Ananda Gorain Vs Karlabala Dasya

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 253 of 2020

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Ananda Gorain, aged about 40 years;

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Barka Gorain, aged about 35 years;

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Chhotka Gorain aged about 35 years;

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Budhu @ Budhan Gorain; aged 32 years All sons of Late Nathu Gorain & all residents of VillagePialsola, P.O.- Kelahi, P.S.- Mihijam, Sub-Division and District Jamtara … … Appellants/Appellants/Defendants -Versus-

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Karlabala Dasya, aged about 62 years, widow of Late Binoy Gorain;

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Dhanajay Gorain, son of Late Haren Gorain, No.1 and 2 both resident of Village- Kushbedia, P.O.- Gorainala, P.S.- Mihijam, District- Jamtara;

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Basi Gorain, daughter of Late Haren Gorain, wife of Anil Gorain, resident of Village- Boira, P.O.- Salanpur, P.S.- Kulti, District- Burdwan;

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Sundi Gorain, wife of Late Haren Gorain, resident of VillageKushbedia, P.O.- Gorainala, District- Jamtara

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Damini @ Dami Bala, W/o Parimal Gorain, D/o Late Shankar Gorain, resident of Village- Bankti, P.Ο.- Kalajharia, P.S.Karmatanr, District- Jamtara

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Ramoni Gorain, wife of Kajal Gorain, Daughter of Late Shankar Gorain, resident of Village- Katapaphari, P.O.Panuria, P.S.- Baraboni, Sub-division- Asansol, DistrictBurdwan Paschim.

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Membala Gorain, wife of Bhagirath Gorain, Daughter of Late Shankar Gorain, resident of Village- Pindari, P.O.- Karmatar, P.S.- Karmatar, District- Jamtara

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Dwarika Gorain, son of Late Kanai Gorain, resident of VillageKushbedia, P.O.- Gorainala, District- Jamtara

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Satyabala Dasi, widow of Late Gendu Gorain, resident of Village- Panuria, P.O.- Panuria, P.S.- Barabani, DistrictBurdwan

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10.Paribala Dasi, widow of Late Haripada Gorain, resident of Village- Bewa, P.O.- Bewa, P.S.- Mihijam, Sub Division and District- Jamtara

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11.Monibala Dasi, widow of Late Kalipada Gorain, resident of Village- Saluka, P.O.- Sitamurhi, P.S.- Nala, District- Jamtara

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12.Gopal Gorain

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13.Jokha Gorain

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14.Dulal Gorain, No.12 to 14 all sons of Late Debu Gorain, resident of Village- Damdoha, P.O.- Rupnarayanpur, Sub Division- Asansol, District- Burdwan

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15.Gondibala Dasi, wife of Basudeo Gorain, resident of VillageGorsimulia, P.O.- Amba, P.S.- Bagdohari, Sub Division and District- Jamtara

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16.Lotibala Dasi, wife of Haru Gorain, resident of VillageNildoha, P.O.- Ladhna, P.S.- Mihijam, District- Jamtara

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17.Chhutibala Dasi, wife of Hena Gorain, resident of VillageBadalpur, P.O.- Monihari, P.S.- Nala, District- Jamtara

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18.Chani Gorain, wife of Sevak Gorain, resident of VillageNildoha, P.O.- Ladhana, P.S.- Mihijam, District- Jamtara .. … Respondents/Respondents/Plaintiffs ---

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --For the Appellants : Mr. Kaushik Sarkhel, Advocate For the Respondents :

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06 /20.01.2025 Heard the learned counsel appearing on behalf of the appellants. 2. This second appeal has been filed against the Judgment dated 27.02.2020 (Decree signed on 07.03.2020) passed by the learned District Judge-I, Jamtara in Civil Appeal No.17 of 2015 whereby and whereunder the appeal preferred by the Defendants/Appellants has been dismissed and the Judgment dated 03.03.2015 (Decree signed on 24.03.2015) passed by the learned Civil Judge (Senior Division)-III, Jamtara in Title (Partition) Suit No.63 of 2003 has been affirmed.

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3. The learned counsel for the appellants submitted that the present second appeal is fit to be admitted on the following substantial questions of law:

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(i) Whether the learned Appellate Court ought to have admitted the additional evidence by which the present appellants were trying to show that Kanhai Gorain have died on 22.11.1978 by producing the extract of the register of the burning ghat where Kanhai Gorain was cremated and by not doing so the learned Appellate Court have committed an illegality and have not appreciated the law settled by the Hon'ble Supreme Court in Plethora of decisions which clearly states that clause B of Sub-rule 1 of Order 41 Rule 27 of the CPC is the prime consideration where the appellate court have to see whether the additional evidence is requires to be admitted which will enable the court to pronounce the judgment or any other substantial cause and since the main dispute was with regard to the death of Kanhai Gorain and Nathu Gorain the said documentary evidence ought to have been admitted by the appellate court at the stage of delivering the judgment rather only on the ground that earlier against the dismissal of the petition

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under Order 41 Rule 27 the appellants have preferred an application under Article 227 of the Constitution of India which was not dismissed on merit but for default?

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(ii)Whether the learned Appellate Court have further failed to admit the additional evidence by which the appellants have produced a death certificate issued by Panchayat Sachiv, (Registrar under Birth & Death Registration Act) in the year 2016 in which the death of Nathu Gorain has been mentioned as 24.04.1986 and without admitting the same as evidence, the learned Court below has not followed the law under Order 41 Rule 27 in its letter and spirit?

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4. The learned counsel submitted that the entire case revolved around death of Kanhai Gorain and Nathu Gorain, who expired on 22.11.1978 and 24.04.1986 respectively and the defendants wanted to adduce additional evidence with regard to the dates of death by referring to the register of cremation at the appellate stage by adducing additional evidence . He submitted that the learned appellate court did not allow to adduce the additional evidence.

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5. The learned counsel relied upon the Judgment passed by Hon'ble Supreme Court reported in 2022 Livelaw (SC) 268 (Sanjay Kumar Singh Vs. The State of Jharkhand) and referred to Paragraph- 4 and 5 to submit that as an exception Order XLI Rule 27 of CPC enables the appellate court to take additional evidence in exceptional circumstances, so that the court can arrive at the findings with respect to the dispute between the parties.

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6. During the course of argument, the learned counsel for the appellants, upon a query of this Court, submitted that in the written statement, no specific date of death of Kanhai Gorain and Nathu Gorain was mentioned much less the year of their death. It was simply mentioned that at last they have died.

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7. The learned counsel submitted that the additional evidence ought to have been admitted by the appellate court, and therefore, this appeal is fit to be admitted on the aforesaid substantial questions of law.

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8. The only argument advanced on behalf of the appellants is in connection with the additional evidence which was to be adduced by the appellants before the first appellate court under Order XLI Rule 27 (b) of CPC.

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9. The learned counsel for the appellants also submitted that the application seeking to adduce additional evidence was filed in the year 2016 before the learned 1^st appellate court, but the same was rejected which was subject matter of challenge in W.P.(C) No. 2897 of 2016. However, the writ petition was dismissed as withdrawn and ultimately another petition was filed on 07.02.2020 before the learned appellate court and the appellate court rejected the subsequent petition also.

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10. After hearing the learned counsel for the appellants and upon going through the judgment passed by the learned first appellate court, this Court finds that the petition to bring additional evidence on record was dismissed by the 1^st appellate court way back in 2016 which was subject matter of challenge in the writ petition, but the writ petition was ultimately dismissed as withdrawn. Thereafter, the appellants had filed another petition for the same relief. The learned 1^st appellate court has considered this aspect of the matter and also on merits and rejected the prayer for adducing additional evidence.

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11. This Court finds that during the course of hearing, the learned counsel for the appellants also submitted that no specific date or year with regard to the death of Kanhai Gorain and Nathu Gorain was mentioned in the written statement. Once the specific date and also year of death was not mentioned in the written statement, the additional evidence to bring on record the date of death would have been beyond the pleadings of the written statement. Further, the fact remains that the prayer seeking introduction of the same additional evidence was rejected earlier by the learned 1^st appellate court and the order was challenged in the writ petition which was later dismissed as withdrawn and the order became final. Under such circumstances, the same prayer seeking adducing additional evidence of the same document was not at all maintainable.

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12. Considering the totality of facts and circumstances and the discussions made by the learned first appellate court, this Court finds that the learned appellate court has rightly rejected the petition for adducing additional evidence. The learned first appellate court has considered the plea of additional evidence and rejected the same by citing sound reasons and recorded the following findings:

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“ 17. In view of the provisions, it is apparent that the defendants/appellants knowing very well the dispute with regard to the death of aforesaid Kanai Gorain and Nathu Gorain in the case, had not filed the said documents before learned lower court. Further it appears that earlier the said petition of appellants u/o XLI, Rule 27(b) C.P.C. with regard to the death of Kanai Gorain has already been rejected by this court against which the appellants had preferred W.P.(C) No. 2897 of 2016, which was dismissed in default by the Hon'ble High Court and admittedly its restoration petition has been also dismissed by the Hon'ble High Court. It further appears that the present appeal has been filed by appellants on 22.04.2015 but the petition u/o XLI, Rule 27(b) of C.P.C. with regard to the considering the death certificate of Nathu Gorain has been filed on 07.02.2020. It further appears that appellants have admitted that the said certificate was issued on 09.02.2016 and procured by appellants in the year, 2016 but the said document has been filed by the appellants before the appellate court on 07.02.2020. The appellants have submitted that the said document was essential document but the said document 21 Civil Appeal No. 17 of 2015 has neither been filed by them before the learned lower court nor they have filed the same, soon after filing the appeal. It further appears that the said document was procured by them in the year 2016 and even then the said document has not been earlier filed before this appellate court rather it has been filed in the year, 2020 which creates doubt regarding the document and it also shows that Defendants/appellants were not due diligent in production of the said document. In Kamlam vs. Ayyasamy 2001 (7) SCC 503, the Hon'ble Apex Court has been pleased to hold while interpreting Rule 27 of Order XLI that

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“the Provisions of Order XLI, Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal …

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it does not authorise any lacuna or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.

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Thus 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 except the provision mentioned under O XLI, Rule 27 of CPC, which also provides the exceptional circumstances but in the facts and circumstances of the present case, it appears that the appellants have not been due diligent in producing the said document before learned lower court and even after procuring the said document, the same has not been filed earlier, which creates serious doubt regarding the genuineness of the said document and this court is not of opinion to allow the aforesaid document as an additional evidence sought to be adduced, in the facts and circumstances of the case and this court thinks proper to pronounce the judgment on the materials available on record and further I am of the opinion that learned lower court has rightly discussed the pleadings and evidences in view of the issues arrived between the parties and has rightly decided the suit by deciding the shares of the parties in suit properties.

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13. This Court is of the considered view that no substantial question of law is involved in the present second appeal in relation to adducing additional evidence at the first appellate stage of the case. As recorded above, no other point, except relating to adducing of additional evidence has been argued by the learned counsel for the appellants.

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14. Accordingly, this second appeal is hereby dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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Ananda Gorain v. Karlabala Dasya

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Ananda Gorain v. Karlabala Dasya

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