In support of his contention he relies on the following rulings:
In the case of Natha Singh and others VS The Financial Commissioner, Taxation, Punjab and Others reported in AIR 1976 SC 1053.
" Civil P.C. (1908), O. 41, R. 27-Discretion to allow additional evidence - Test - Improper exercise of discretion- Effect of.
The discretion given to the appellate court to receive and admit additional evidence under O. 41, R. 27 is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that provisions. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the re-record will have to be ignored. The true test to be applied in dealing with applications for additional evidence 61 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, AIR 1951 S C193, Ref.
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10. So far as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. If be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence 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 (See Arjun Singh alias Puran v. Kartar Singh, 1951 SCR 258 = (AIR 1951 SC 193). In the 62 instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to be spurious."
55. He also relies on an unreported decision in the case of Maganlal Bhikamchand Mehar VS Mulchand Jawarmal Nahar (dead) by LRs. and others (Civil Appeal No.1325 of 1966, decided on 11th September, 1969) unreported judgement (S.C.) 135 (69).
" Civil Procedure Code- O.41, R.27- Additional evidence permitted for sufficient cause.
Under Order 41, r. 27 of the Code of Civil Procedure a Court of Appeal may allow a document to be produced or witness to be examined in order to enable it to pronounce judgment or for any other substantial cause. Additional evidence is allowed to be produced for the requirement of the Court and not to enable a party to make good a deficiency in his case. By the 63 rule it is expressly enacted that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. Plainly the application for production of the additional evidence does not fall to observe that we have looked into the document and scrutinised its contents. From its appearance it is difficult to believe that it is nearly 40 years old as it purports to be if genuine."
56. No doubt Order 41 Rule 27 of Code of Civil Procedure is applicable even in second appeal, when the evidence placed on record is insufficient to determine the point involved in the case or the issues involved in the case. This Court can permit the parties to adduce the additional evidence even in second appeal in order to do substantial justice, but in the instant case parties are known their definite case and they have lead evidence. At this stage the plaintiffs want to produce the revenue documents. Though these documents were public documents, there is no proper explanation as to why he was not able to produce the same before the lower appellate court or at the trial court. 64
57. I have heard the arguments of both sides in respect of this application and also I have examined the evidence placed on record. Even if these documents are marked and admitted as an evidence the conclusion reached by the trial court or the appellate court may not vary. The trial court and the appellate court have correctly examined the evidence placed on record and have come to a proper conclusion. Besides, there is sufficient evidence and materials placed on record to prove to be right or reasonable in respect of the conclusion arrived by the trial court as well as the appellate court. Therefore, in my view this application at this belated stage cannot be entertained and the same is liable to be rejected.
58. The trial court has appreciated the evidence and has come to the conclusion that the plaintiff is not entitled for relief of cancellation of the instrument i.e., sale deed dated 27.6.1974. The appellate court has confirmed the judgment of the trial court. There is a concurrent finding. Normally in 65 a second appeal the concurrent finding recorded by the courts below will not be disturbed unless there is a very strong ground is made out. It is essential to do justice at all juncture and parties should not be dragged into an unending litigation. Added to this the plaintiff has presented the plaint to the court after 24 years. He has also not made out any case as to how he was not knowing about the registration of a deed of sale dated 27.6.1974. Taking into consideration of all these aspects of the case, in my view, there are no grounds made out to interfere with the finding recorded by the trial court as well as the appellate court.
59. In view of the above discussion, I pass the following:
ORDER This Regular Second appeal is dismissed.
SD/-
JUDGE YKL