Calcutta High Court (Appellete Side)
Sri Dhirendra Goswami & Ors vs Sri Biren Kumar Goswami on 14 May, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
S.A. No.196 of 1999
Sri Dhirendra Goswami & ORS.
... Appellants
- Versus-
Sri Biren Kumar Goswami
...Respondent
Mrs. Sohini Chakrabarty, Ms. Prajjaini Das ... For the Appellants Mr. Gaurav Purakayastha ... For Respondent Heard on : 14.03.2019.
Judgment on : May 14, 2019.
Sahidullah Munshi, J.:-
This second appeal at the instance of the plaintiff arises out of the judgment and decree dated 18th February, 1997, passed by the learned Additional District Judge, 1st Court at Alipore, South 24-Parganas, in Title Appeal No.86 of 1995, affirming the judgment and decree dated January 11, 2 1995, passed by the learned Assistant District Judge, 3rd Court, Alipore, South 24-Parganas, in Title Suit No.36 of 1992.
Plaintiff filed a suit for partition, accounts and other reliefs contending, inter alia, that the property involved in the suit appertains to three different plots originally belonged to Radharani Goswami, the first wife of Mahendra Kumar Goswami, who purchased the suit property by two separate registered Deeds of Conveyance dated 17.01.1955 and 16.04.1956 by her own money out of 'stridhan'. The said Radharani died intestate after 1956 leaving behind her husband Mahendra Kumar Goswami and her son Birendra Kumar Goswami (defendant no.1) as her sole heir. After the death of said Radharani, Mahendra Kumar Goswami married Prabharani Goswami (plaintiff no.1). Mahendra Kumar Goswami, having died intestate, plaintiffs and defendant jointly inherited Mahendra's interest in the suit property and started possessing the same jointly. According to the plaintiff, the defendant started claiming that the suit property exclusively belonged to him and as such, the defendant not only disturbed the peaceful occupation of the plaintiffs in the suit property, but also tried to oust them from their respective possession and had also been attempting to sell part of the property to third party for illegal gain. The plaintiff prayed for partition by metes and bounds.
Defendant contested the suit by filing written statement. Defendant admitted that Radharani Goswami purchased the suit lands excepting Dag No.245 from out of her 'stridhan'. It is, however, denied by the defendant that on the death of Radharani the suit property devolved on her husband 3 and son. The defendant further admitted that after death of his mother, his father contracted a second marriage to Prabharani. Defendant, however, denied that on the death of his father dying intestate in 1978, the plaintiffs and defendant jointly inherited Mahendra's interest in the suit property. It is the positive defence case that by two registered Kobalas dated 17.12.1955 and 16.04.1956 Radharani purchased the suit land out of her 'stridhan' and became absolute owner thereof. She died intestate leaving the defendant then aged about three years in respect of her 'stridhan' property and since then the defendant has been in exclusive possession of the same all through and the concerned revisional Record-of-Right stands in his name. It is the defence case that the defendant came to know from his father that his mother Radharani died within a month of her purchasing the suit property being 'Ajoutuk Stridhan', the same lawfully devolved on the defendant alone. It is also the defence case that he entered into an agreement for sale on 25.12.1988 with one Amina Bibi in respect of demarcated 2 cottahs, 8 chhitaks land from out of the suit land in Dag No.297 as the property belonged to him. It is also the defendant's contention that he constructed the house and has been in uninterrupted exclusive possession thereof and acquired indefeasible title in the suit property. Defendant has prayed for dismissal of the suit.
The trial Court framed as many as five issues and dismissed the suit based on a finding that plaintiff could not establish that Radharani died after the commencement of Hindu Succession Act, 1956 and, therefore, held that Mahendra Goswami, being not the heir of Radharani, plaintiffs would not 4 inherit anything left by Mahendra. An appeal was filed by the plaintiff but the plaintiff became unsuccessful in the appeal. As held by the learned trial Court, the respondent/defendant also argued in appeal that the suit property belonged to Radharani Goswami, first wife of Mahendra Goswami. She purchased the suit property by her 'stridhan' and from other gifts which were presented at the time of her marriage. It was claimed that Radharani Goswami was the absolute owner who died before 1956 leaving Biren Kumar Goswami, the only son and the defendant in the suit. According to Hindu Law, Biren got the entire property. According to the respondents, there was no wrong in the decision of the trial Court holding that the plaintiffs who are step-brother, step-daughter and step-mother of Biren, shall not get any share. The respondent prayed for dismissal of the appeal.
Since no substantial question of law has been framed at the time of admission of the appeal I frame the same in the following manner :
1) Whether the learned Appellate Court below was justified in refusing the appellant to produce additional evidence?
2) Whether the learned Appellate Court below was justified in arriving at a finding that the plaintiff obtained the death certificate sought to be produced by way of an additional evidence, by fraud or otherwise?
During pendency of the appeal the plaintiff/appellant filed one death certificate of Radharani Goswami and prayed before the Appellate Court below for marking the said document as an exhibit on behalf of the plaintiff 5 as an additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure. In the said death certificate, date of death was mentioned to be 16th Agrahayan, 1363 B.S. which corresponds to November, 1956 approximately. The said death certificate was issued by Kolkata Municipal Corporation on 16.01.1995. According to the Appellate Court below, the judgment was delivered by the trial Court on 11.01.1995 and since the document (death certificate) was obtained on 16.01.1995, only five days after the delivery of the judgment by the trial Court, the Appellate Court below held that the said document was a manufactured document whereas, the suit was filed sometime in 1992. According to the Appellate Court below, plaintiff got three years' time but he did not produce any death certificate of Radharani so that the dispute could have been resolved had the date of death been ascertained, whether was it before Hindu Succession Act or after the Hindu Succession Act. Learned Advocate appearing for the appellant submitted that Hindu Succession Act, 1956 came into force on June 17, 1956 and if the certificate of death is taken into consideration, then the plaintiffs have right over the property inasmuch as Mahendra becomes a legal heir of Radharani and would inherit the property with Biren, the defendant. The scope of the present second appeal is confined only with regard to the scope of the plaintiffs' prayer for considering the death certificate of Radharani which was obtained from the Kolkata Municipal Corporation as an additional evidence. The question whether the judgment under appeal can be sustained when the Appellate Court below refused to allow the plaintiffs' prayer for adducing additional evidence during the pendency of the appeal. Provisions of Order XLI, Rule 27 of the Code of Civil 6 Procedure does not specify whether additional evidence can be refused because the document sought to be relied on by a party has been obtained after the suit has been decided or dismissed. Provisions of Order XLI, Rule 27 of the Code of Civil Procedure is reproduced below for the sake of convenience :
"O. XLI, R.27. 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."
It is settled law that provisions of Order XLI, Rule 27 is by way of an exception to adduce additional evidence, it is not routine like manner to place additional evidence before the Court by a party to get a favourable order. Therefore, the approach of the Appellate Court may apparently be 7 considered to be a good approach in strict compliance of the provisions of Order XLI, Rule 27 of the Code, but each fact has its own case and there is no straightjacket formula either to allow the litigant's prayer or to reject the same. Rule 27 contains a Clause (aa) which has been inserted by C.P.C. Amendment Act, 104 of 1976 with effect from 1st February, 1977 that parties seeking to produce additional evidence, must establish 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. If this provision is taken into consideration, it shows that the finding arrived at by the learned Court below runs counter to the provisions of law. The judgment of dismissal passed by the trial Court led the plaintiff to hunt for redressal by finding out the actual date of death of Radharani which is the core issue in the instant suit and if this could be ascertained, the whole problem both for the plaintiff and the defendant could have been resolved. Therefore, after the suit was dismissed there is no wrong for the appellant to run to the competent authority to procure a document which really can determine the fate of the suit and which also could decide the entitlement of the plaintiff and the defendant. Simply because the appellant obtained the certificate from the Kolkata Municipal Corporation only few days after the judgment of dismissal of suit was passed, in my view, the learned Appellate Court's finding could not be held to be justified in saying that the document was fraudulently obtained. A document whether obtained in due process of law or by committing fraud, could only be ascertained if a party is given a chance to examine the document by tendering it into evidence. If no such occasion arises, it is 8 premature to hold that the document has been obtained by committing fraud. Therefore, to meet the ends of justice and as supported by the provisions of Rule 27 of the Code, the appellants had every right to at least approach the Court to decide the fate of the suit taking into consideration of the death certificate which was, although, on record of the Corporation, but for the ignorance or otherwise, did not obtain the same for production of it before the trial Court. It is settled law that under Rule 27 of Order XLI of the Code, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are - Whether, i. the trial Court had refused to admit the evidence though it ought to have been admitted;
ii. the evidence was not available to the party despite exercise of due diligence;
iii. the Appellate Court required the additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.
Additional evidence in appeal may be admitted to clear up the obscured areas of evidence which is applicable in the present case and in my view, had it been allowed by the Appellate Court below, definitely it would have cleared up the obscured areas of evidence and it would have been easier for the Court once for all to decide whether the plaintiffs have any right in the suit property or not. Since the conditions under Order XLI, Rule 27 are satisfied in this case, the Court had jurisdiction to permit additional 9 evidence and since the Appellate Court below has refused to admit the same, even the party was not allowed to produce the same before the Court, the second Appellate Court has every right to allow the party to lead such evidence by allowing the prayer under Order XLI, Rule 27 of the Code.
The substantial questions of law are, accordingly, answered in favour of the appellant.
Therefore, the appeal succeeds. The order impugned is set aside. The order passed by the trial Court also stands set aside. I direct remand of case back to the learned trial Court in exercise of my power under Rule 23 of Order XLI of the Code of Civil Procedure with a direction upon the learned trial Court to allow the plaintiff to tender the death certificate issued by the Kolkata Municipal Corporation into evidence with an opportunity to the defendant to also challenge the same and the learned trial Court shall decide the suit afresh and deliver judgment without being swayed in any manner by the judgment herein passed by this Court or the judgment of the Appellate Court below, or the judgment of dismissal passed by the trial Court earlier.
Department is directed to send back the records forthwith by special messenger at the cost of the appellant to be put in within a week.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)