Andhra HC (Pre-Telangana)
Pothula Rama Rathnamma And Ors. vs Gorle Lavanyavathi on 29 September, 1997
Equivalent citations: 1998(1)ALT271, 1998 A I H C 3536, (1998) 2 CIVILCOURTC 222, (1998) 1 LS 329, (1998) 2 ANDHLD 518, (1998) 1 ANDH LT 271, (1998) 1 APLJ 104, (1998) 3 CIVLJ 333
JUDGMENT Krishna Saran Shrivastav, J.
1. This appeal is directed against the judgment and decree of the Principal Subordinate Judge, Srikakulam, in A.S.No. 49/1986, whereby the decree of dismissal of the suit for permanent injunction in O.S.No. 471/1981 has been reversed.
2. The plaintiff instituted a suit for permanent injunction against the defendants alleging that in family partition, amongst others, the land bearing Survey No. 196/2, area 49 cents (for short 'the suit land') had fallen to the share of late Suri while his brother, B. Ramulu - D.W.3 - was allotted the other lands including "Rellugaddi" admeasuring 50 cents. After the death of Suri, his share including the suit land had devolved on his son, B. Venkataramana - P.W.3. B. Venkataramana - P.W.3, had sold the suit land to the plaintiff through registered sale deed, Ex.A-1, dated 30-3-1981. The plaintiff has raised coconut crops in the suit land. The defendants also wanted to purchase the suit land, but having failed to do so, had started threatening the plaintiff to dispossess her from the suit land. Therefore, the plaintiff sought a decree for permanent injunction against them.
3. The defendants denied the claim of the plaintiff. They pleaded that the whole land of 49 cents in Survey No. 196/2 was not allotted to late Suri, but actually 24 cents out of 49 cents in Survey No. 196/2 was allotted to B. Ramulu, D.W.3, who, in turn, sold the same through registered sale deed, Ex.B-1, on 6-4-1981. The defendants have raised redgram in the said 24 cents of land which is situated in front of their house divided by a road and, therefore, the suit deserves to be dismissed.
4. On assessment of the evidence on record, the trial Court dismissed the suit. In appeal, the appellate Court, relying on the evidence of P.Ws. 1, 2 and 3 as also on the land revenue receipt, Ex. A-2 and another land revenue receipt, Ex.A-4, and rejecting the evidence of the defendants and the revenue receipts produced by them, reached the conclusion that the plaintiff is the owner in possession of the suit land and, therefore, set aside the decree of dismissal of the suit and granted permanent injunction to the plaintiff.
5. The appellate Court had also admitted certified copy of number II account for Fasli 1383 and 1390 and marked the document as Ex.A-6 and had placed reliance on it.
6. Feeling aggrieved by the impugned judgment and decree, the defendants have preferred this appeal.
7. Relying on the case of Natha Singh and Ors. v. The Financial Commissioner, Taxation, . it has been urged on behalf of the appellants that the lower appellate Court had wrongly admitted the documentary evidence under Order 41 Rule 27 of the Code of Civil Procedure on the application IA. No. 44/1986 of the respondent without affording any opportunity to the appellants to contest the same as also without assigning any valid reasons and, therefore, the certified copy of the number II account in respect of Survey No. 196/2 for Fasli 1383 and 1390 should be excluded from being considered. It has been further urged on behalf of the appellants that the land revenue was paid by the plaintiff through Cist receipt, Ex.A-2, dated 7-11-1981 and on the same day the suit was instituted and, therefore, no importance can be attached to the cist receipt, Ex.A-2, for reaching the conclusion that the plaintiff was in possession of the suit land on the date of institution of the suit. It has lastly been urged that the question of title is not relevant in a suit for permanent injunction. The lower appellate Court has wrongly rejected the land revenue receipts filed by the appellants which are at Exs.B-2 to B-7 and the Pattadar Pass Book, Ex.B-8.
8. On the other hand, it has been contended on behalf of the plaintiff-respondent that the lower appellate Court has rightly rejected the land revenue receipts which are at Exs.B-2 to B-7 because the land revenue receipt which is at Ex.B-6 and another land revenue receipt which is at Ex.B-7 had been obtained by the appellants during the pendency of the suit and similarly the Pattadar Pass Book, Ex.B-8 had also been obtained during the pendency of the appeal whereas the land revenue receipts which are at Exs.B-2 to B-5 have been manipulated and, therefore, they have been rightly excluded from being considered. The first appellate Court has incidentally decided the title of the respondent-plaintiff and has rightly concluded that she was in possession of the suit land on the date of the institution of the suit.
9. In the case of Natha Singh and others (supra), the Apex Court has held that:-
"The discretion given to the appellate Court to receive and admit additional evidence under Order 41, Rule 27 is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that provision. 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 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."
10. In Para 11 of its judgment, the first appellate Court has written that during the pendency of the appeal, the respondent had filed I.A. 44/1986 to receive additional document under Order 41 Rule 27 of the Code of Civil Procedure which document is the certified copy of number II account in respect of Survey No. 196/2 Fasli 1383 and 1390 and this document being the certified copy of the account number II issued by the revenue authorities cannot be objected to be received on record. It also found that this document would help to come to a right conclusion regarding possession and enjoyment of the suit land. It is seen that no opportunity was given to the appellants to contest the application I.A. 44/1986 and the appellate Court has not given any valid reason for taking the document on record. Only because the document is a certified copy of account No. II issued by the revenue authorities, it cannot be accepted as additional documentary evidence. Under Order 41 Rule 27, production of additional evidence, whether oral or documentary, is permitted only where: (1) the trial Court had refused to admit the evidence which it ought to have admitted; or (2) the evidence was not available to the party notwithstanding the exercise of due diligence; or (3) the appellate Court requires the additional evidence so as to enable it to pronounce judgment. As noted above, the first appellate Court has not assigned any acceptable reason for taking the documentary evidence on record. On the authority of Natha Singh and others (supra), I hold that the first appellate Court has not exercised its jurisdiction properly and the order appears to be an arbitrary one and, therefore, the document, Ex.A-6, is excluded from being considered.
11. The lower appellate Court has discussed the evidence of P.W.3, and D.W.3 and has rightly concluded that there was a mutual family partition between the father of P.W.3, namely Suri and his brother B. Ramulu, D.W.3, about 15 years prior to their examination in the Court. The lower appellate Court has relied on the unchallenged evidence of P.W.3 that the suit land had been allotted to his father in the family partition and in lieu thereof, D.W.3 was allotted 50 cents of land known as "Rellugaddi". It did not rely on the evidence of D.W.3 because he could not state properly about the lands which had been allotted to him in the family partition. Under these circumstances, no fault can be found out with the finding of the lower appellate Court that the suit land had fallen to the share of late Suri in the mutual family partition. The lower appellate Court has rightly rejected the land revenue receipts which are at Exs.B-2 to B-5 because it appears that there was over figuring in figure 4 of the figure 74. The land revenue receipts which are at Exs.B-6 and B-7 had been issued during the pendency of the suit and similarly the entry Ex.B-9 had been made in the Pass Book, Ex.B-8, on 6-6-1982, that is to say subsequent to the filing of the suit.
12. From the evidence of the witnesses of the respondent-plaintiff it is evident that the predecessor-in-title of the respondent-plaintiff used to cultivate the suit land by raising coconut crops and thereafter the respondent-plaintiff had also raised coconut crops. It is pertinent to note that the witnesses of the appellants-defendants have also admitted that the respondent-plaintiff and her predecessor-in-title had raised coconut crops, but according to them, in a part of the suit land and not in 24 cents of the land out of the suit land which is covered by the sale deed, Ex.B-1, dated 6-4-1981. But, this statement does not appear to be correct and acceptable. The reason is simple. The suit land has been allotted to late Suri. The sale deed was executed by P.W.3 in favour of the plaintiff on 30-3-1981. When the plaintiff has purchased the whole land in Survey No. 196/2, it is reasonable to infer that the plaintiff would have cultivated the whole land because there appears to be no cause for the plaintiff to leave 24 cents of land. The defendants-appellants have purchased 24 cents of land on 6-4-1981, that is to say subsequent to the purchase of the land by the plaintiff-respondent and it is only after the execution of the sale deed/the defendents-appellants would have tried to enter upon the 24 cents of land because Prior to that, they had no alleged right to enter upon it. Under these circumstances, it is highly probable that the plaintiff-respondent was in cultivating possession of the suit land on the date of institution of the suit and, therefore, merely because the land revenue was paid on the date of execution of the sale deed through receipt, Ex.A-2, it cannot be said that no importance can be attached to the Cist receipt, Ex.A-2. True it is that title should not be investigated in a suit for permanent injunction only, but title can be incidentally investigated for the purposes of determining whether the plaintiff was in possession of the suit land as on the date of institution of the suit or not.
13. For the foregoing reasons, even if the Account No. II, Ex.A-6, is left out of consideration, as discused above, there is ample evidence on record to hold that the plaintiff was in possession of the suit as on the date of the institution of the suit.
14. In result, there appears to be no merit in the appeal and, therefore, it is dismissed. However, in the circumstances of the case, I leave the parties to bear their own costs.