Dismissed

Kazi Bewa v. Rabindranath Nayak

Orissa HC27 Oct 2021RSA/596/2005

Case brief

AI extract

What is this about?

In this Second Appeal, the appellants challenged the lower appellate court's refusal to admit additional evidence (a mortgage deed) and the finding that they and the respondents were not co-sharers. The High Court held that the evidence was irrelevant and its refusal was within the trial court's discretion.

What did the court decide?

Second Appeal dismissed. Parties directed to bear their respective costs throughout.

Kazi Bewa Vs Rabindranath Nayak — Partition | Orissa HC (2021)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

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R.S.A. No.596 of 2005

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In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 18.08.2005 and 02.09.2005 respectively passed by the learned 2^nd Additional District Judge, Cuttack in Title Appeal No.109 of 1993 confirming the judgment and decree dated 18.09.1993 and 01.10.1993 respectively passed by the learned Sub-Judge, First Court, Cuttack, In Title Suit No.390 of 1983.

¶4

….
Kaji Bewa (Since Dead) & Others Appellants
-versus-

¶5

….
Rabindranath Nayak (Since Dead) Respondents
& Others
Appeared in this case by Hybrid Arrangement Arrangement
(Virtual/Physical Mode):
-
For Appellants M/s.B.N.Bhuyan, M.K.Behera
C.R. Swain, B.N. Mishra,
P.Mohanty & A.K. Rout
For Respondents - M/s.S.K. Dash, A. Dhalsamanta,
S.Das, B.P. Dhal,
A.K. Otta, A. Sahoo
E. Dash and P. Das

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CORAM: MR. JUSTICE D.DASH

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Date of Hearing : 30.09.2021 : Date of Judgment :27.10.2021

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D. Dash, J

¶9

1. The Appellants, by filing this Second Appeal, under Section 100 of the Civil Procedure Code (for short, ‘the Code’) have assailed the judgment and decree dated 18.08.2005 and 02.09.2005 passed by the learned 2^nd Additional District Judge, Cuttack in Title Appeal No.109 of 1993.

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Page 1 of 14

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// 2 //

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By the said judgment and decree, the Appeal filed by the present Appellants under section 96 of the Code has been dismissed. Thereby, the judgment and preliminary decree dated 10.09.1993 and 1.10.1993 respectively passed by the learned Civil Judge, 1^st Court, Cuttack (as it was then) in Title Suit No.390 of 1983 have been confirmed.

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2. These Appellants, being the Plaintiff and Appellants before the First Appellate Court are thus now challenging the judgment and preliminary decrees as they are not satisfied with the allotment of the shares in the properties of the Parties which not in consonance with their claim and prayer, as advanced.

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3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

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4. The Plaintiffs’ case, in short, is that they are successors-ininterest of one Govinda Nayak, son of Rahas Nayak whereas the Defendants are the successors-in-interest of Hari Nayak and Bhima Nayak, who are two brothers being sons of Fakira Nayak.

¶16

It is the case of the Plaintiff that they and the Defendants are in agnatic relationship and the suit properties described in Schedule-A, B, C and C-I of the plaint are their joint properties and, therefore, in the settlement, those have been jointly recorded in the name of predecessors-in-interest of the Plaintiffs and Defendants with further inclusion of the name of one Gundei Bewa. It is stated that on 30.07.1929, Gundei, the widow of Arjuna Nayak, one of the three sons of Fakira had sold her 1/3^rd share over Schedule-A, B and C property in favour of Hari and Bhima, the other two sons of Fakira and Govinda, sons of Rahas Nayak by registered sale deed. It is also their case that

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Page 2 of 14

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// 3 //

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Govinda had 8 anas of share over the said land when Hari and Bhima had acquired the rest 8 anas share in the Schedule-A, land measuring Ac.1.20 decimals. The Plaintiffs’ predecessors-in-interest had Ac.0.31 decimals as of their share and Gundei Bewa sold her share of rest Ac.0.89 decimals by sale deed. The Plaintiffs thus became the owner of Ac.0.75 decimals and 5 square-link. It is stated that by virtue of that registered sale deed executed by Gundei Bewa, their predecessors-ininterest, i.e, Govinda had half interest in Schedule-B & C properties and accordingly, they are entitled to that Ac.0.28 decimals in ScheduleB property and half share over Schedule-C property to the extent of Ac.1.61 decimals. The predecessors-in-interest of Defendants, however, were looking after the joint properties and sharing the issufructus with the predecessors-in-interest of the Plaintiffs. In the settlement operation, they got entire C-I schedule property recorded in their name exclusively even though their predecessors-in-interest, namely, Govinda had half share, who was ignorant.

¶20

According to them, the suit property that never been partitioned by midst and bounds amongst the co-sharer and the parties are in possession of separate parcels of properties for convenient but not in accordance with their share. The dissension having arisen amongst the parties, the Plaintiffs’ claim for partition and that being not paid any heed by the Defendants, the Suit has been filed. One important development taken place after institution of the Suit need to be mentioned at this stage is that during Suit, consolidation operation having commenced in respect of the lands under one mouza, i.e, Bidyadharpur, Objection Case No.2170/134 of 1985 came to be filed by the Plaintiffs for recording of their half share over Schedule-A property. Be that as it may, the area of Cuttack Municipality being extended covering the land in question, though he consolidation officer

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Page 3 of 14

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// 4 //

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had no jurisdiction, yet it was so decided by order dated 8.7.1986. The Plaintiff was hold to be having 1/9^th share over the land t Bidyadharpur, the finding of the Consolidation Authority is said to be without jurisdiction and wholly erroneous.

¶24

5. The Defendants have come up with the case that they are not having any agnatic relationship with the Plaintiffs who are total strangers to their family. According to them, there was joint purchase of some landed property by their predecessors-in-interest and Govinda and they had closed acquaintance. They deny the fact that the suit properties are the joint properties of the predecessors-in-interest of the Plaintiff as also their. The Plaintiff claims that Govinda had hald share over the suit property described in Schedule-A, B, C and C-I of the plaint has been refuted. Schedule-C-I property is claimed to be the exclusive properties of the Defendants as it had come to them by way of acquisition which according to them have been rightly recorded in the settlement record separately. Hari, Bhima and Arjuna, the three sons of Fakira were the original owners of Schedule-A, B an C property. In Execution Case No.110 of 1980 on the file of learned Civil Judge, Cuttack, the share of Arjuna in those property were put to auction and that was purchased by one Kalpataru Khuntia being the decree holder. The purchase was made on 19.07.2018. Despite the said purchase, he was not able to possess the property. So, he executed registered Nadabi Patra (relinquishment deed in favour of Gundei) and by that, he relinquished his interest over the auctioned and purchased properties excluding the land measuring Ac.0.04 decimals situated at Bidyadharpur area and that he sold to Hari, Bhima and Govinda and Gundei. Gundei then sold here 1/3^rd share in those joint property extending to Ac.1.07 decimals six/half squarelink in favour of Hari, Bhima and Govinda. This was by registered sale deed dated 30.07.1929 and the earlier one in favour of Hari, Bhima and

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Page 4 of 14

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// 5 //

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Govinda. The Defendatns thus say that by above sale deed, Govinda had 1/3^rd share with rest 2/3^rd share was with Hari and Bima. So, they say that the predecessors-in-interest of the Plaintiffs had 1/9th share in the suit schedule properties (A, B and C). It is next stated that the properties being in their possession for more than 12 years and since they are possessing the same as its owner exercising all the rights such as exhibiting hostile animus to the knowledge of the Plaintiffs, they have perfected title by way of adverse possession.

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6. The Trial Court on the above pleadings framed ten issues. The Trial Court having recorded the answers on those issues, has decreed the Suit in part. The preliminary decree has been passed by the learned Courts below as under:-

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“Preliminary decree has been passed by the learned courts below holding that the Plaintiffs are entitled to 1/9^th share in the properties mentioned in Ext.5 as described in schedule ‘A’, ‘B’ & ‘C’ of the plaint except plot no.844 under schedule ‘A’, which is the exclusive property of the Defendant No.1. Out of the remaining 8/9^th share, each of the Defendants 1 & 2 were made entitled to 2/9^th share, each of the Defendant No.4 and 6 were made entitled to 1/9^th share and the branch of Defendant No.7 has been made jointly entitled to 1/9^th share. So far as the properties covered under Ext.F, the plaintiffs were made entitled to 1/3^rd share; whereas each of the Defendants 1 & 2 were made entitled to 1/6^th share, each of the Defendant Nos.4 to 6 were made entitled to 1/12^th share and the branch of Defendant No.7 has been made jointly entitled to 1/12 share. Furthermore, Defendant Nos.1 and 2 were made entitled to ½ share each in respect of the properties purchased under the sale deeds, Ext.A to C as described in Schedule “C-1” of the plaint; whereas the properties purchased under the sale deeds, Ext.D and E, as described in schedule “C-1” of the plaint was held as the exclusive property of the Defendant No.1.”

¶30

In view of such decision of the Trial Court, the Plaintiffs being aggrieved had filed the First Appeal. The lower Appellate Court had finally affirmed the decision of the Trial Court in entirety.

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Page 5 of 14

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// 6 //

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7. The Appeal has been admitted on the following substantial question of law:-

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“Whether the learned lower Appellate Court illegally refused to accept the additional evidence, which was sought to be adduced by the Plaintiff-Appellants and such refusal has vitiated its judgment?”

¶35

8. I have heard Mr.B.Bhuyan, learned counsel for the Appellants as also Mr.S.K.Dash, learned counsel for the Respondents. Keeping in view the submissions made, I have carefully gone through judgments of the Trial Court as well as the lower Appellate Courty.

¶36

9. In order the answer the above substantial question of law, the decision on the particular score as has been rendered by the first Appellate Court against the Appellants is required to be judged in order to say as to whether the same can sustain or not. The lower Appellate Court had dealt the move made by the Plaintiff to adduce additional evidence extensively. The judgment of the lower Appellate Court being gone through, it is seen that the matter has been taken up for consideration by the lower Appellate Court and it has been so recorded at Paragraph-5. In view of the fact that the rival case of the parties have already been stated in great detail in the foregoing paragraphs for proper appreciation of the matter, it would be better to place the above relevant paragraph of the judgment of the lower Appellate Court.

¶37

“5.xx xx xx. Besides challenging the finding of the learned lower court the plaintiff preferred an application u/s 41 Rule 27 read with section 151 CPC to allow them to produce additional evidence by admitting a certified copy of registered mortgage deed dated 13.5.1995 as additional evidence on the ground that irrespective of due diligence the mortgage deed was not within their knowledge and could not be produced at the time of trial in the court and the same being a vital and substantive piece of evidence to establish the relationship of the parties to the suit would be helpful to the court to enable it to pronounce judgment. The appeal as well as the petition for

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Page 6 of 14

¶39

// 7 //

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additional evidence has been resisted by the respondents on a contention that the finding of the trial court was just and proper and there was no illegality or error warranting interference in the finding. The petition for additional evidence is not maintainable as the appellant was well aware of existence of such document at the time of trial and in spite of the same being admitted into evidence for argument sake, it will neither be helpful to the appellant to improve their case nor it would enable the court to pronounce its judgment in a more efficacious manner. So far the merit of the petition for additional evidence is concerned and on a close reading of the recitals of the mortgage deed, proposed to be adduced as additional evidence, it is seen that the same was executed by Arjuna Nayak in favour of Kalpataru Khuntia under which 1/3^rd share of Arjuna Nayak in the joint property of Hari, Bhima and himself was mortgaged to Kalpataru. The above fact was found in the averment of the defendants by which they disclosed that Kalpataru purchased the 1/3^rd share of Arjuna in a court auction in execution of his decree and subsequently he relinquished his interest in favour of Gandei Bewa. In view of the above, specific pleadings, it may be presumed that the Plaintiffs were aware of existence of the deed at the time of trial. Hence, I am not prepared to accept their plea that notwithstanding the exercise of due diligence such evidence was not within their knowledge for which they could not produce the document at the time of trial. Besides, the relevancy of the document and its usefulness for reaching just decision of the suit would be discussed in following paragraphs along with the evidence of the plaintiffs while deciding the merit of the appeal.

¶41

In the appeal, the argument of the parties were confined to the findings of the learned Sub-Judge in respect of issue number 5 and 6, i.e, whether the plaintiffs and defendants were at agnatic relation being descendants to a common ancestor and whether the suit properties were the joint family properties of the parties and liable for partition. To substantiate their claim of being co-sharers of the defendants the plaintiffs have mostly relied upon the oral evidence of P.Ws.1 to 3 and entries in settlement records of 1931 under Ext.2 and Ext.2/A. That apart prayer is made in this appeal stage to allow them to admit the mortgage deed referred earlier as additional evidence. Undisputedly on a close reading of the plaint, it is seen that no specific pleadings has been adduced by the

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Page 7 of 14

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// 8 //

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plaintiffs as to the identity of the common ancestor of themselves and the defendants and rather two separate tables have been shown in the plaint to indicate separate relationship between the defendants and the plaintiffs. As per the plaint Govnda Naik was son of Rahas Nayk and Rahas is sown as the son of Sunakaah Nayak in table-1 to show the relationship among the plaintiffs. Similarly, Fakira has been shown as the father of Hari, Bhima and Arjuna in table-II of the plaint to show the relationship between the defendants. It is not pleaded in the plaint that Sunakar Nayak was the common ancestor being father of Rahas Nayak and Fakira Nayak or there is any pleading that Rahas and Fakira were two brothers. Perusal of the evidence of P.W.3 (plaintiff no.5) reveals that efforts was made while recording oral evidence to establish that Sunakr was the father of Rahas and Fakira. Admittedly, there is no direct evidence to show the relationship between Fakira and Rahasa or to suggest that Sunakar had two sons namely Fakira and Rahasa. In absence of such direct evidence regarding the relationship either between the parties or their predecessors-ininterest, opinion on relationship can be determined with the aid of provisions contained in section 50 of the Indian Evidence Act. The appellants seems to have tried to establish the relationship through the oral evidence of P.Ws.1 and 2 as well as P.W.3. On a bare reading of the evidence of P.Ws.1 and 2, it is seen that there is nothing substantial in their testimony to hold that they had any specific means of knowledge on knowing that the parties are co-sharers even they have claimed to be aged about 82 years and 65 years respectively. They have admitted in their cross-examination to have not seen Rahas Nayak or Fakira Nayak and their father’s name are also not known to them. It is emerged from the cross-examination of P.W.2 that Bhima became the karta of his family after the death of Fakira whereas Govinda Nayak became the karta of plaintiff’s family; after Rahas Nayak. Though in his evidence, P.W.3 has stated that Sunakar Nayak is the father of Fakira and Rahas the same has not been pleaded in the plaint. It is brought into evidence by the respondent that in the objection case initiated before the consolidation authority, P.W.5 failed to disclose the name of Fakira and Rahasa on being crossexamined there and the above statement has been duly proved by confrontation of the certified copy of the statement made before the consolidation authorities (Ext.H). it seems refused to have made any such statement in the consolidation

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Page 8 of 14

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// 9 //

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proceeding and claimed that his statement under Ext.H in consolidation proceeding was a creation. But the learned trial court seems to have rejected the above plea on a contention that the proceeding was vitiated by some of the plaintiffs and the endorsement appearing in the certified copy of the deposition suggests that the above statement was recorded by a public officer in due discharge of his official duty and the plaintiff being a signatory to the deposition. Thus, it is seen that the plaintiffs pleadings is inconsistent with their evidence that Sunakar was the farther of Fakira and the learned trial court seems to be justified in not accepting the oral evidence of P.W.1, 2 and 3 in that regard. So far as the entries of the names of Bhima, Hari and Gandei Bewa along with Govinda Nayak in the settlement record of 1931 vide Ext.2 and Ext.2/A are concerned, it cannot be over sighted that prior to the publication of the above noted settlement records, the predecessors-in-interest of defendants Bhima and Hari acquired property jointly along with Govnda Nayak from Gandei Bewas under Ext.5. it is also adduced in the evidence on behalf of the defendants in support of their pleadings that Kalpataru sold Ac.0.04 decimals of land by a registered sale deed Ext.F to their predecessor-in-interest Hari, Bhima as well as Govinda jointly which he acquired in execution proceeding in pursuant to a decree against Arjuna Nayak. The above pleadings and evidence seems to have not been seriously challenged and assailed by the plaintiff. On a close reading of the oral testimony of D.W.1 coupled with the entries in Ext.F and Ext.5, the contentions advanced by the respondents that basing on the acquisition vide Ext.5 and Ext.F, the name of Govinda Nayak was entered in settlement record under Ext.2 and Ext.2/A seems to be sound and acceptable as it cannot be over sighted that the settlement record of 1931 were subsequent to the acquisition claimed by the plaintiffs. Besides the lands under Ext.2 an Ext.2/A covered the lands acquired in Ext.5 and Ext.F as well as other lands. If the plaintiffs case is accepted that they and the defendants were co-sharers having a common ancestor and their properties were joint without partition by metes and bounds, record of right in the previous settlement in respect of other lands than the acquired land were also expected to be jointly recorded in the name of the predecessors-in-interest of both the parties. The plaintiff has not filed any other record of rights of 1930 settlement to show that Govinda was a co-sharer of Bhima, Hari and Arjuna.

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Page 9 of 14

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Hence by virtue of the entry of the name of Arjuna in Ext.2 and Ext.2/A, a conclusion cannot be arrived that Govinda was a co-sharers of Bhima and Hari for which the Properties under Ext.2 and Ext.2/A are jointly recorded in their names. For the argument sake even if the mortgage deed filed in the appeal for its admission as evidence is taken into consideration, it is seen from the recital of the same that nothing has been specifically mentioned except mentioning Govinda Nayak as a sarkidar to suggest that the suit properties or any other properties were joint properties of Bhima, Hari, Arjuna and Govndina Nayak. On the other hand, conveyance of property by Gandei Bewa and Kalpatartu Khuntia are taken into consideration along with the deed of the mortgage filed in this appeal, it can safely be concluded that since the parties were in separate in properties in spite of jointness of the record Arjuna Nayak mortgaged his share of 1/3^rd in the joint properties of himself and his brothers in favour of Kalpataru Khuntia and subsequently Gandei Bewa could be able to transfer her 1/3^rd share in Ext.5. Furthermore, on a close reading of Ext.5, which is a document of the plaintiff it is evident that the properties described under Ext.5 including the share of Gandei Bewa transferred in favour of Bhima, Hari and Govinda belonged to defendants branch and Govninda Nayak being a vendee seems to be unequivocally acknowledged that those properties never belonged to the plaintiffs branch at any point of time earlier to execution and registration of the said sale deed Ext.5. In view of the above fact and circumstances, the learned Sub-Judge is correcting in arriving a conclusion that the plaintiffs and the defendants are members of different families and the properties in the suit are not their joint properties is correct and justified. Hence, by admitting the mortgage deed as additional evidence, cannot also improve the plaintiffs’ case when it has specifically failed to show that other than the purchased properties the branches of both the families were recorded jointly in respect of any portion of land prior to 30.07.1929.”

¶51

(EMPHASIS SUPPLIED)

¶52

10. Order 41 Rule 27 1(aa) of the Code reads as under:-

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“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.”

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Page 10 of 14

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// 11 //

¶56

The above position makes it clear that the party can seek liberty to adduce additional evidence at the appellate stage, but the same is not be granted as routine. Permission would be granted only when it is found that the evidence sought to be adduced had not been adduced at the stage of trial despite exercise of due diligence and there was no occasion for adduction of such evidence as it was not within the knowledge of the party in whose favour it stands and, therefore, it to be produced at the appellate stage.

¶57

In Case of Mahavir Singh & Others –V- Naresh Ch. And Others; 2001 (I) OLR (SC) 689, it is said that:-

¶58

“Before we proceed further we would like to refer to the scope of an application under Order XLI, Rule 27 CPC. Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27 CPC. Principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. The scope of Order XLI, Rule 27 CPC was examined by the Privy Council in Kesowji Issur v. G.I.P.Railway, AIR 1931 PC 143, in which it was laid down clearly that this rule alone can be looked to for taking additional evidence and that the court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order XLI, Rule 27 CPC envisages certain circumstances when additional evidence can be adduced:

¶59

(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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Page 11 of 14

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// 12 //

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(ii) 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

¶63

(iii) 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.

¶64

In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific laboratory from which examination is sought to be made itself was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression to enable it to pronounce judgment has been subject of several decisions including Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence [ See : The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008]. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words or for any other substantial cause must be read with the word requires, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kesowji Issur v. G.I.P.Railway [supra]. It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, could have interfered with such an order, particularly when the whole appeal is not before the court. It is

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Page 12 of 14

¶66

// 13 //

¶67

only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this Court in Gurdev Singh & Ors. vs. Mehnga Ram & Anr., 1997 (6) SCC 507, in which the scope of exercise of power under Section 115 CPC on an order passed in an application filed under Order XLI, Rule 27 CPC was considered. When this decision was cited before the High Court, the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order.

¶68

11. The move of the Plaintiff before the first Appellate Court was to adduced the certified copy of the registered mortgage deed dated 13.05.1995 as additional evidence on the ground that despite due diligence, that could not be produced during the Suit being not within their knowledge. This evidence is said to be having great impact on the establishment of the relationship of the parties so as to enable the Court to decisively answer the issue in adjudicating the dispute. The lower Appellate Court besides ruling on the technical objections raised by the Defendants appears to have also touched upon the merit of said evidence sought to be adduced as additional evidence in going to judge as to what impact it has over the dispute in order to decide whether it is needed for just decision of the Suit. For the purpose, it has gone through the recitals of the said document sought to be adduced as additional evidence. This Court has also gone through the recitals of the said document carefully and having given anxious consideration over the matter, it is seen that nothing finds mention specifically in the said document so as to draw an inference that Govinda was a co-sharer of

¶69

Page 13 of 14

¶70

// 14 //

¶71

Bhima and Hari nor any hint is so provided therein. The document simply described the status of Govinda and Sarkidar suggesting that the suit properties and other properties were the joint properties of Bhima, Hari, Arjuna and Govinda. The First Appellate Court has further taken note of the conveyance of property by Gundei Bewa and Kalpataru Khuntia along with the said deed of mortgage. The conclsuion has been recorded as under:-

¶72

“It can be safely concluded that since the parties were in separate in properties in spite of jointness of the record, Arjuna Nayak mortaged his share of 1/3^rd in the joint properties of himself and his brother in favour of Kalpataru, which subsequently came to the hands of Gundei.”

¶73

This, it is found that the lower Appellate Court did commit no mistake in rejecting the move of adduction of additional evidence as prayed for by the Plaintiff in that First Appeal. The grounds of rejection is not confined to the technical one as to lack of due diligence but also on merit that it would have no impact on the controversial issue in impressing or appreciating the Court to take a contrary view on the relationship of the parties.

¶74

The aforesaid discussion and reasons thus provide answers to the substantial question of law against the case of the Appellants (Plaintiffs)

¶75

12. In the result, the Appeal stands dismissed. The Parties are directed to bear their respective cost throughout.

¶76

(D. Dash) Judge

¶77

Basu

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Page 14 of 14

Kazi Bewa v. Rabindranath Nayak

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Kazi Bewa v. Rabindranath Nayak

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