Lok Nath Jaiswal Vs Kedar Nath Jaiswal

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 324 of 2018

Lok Nath Jaiswal S/o Late Lal Bihari Lal, aged about 62 Years, resident of Parwati Bhawan, Rangamatia, Near Q.No. I/M-891, Saharpura, P.O. & P.S.- Sindri, District-Dhanbad

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… … Appellant/Respondent/Plaintiff

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-Versus-

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Kedar Nath Jaiswal S/o Late Lal Bihari Lal

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Raj Kumar Jaiswal S/o Late Lal Bihari Lal

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Ranjit Jaiswal S/o Kedar Nath Jaiswal All residents of Parwati Bhawan, Rangamatia, Near Q.No,I/M-891, Saharpura, P.O. & P.S.- Sindri, District- Dhanbad

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… … Respondents/Appellants/Defendants

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Manjul Prasad, Sr. Advocate : Mr. Arbind Kr. Sinha, Advocate : Mr. Baban Prasad, Advocate : Mr. Akhouri Prakhar Sinha, Advocate : Mr. Ankit Rohan, Advocate For the Respondents :

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08 /06.01.2025 Heard learned counsel appearing for the appellant.

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2. This second appeal has been filed against the judgment and decree dated 31.05.2018 (Decree sealed and signed on 14.06.2018) passed by the learned District Judge-I, Dhanbad in Civil Appeal No. 66 of 2017 whereby the judgment and decree dated 06.06.2017 (Decree sealed and signed on 15.06.2017) passed by learned Civil Judge (Senior Division)-VI, Dhanbad in Title Suit No.123 of 2009 has been reversed.

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3. The learned counsel for the appellant submitted that the matter arises out of Title Suit No.123 of 2009 seeking recovery of possession of the suit property. The plaintiff had asserted that the defendants were in permissive possession of the suit property. The suit was decreed by the trial court. The defendants filed Civil Appeal No.66 of 2017 and the decree in the title suit has been set aside on the ground that Title Eviction Suit No.49 of 2002 filed by the plaintiff against the defendants was pending and therefore, the stand taken by the plaintiff in the Title Eviction Suit No. 49 of 2002 seeking eviction under the

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building control laws on the ground of default in payment of rent being inconsistent with the plea raised by the plaintiff in the title suit asserting that the defendants were in permissive possession of the suit property.

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4. The learned counsel further submitted that a plea was raised before the learned trial court in the plaint itself that a petition was filed seeking withdrawal of the title eviction suit, but the same was not withdrawn by that time, as the defendants had not filed their response to that application seeking withdrawal of the title eviction suit. It is submitted that in the present case, one I.A. No.9077 of 2023 has been filed seeking to adduce additional evidence before this Court by stating that the title eviction suit was permitted to be withdrawn vide order dated 01.07.2009, which was certainly passed after the filing of the present suit.

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5. The learned counsel submitted that in the impugned judgment passed by the first appellate court, it has been recorded that at the time of passing of the judgment in the title suit, the title eviction suit filed by the plaintiff bearing Title Eviction Suit No.49 of 2002 was still pending. The learned counsel submitted that the interlocutory application seeking to lead additional evidence reveal that title eviction suit was withdrawn as back as on 01.07.2009.

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6. However, during the course of hearing, it is not in dispute from the side of the appellant that the order permitting withdrawal of title eviction suit was not brought on record before the learned first appellate court. It is submitted that to bring the order of withdrawal on record, the interlocutory application for additional evidence has been filed before this second appellate court.

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7. This Court finds that the plaintiff had filed the suit for recovery of possession by directing the defendants to vacate the portion of the house mentioned in Schedule B and C of the plaint which were part of the Schedule A property. The plaintiff and Defendant Nos. 1 and 2 are own brothers and Defendant No. 3 is the nephew of the plaintiff.

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8. It was the case of the plaintiff that the entire property mentioned in Schedule A of the plaint was under the exclusive title and possession of the plaintiff by virtue of registered sale deed dated 25.10.1972 from Rama Devi and the plaintiff had constructed a double storied building by taking loan from the provident fund and from his employer. After construction, he permitted his three brothers to remain in a portion of Schedule A of the house as gratuitous licensee and later on, Defendant No.3 requested the plaintiff to permit him to live in Schedule A house for some time and the plaintiff granted the permission. The portion of the property under possession of Defendant Nos. 1 and 3 has been shown in Schedule B of the plaint and the portion of the property occupied by Defendant No.2 has been in Schedule C of the plaint.

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9. Further case of the plaintiff was that after some time, the defendants started claiming title and interest over the property by stating that the property was purchased jointly by the plaintiff and the defendants. The Defendant No.1 had filed a partition suit being Title (P) Suit No. 58 of 1999 against the plaintiff and during the pendency of the partition suit, the plaintiff also filed a suit bearing Title (Eviction) Suit No. 49 of 2002 in connection with the suit property on the ground that Defendant No.1 had stopped paying monthly rent to the plaintiff and the Defendant No.1 took a plea that he was occupying the portion of the Schedule A property in the capacity of owner of the property.

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10. The title partition suit was dismissed by judgment dated 26.02.2009 holding that Schedule A property was not the joint property, rather it was exclusive property purchased by the plaintiff and with respect to Title (Eviction) Suit No. 49 of 2002, the plaintiff had filed a withdrawal petition, but by the time of filing of the present suit, the withdrawal of Title (Eviction) Suit No. 49 of 2002 was not permitted and ultimately in the light of the judgment passed in Title (P) Suit No. 58 of 1999, the plaintiff filed the present suit for recovery of possession being Title Suit No.123 of 2009. The defendants filed

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written statement in the present suit by taking numerous preliminary objections including the point of maintainability, non-joinder of parties. etc.. It was asserted by the defendants that it was not true that the property was exclusively purchased by the plaintiff only, rather it was joint family property. However, they accepted that the suit property was standing in the name of the plaintiff alone by virtue of the registered sale deed 25.10.1972, but asserted that all the brothers had contributed at the time of construction of the house and the building was constructed out of joint fund. The story of paying rent by Defendant No.1 to the plaintiff with respect to the suit property was denied. The Defendant No.1 admitted that he had filed Title (P) Suit No. 58 of 1999 against the plaintiff and his brothers seeking partition of the suit property which was dismissed on 26.02.2009 against which the Title Appeal No.57 of 2009 was filed before the District Judge which was still pending. The defendants took a stand that the defendants were not the licensees.

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11. The following issues were framed by the learned trial court:

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1. Is the suit as framed maintainable?

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2. Whether the plaintiff has valid cause of action for the present suit?

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3. Whether the suit is barred by the law of limitation and U/s 11 of C.P.C.?

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4. Whether the plaintiff is entitled for a decree of recovery of possession over Schedule A, B and C property against the defendants?

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5. Whether the plaintiff is entitled for any other relief or reliefs?

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12. The plaintiff produced only one witness i.e. himself who was examined as PW-1 and also produced documentary evidences. The defendants produced four witnesses and also produced documentary evidences. The Issue No. 4 was taken up by the learned trial court at the first instance and the judgment passed in Title Appeal No. 57 of 2009 arising out of Title (P) Suit No. 56 of 1999 pronounced on 30.06.2015 was also produced before the trial court.

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13. The learned trial court held that the judgment and decree passed in Title Appeal No. 57 of 2009 had become final which proved that the plaintiff in the present case was the exclusive owner of the property. It was also observed that the defendants although produced oral and documentary evidences to establish that the suit property was a joint family property and that the plaintiff alone was not capable to construct a building over the suit land, but the court was of the view that on the touchstone of preponderance of probability, the case was in favour of the plaintiff and held that since the plaintiff is the exclusive owner of the suit property, there was no legal impediment in recovery of possession over the property mentioned in Schedule A, B and C of the plaint and accordingly, Issue No. 4 was decided in favour of the plaintiff and against the defendants. The Issue No. 3 as to whether the suit was barred by law of limitation and under Section 11 of CPC was not put forward or pressed by either party.

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14. So far as the learned first appellate court is the concerned, the first appellate court recorded the admitted facts borne out of the record in Paragraph-11 which is quoted as under: -

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“ 11. Before going to the details of evidence, some of the admitted fact is that:

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1) Appellate no.1 and 2, who are defendants in the original suit, are own brothers of the plaintiff/respondent and appellate no. 3 is nephew of the plaintiff/respondent.

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2) The other admitted fact is that defendant no.1/appellant no.1 has filed partition suit bearing Title (Partition) Suit No. 58 of 1999 against the appellant and also during the pendency of that partition suit, the plaintiff has filed Title (Eviction) Suit No. 49 of 2002 for evicting of his portion of his house on the ground that defendant no.1 has stopped paying monthly rent and the Title (Partition) Suit No. 58 of 1999 of the appellant/defendant was dismissed on 26.2.09 holding that schedule A property is not joint property, but the Title (Eviction) Suit No. 49 of 2002 is still pending at the time of impugned judgement before the learned trial court

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and the withdrawal petition has been filed, but it was not permitted because defendant no.1 has filed rejoinder.”

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15. The first appellate court also recorded in Paragraph-12 of the judgement that the plaintiff was seeking recovery of possession of Schedule B and C property on the ground that the defendants were in permissive possession of the property. In Paragraph-13, it was recorded that Title (Eviction) Suit No. 49 of 2002 was also pending against the defendants on account of default in payment of rent and recorded that the plaintiff was seeking eviction on two different grounds in the two suits. The learned appellate court framed the following points for determination:

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I) Is the suit as framed maintainable? II) Whether the plaintiff has valid cause of action for the present suit?

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III) Whether the plaintiff is entitled for a decree of recovery of possession over Schedule A, B and C property against the defendants?

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IV) Whether there is any illegality in the impugned judgment or not?

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16. The learned first appellate court recorded that PW-1 who is the plaintiff himself has stated in his examination-in-chief that the defendants are his renters and for default of rent, he has filed Title (Eviction) Suit which is pending. The learned first appellate court recorded that the plaintiff is totally confused with respect to the ground on which he has filed the suit for recovery of possession and on what capacity the defendants were living in the house, as monthly renter or as licensees. The defendant witnesses supported the case that these properties were joint properties. The learned first appellate court also took into consideration the fact that Title (P) Suit No. 58 of 1999 filed by the Defendant No.1 seeking partition of the suit property was dismissed on the ground that there was no unity in the title between the parties. The learned first appellate court held that dismissal of the partition suit does not mean that the plaintiff automatically gets exclusive right and title over the property. The learned first appellate

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court also recorded that the plaintiff never claimed that the plaintiff was the exclusive owner of the property because the plaintiff never sought the relief for declaration of right, title in connection with the property and thus held that the decision of the learned trial court that the plaintiff was the exclusive owner of the property was beyond the pleadings and beyond the relief and beyond the issue. The learned first appellate court was of the view that such a relief could not have been granted without filing a separate suit seeking declaration of right, title and interest which was not prayed in the present suit and accordingly, held that the Issue No. 4 was not properly decided by the learned trial court. The learned first appellate court also recorded that the plaintiff was confused as to whether the defendants were renter or were in permissive possession or gratuitous licensees and for this purpose, the evidence of PW-1 was considered who stated that the Defendant No.1 was in his house on rent and during examination-in-chief, PW-1 himself has not specifically stated that on what capacity, the defendants were in possession of the property, either as renter or as permissive possession or gratuitous licensees.

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17. This Court finds that the first appellate court has considered the materials on record, particularly, the evidence of PW-1 and recorded a finding that the plaintiff himself was confused under which capacity the defendants were living on the property, as renters or licensees. The learned first appellate court has recorded that even as per oral evidence of the plaintiff, there was no scope for holding that the plaintiff was the exclusive owner of the property, as no such declaration was sought for. The first appellate court was of the view that merely because the earlier suit in connection with title partition was dismissed holding that there was no unity of title, the same did not mean that the plaintiff was the exclusive owner of the property.

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18. This Court finds that the learned first appellate court has considered the materials on record and has come to a definite finding particularly with regard to the confused state of mind of the plaintiff concerning the status of the defendants and apparently the plaintiff

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was unable to prove his own case with regard to the status of the defendants as to whether the defendants were tenants or licensees or they were in permissive possession and the plaintiff having not sought any declaration of right and title over the property, the exclusive title of the plaintiff could not have been declared by the trial court. No illegality or perversity as such has been pointed out by the learned counsel for the appellant with regard to the aforesaid findings recorded by the learned first appellate court. This court is of the considered view that no substantial questions of law is involved in this second appeal.

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I.A. No. 9077 of 2023

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19. So far as the additional evidence at second appellate stage being Interlocutory Application No. 9077 of 2023 to bring on record the order of withdrawal of Title (Eviction) Suit No. 49 of 2002 is concerned, this Court finds that admittedly Title Suit No. 123 of 2009 was filed during the pendency of Title (Eviction) Suit No. 49 of 2002. Title (Eviction) Suit No. 49 of 2002 was withdrawn vide order dated 01.07.2009. The title suit in the present case was filed on 5^th May 2009, but there is no explanation from the side of the plaintiff as to why the document which are sought to be inserted through interlocutory application by way of additional evidence was not brought before the learned courts at the stage of trial and is sought to be introduced for the first time through interlocutory application at the appellate stage.

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20. The Hon’ble Supreme Court in the judgment reported in (2015) 17 SCC 713 (A. Andisamy Chettiar v. A. Subburaj Chettiar) has held that generally parties are not entitled to produce additional evidence, whether oral or documentary, at appellate stage unless: -

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(i) the trial court refused to admit evidence which ought to have been admitted:

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(ii) the party could not produce evidence at the trial stage inspite of his due diligence: and

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(iii) when the appellate court requires any document or witness for pronouncement of judgment or for any other substantial cause.

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21. The Hon’ble Supreme Court in the aforesaid judgment has held that parties cannot be allowed to fill lacunae at appellate stage. The meaning of the term substantial cause has been explained by the Hon’ble Supreme Court in the Judgment reported in (2012) 8 SCC 148 (Union of India -vs- Ibrahim Uddin and another) wherein in Paragraph- 36 to 49, it has been held that an application for taking additional evidence on record at belated stage cannot be filed as a matter of right and the court can considered such application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevancy of the document in respect of the issues involved in the case and the circumstances under which such 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 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.

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22. This Court finds that none of the permissible grounds for adducing additional evidence at appellate stage has been satisfied by the appellant. Further, this Court also does not require the document sought to be adduced by way of additional evidence to pronounce the judgement. Withdrawal of the title eviction suit may not have any bearing in the present case in view of the fact that the appellate court has reversed the finding of the learned trial court by citing more than one reason including that the plaintiff himself was confused as to

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whether the defendants were living on the suit premises as tenants or they were living as licensees and also the fact that the plaintiff never claimed any declaration of title with respect to the suit property, still the trial court held that the plaintiff was the exclusive owner of the suit property.

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23. In view of the aforesaid circumstances, this Court is of the view that neither the belated filing of additional evidence has been explained by the appellant, nor the document sought to be produced as additional evidence is required by this Court to decide this appeal. Accordingly, I.A. No. 9077 of 2023 seeking to adduce additional evidence at this second appellate stage is dismissed.

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24. In view of Paragraph-18, this second appeal is dismissed.

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(Anubha Rawat Choudhary, J.)

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Binit/Rakesh

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Lok Nath Jaiswal v. Kedar Nath Jaiswal

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Lok Nath Jaiswal v. Kedar Nath Jaiswal

Case brief

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