A second appeal challenging convictions that defendants became tenants of the mortgagor after mortgage redemption. The High Court distinguished Supreme Court precedents noting absence of statutory protection and dismissed the appeal. An application for late additional evidence was also rejected.
Appeal dismissed; application for additional evidence dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 71 of 2002 Reserved on : 8.12.2014 Decided on: 10.12. 2014
______ _____________________________________________ Deemanu Ram and others. …Appellants. Versus Bilwa Mangal. …Respondent.
______________________________________________________________ Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellants: Mr. R.K. Gautam, Sr. Advocate with Mr. Vikrant Chandel, Advocate. For the Respondent: Mr. Ajay Sharma, Advocate.
Justice Rajiv Sharma, Judge.
This Regular Second Appeal is directed against the judgment and decree dated 27.9.2001 rendered by the District Judge Kangra at Dharmashala in Civil Appeal No. 94-K/XIII/1999.
1 Whether reporters of the local papers may be allowed to see the judgment? Yes
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Tehsil and District Kangra, as per Jamabandi for the year 1987-88 and the entry of defendants in column of tenancy existing in the revenue record was illegal and unauthorized. Defendants or their predecessor-ininterest were never inducted as tenants by the plaintiff or his predecessor-in-interest since the land was under mortgage with the mortgagees and the same was redeemed vide civil suit No. 158/1974. The possession was delivered on 18.9.1992 on the basis of judgment rendered in Civil Suit No. 158 of 1974.
“24.4.2001
Present : Shri Sunder Aggarwal, Adv. Ld. Counsel for the appellants.
Sh. Rakesh Soni, Ad. Vice counsel for the respondent. In view of the remand of the case by Hon’ble High Court, following additional issues are framed:-
2-B If issue No.2-A is not proved, whether the tenancy
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was created by the mortgagees in favour of the predecessor-in-interest of the defendants, as an act of good management, as alleged? If so, its effect? OPD.
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judgments and decrees passed by both the courts below. 8. I have heard learned counsel for the parties and have gone through the record carefully.
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their father. The land was owned by Hardyal. It was given to his father by Hardyal. They were paying rent for the cultivation of the suit land and the tenancy was never surrendered. No suit was filed by Sandhya Devi against them. The last Galla was paid to Kulbhushan and Kuldeep etc. He has admitted that the land was under mortgage with Kuldeep and Kulbhushan etc. He was not aware that since the year 1965, plaintiff was in litigation with Kulbhushan and Kuldeep. He was also not aware that the land was got redeemed by Sandhya. He has denied the suggestion land was under cultivation of Sandhya. According to him, tenancy was being claimed to have been created by Hardyal in favour of his father, but he did not disclose as to what were the terms of the tenancy. He did not disclose when the last Galla was paid. He has deposed that they were paying Galla to Kuldeep etc. The amount of Galla has not been stated.
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Hardyal. He was not aware about the month and year of the mortgage. According to him also, the Galla was paid in the year 1992 to Kulbhushan and Kuldeep. Receipt was prepared, though DW-1 could not produce the receipt. If the receipt had been obtained, the same should have been produced before the Court.
has also admitted that land was mortgaged by Hardyal with Sardars and Mali and after his death his sons were paying rent to Sardars.
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also stated that the land was mortgaged by Hardyal with Sardars of Shamirpur but Mali’s cultivation remained uninterrupted. In the copies of jamabandis for the year 1917-18 and 1890-91, name of the persons cultivating the land has not been disclosed. According to Jamabandi for the year 1959-60 Ex.P-4, land was under mortgage with Kuldeep Singh, Kulbhushan Singh, Kuljeet Singh etc. and Mali has been described as “Gair Maurusi” tenant. It is not stated therein whether he was tenant under the mortgagor or tenant inducted by mortgagee.
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tenants before this period.
1996 (2) Sim.L.C. has held as under:
“18. Section 2 (10) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 defines "land owner" as meaning a person defined as such in the Himachal Pradesh Land Revenue Act, 1953 or the Punjab Land Revenue Act, 1887, as the case may be and shall include the predecessor or successor in interest of the land owner'. The definition of the word "land owner" as contained in section 4 (9) of the Himachal Pradesh Land Revenue Act, 1953 as well as in section 3 (2) of the Punjab Land Revenue Act, 1887 is practically the same. Both the sections provide that "land owner" does not include a tenant or an assignee of land revenue but does include a person to whom a holding revenue or of a sum recoverable as such an arrear, and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate. This definition, prima facie, does not include a mortgagee. Therefore, a person holding the land as a tenant under the mortgagee cannot be deemed to be a tenant under a landowner. Therefore, the protection which was available to the tenant inducted by the mortgagee in Bhagat Ram's case (supra), cannot be extended to the defendant in the present case.
19. Similarly in Prabhu v, Ramdeo and others, AIR 1966 SC 1721, the protection to the tenant inducted by the mortgagee was extended by virtue of section 15 of the Rajasthan Tenancy Act, 1955, which had come into force before the redemption of the mortgage by the mortgagor The statutory benefit was thus extended to the tenant inducted by the mortgagee in view of the relevant provisions of the Rajasthan Tenancy Act, 1955 and it was held that the tenant inducted by the mortgagee would become a tenant under the owner-mortgagor after the redemption of the mortgage. No such statutory protection, as stated above, is available to the
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defendant in the present case under any provision of the law as inforce at the time of the redemption of the mortgage.”
“8. On the facts of this case, it will be seen that the mortgagees were entitled to create tenancies by virtue of the mortgage deed dated 9th March 1942. However, there is nothing in the language of the mortgage deed to indicate clearly that the tenancies created by the mortgagees would be binding on the mortgagors. At the highest, after redemption, and after possession is taken, the mortgagor or mortgagors will also be entitled to receive rent in future. It will be seen that the mortgagor’s right to get back possession is expressly recognized by the mortgage deed without any clear and unambiguous language entitling tenants created by the
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mortgagees to become tenants of the mortgagors. The entitlement to receive rent in future can by no stretch be held to create a tenancy between the mortgagor and the tenants of the mortgagees. This phrase has to be reconciled with the expression immediately preceding it namely “on taking possession”. It is clear that taking of possession from the mortgagees and his tenants is completely antithetical to recognizing the mortgagees’ tenants as the mortgagors’ tenants. If the clause is to be read in the manner that the High Court has read it, the mortgagors would not be able to get back possession on redemption which would in fact be a serious interference with their right to redeem the property inasmuch as the mortgagors would have to evict such tenants after making out a ground for eviction under the Rent Act. Such ground can only be bonafide requirement of the landlord or some ground based on a fault committed by the tenant such as non-payment of rent or unlawful subletting etc. Further, such ground may never become available to the mortgagor/landlord or may become available only after many years. It has already been seen that a mortgagee continuing in possession after redemption as tenant of the mortgagor is regarded as a clog on redemption. The position is not different if the mortgagee’s tenants continue in possession after redemption. This would necessarily have to be disregarded as a clog on redemption as the right to redeem would in substance be rendered illusory. In the circumstances, the judgment of the Punjab and Haryana High Court dated 31st March 2004 is set aside. All other issues are left open and can be agitated before the High Court. It will be open to all parties to raise such pleas as are available to them in law. Considering that the cause of action in the suit arose in 1969, the High Court is requested to take up RFA No.238/1979 to decide the other issues as early as possible and preferably within six months from the date of delivery of this judgment.”
CMP No. 323/2011
Order 41 Rule 27 Code of Civil Procedure; plaintiff has
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filed the detailed reply to the same. Appellant wanted to produce on record copy of proceedings conducted by Land Reforms Officer, Kangra dealing with form No. L.R.-V under the H.P. Land Reforms Act and Rules. According to the appellant, plaintiff has admitted that defendant is tenant and had applied for redemption of land under H.P. Tenancy and Land Reforms Act. The Civil Suit was instituted on 2.3.1993 and the application filed is belated. These documents are not necessary for the adjudication of the matter.
“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
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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 & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., 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 Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
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 & Ors. (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
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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 & Ors., 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 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 comp1iance with the requirement as to recording of reasons.
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44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285; and Sant Lal Gupta & Ors. v. Modern Cooperative Group Housing Society Limited & Ors., (2010) 13 SCC 336).
45. In The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 1976 SC 2403, while dealing with the issue, a three judge Bench of this Court held as under:
“We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence.”
(Emphasis added)
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A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108.
46. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:
“It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence….. The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory.”
(Emphasis added)
In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact-situation, the order allowing such application did not vitiate for want of reasons.
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
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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. 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 & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).”
dismissed.
answered accordingly.
(Justice Rajiv Sharma), Judge.
10.12.2014 awasthi
2 issues framed by the court
Whether tenants inducted by a mortgagee acquire proprietary rights after the redemption of the mortgage.
Whether additional evidence under Order 41 Rule 27 CPC should be admitted at a belated stage in appeal.
Colour shows how this judgement treated each authority
Kanta Devi versus KhushiaReferred¶49
Kanta Devi versus Khushia, 1996 (2) Sim.L.C.
Prabhu v. Ramdeo and othersDistinguished¶49
Prabhu v, Ramdeo and others, AIR 1966 SC 1721 · Who else cites this
Thakar Singh (D) by LRs and another vs. Sh. Mula Singh (D) through LR and othersDistinguished¶49
Thakar Singh (D) by LRs and another vs. Sh. Mula Singh (D) through LR and others, 2014 (2) RCR 371
Union of India vs. Ibrahim Uddin and anotherFollowed¶59
Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148 · Who else cites this
State of Orissa v. Dhaniram LuharExplained¶74
State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794 · Who else cites this
State of Uttaranchal & Anr. v. Sunil Kumar Singh NegiExplained¶74
State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026 · Who else cites this
The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. NarayanaiahExplained¶74
The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc., AIR 1976 SC 2403 · Who else cites this
Basayya I. Mathad v. Rudrayya S. Mathad and Ors.Explained¶74
Basayya I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108 · Who else cites this
K. VenkataramiahExplained¶74
K. Venkataramiah (Supra)
2 provisions across 2 enactments
Deemanu Ram and others
Bilwa Mangal
Rajiv Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
