Allowed

Ghanshyam and Anr. v. Smt. Kalawati Devi and Anr.

Rajasthan HC3 Apr 2024CSA/188/1999

Case brief

AI extract

What is this about?

Second appeal against dismissal of defendants' first appeal in a possession and injunction suit over an encroachment of 1.5x5 feet. The first appellate court had decided the appeal without disposing the defendants' Order 41 Rule 27 CPC application for additional evidence. The High Court allowed the appeal and remanded the matter to the District Judge.

What did the court decide?

Judgment dated 30.01.1999 in Civil Regular Appeal No. 22/1998 set aside; matter remitted to District Judge, Sawai Madhopur for fresh disposal within three months.

Ghanshyam and Anr. Vs Smt. Kalawati Devi and Anr. — Property and Title | Rajasthan HC (2024)

¶1

[2024:RJ-JP:26815]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Second Appeal No. 188/1999

¶4

Ghanshyam S/o Shri Rodu Lal, Mahajan Died During Pendency Of Appeal, Plot No.97, Bal Mandir Colony, Sawai Madhopur(died during pendency of appeal) 1/1. Jayant Kumar Son of Ghanshyam Mahajan, R/o Plot no. 97, Bal Mandir Colony, Sawari Madhopur.

¶5

Smt. Ayodhya W/o Shri Ghanshyam, Mahajan, Plot No.97, Bal Mandir Colony, Sawai Madhopur

¶6

----Appellants

¶7

Versus

¶8

Smt. Kalawati Devi W/o Shri Ram Prasad, Plot No.105, Bal Mandir Colony, Sawai Madhopur

¶9

Ram Prasad S/o Shri Bajrang Lal, Plot No.105, Bal Mandir Colony, Sawai Madhopur

¶10

Pankaj Kumar S/o Late Shri Ghanshyam, Mahajan, Plot No.97, Bal Mandir Colony, Sawai Madhopur

¶11

----Respondents

¶12

For Appellant(s) : Ms. Sonal Singh & Mr. Arpit Rathore for Mr. Alok Garg For Respondent(s) : Mr. Manoj Sharma Mr. Ram Niwas Meena

¶13

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 03/04/2024

¶14

Instant Civil Second Appeal is preferred by appellants defendants aggrieved from judgment dated 30.01.1999 in Civil Regular Appeal No. 22/1998 passed by learned District Judge, Sawai Madhopur whereby appeal preferred by appellants defendants aggrieved from judgment and decree dated 12.02.1998 in civil suit no. 64/1997 passed by learned Additional Civil Judge (Senior Division) Sawai Madhopur was dismissed and decree was upheld.

¶15

The facts giving rise to instant second appeal in brief inter alia are that the plaintiffs respondents have instituted a civil suit for possession, permanent injunction on 13.05.1987 against defendants Ghanshyam Gupta and his wife for alleged

[2024:RJ-JP:26815]

[CSA-188/1999]

(2 of 6)

encroachment by the defendants appellants on 11.05.1987. The appellants defendants had contested a suit and the trial court on the basis of pleadings of the parties had framed five issues. The plaintiffs have examined four witnesses and submitted five documents whereas defendant has examined three witnesses. The trial court has decided issue no.1 and 2 in favour of plaintiffs but issue no. 3 and 4 against the defendants. The trial court has decreed the civil suit of the plaintiff against the defendants and held that the defendants have encroached 1.5x 5 feet land of plaintiffs for which the plaintiffs are entitled for possession. Further, the defendants are restrained to disturb possession of plaintiff.

¶20

Aggrieved from aforesaid the appellant defendants have preferred an appeal under Section 96 of CPC and the same was dismissed on 30.01.1999. The application under Order 41 Rule 27 CPC was also filed along with additional documents but same was not disposed of by the first appellate court. The appellants defendants had filed the instant second appeal and on 06.12.1999, at the time of admission following substantial questions of law were framed by the Court:

¶21

“(i) Whether in the facts and circumstances of the case the learned appellate court below is justified in dismissing the appeal without being decided the application u/o 41 Rule 27?

¶22

(ii) Whether in the facts and circumstances of the case the learned courts below are justified in decreeing the suit of the plaintiff of demolition and injunction of 1 ½ ft. x 5 ft. without being considered whether the damages can be adequate?

¶23

(iii) Whether in the facts and circumstances of the case the learned courts below are justified in decreeing the suit without there being any

[2024:RJ-JP:26815]

[CSA-188/1999]

(3 of 6)

evidence- of the purchase, with regard to the demarcation of the plot, approval for the construction, site map, sale deed and boundaries whereas the burden to prove the same is on the plaintiff?

¶28

(iv) Whether in the facts and circumstances of the case the learned courts below are justified in decreeing the suit without being considered that the appellants have constructed the plot prior to the construction of the plot by the plaintiffs and without considering the other relevant facts and circumstances?

¶29

(v) Whether in the facts and circumstances of the case the learned courts below are justified in decreeing the suit without being considered the material contradiction in the evidence to the plaint and without drawing adverse inferences on account of non-production of the best available evidence?

¶30

(vi) Whether in the facts and circumstances of the case the learned courts below are justified in decreeing the suit by misreading the evidence?”

¶31

Learned counsel for appellant while relying upon judgments of Hon’ble Supreme Court in case of Satish Chandra Vs. Raj Kumar MANU/SCC/1337/2021, Namdev Vs. Tuka Ram Civil Appeal No. 1585/2008 and Sanjay Kumar Vs. State of Jharkhand (Civil Appeal No. 1760/2022) submitted that the appellant defendants had filed an application under Order 41 Rule 27 CPC for consideration of additional evidence but the appellate court without adjudication or consideration of aforesaid application had proceeded to decide the first appeal. She also submitted that the judgment of the trial court suffers from several illegalities and these illegalities were pointed out before the first appellate court but the appellate court has decided the issues in a mechanical

[2024:RJ-JP:26815]

[CSA-188/1999]

(4 of 6)

manner. She also submitted that the suit was barred by limitation as same was filed only on illusory grounds but the appellate court has failed to consider the aforesaid. She also submitted that nondisposal of application while deciding appeal has caused a serious prejudice to the appellant, therefore, this appeal is liable to be allowed and the matter is required to be remanded for proper adjudication.

¶36

Aforesaid contentions were opposed by learned counsel for respondent on the ground that it was duty of the appellant to point out pendency of application before the appellate court. He also submitted that the appellate court has not committed any error, if it has not decided any application at the time of adjudication of first appeal. He also submitted that he has no objection in case the matter is remitted back for disposal within a specific time frame.

¶37

Considered the submissions of learned counsel for the parties and perused the entire record. 7. A perusal of record of first appellate court reflects that an application under Order 41 Rule 27 CPC was filed by the appellant defendant on 21.08.1998. Along with this application one document was also filed. A reply was also filed on behalf of respondent plaintiff. In the application itself, a prayer is made to admit document in evidence.

¶38

Learned appellate court has decided the appeal on 30.01.1999 and perusal of the judgment reflects that the application under Order 41 Rule 27 CPC was neither considered nor decided.

[2024:RJ-JP:26815]

[CSA-188/1999]

(5 of 6)

The question as to how the application filed under Order 41 Rule 27 of CPC in the appeal could be decided by the first appellate court remains no more res integra and same was already decided by Hon’ble Supreme Court in case of North Eastern Railway Administration Gorakhpur Vs. Bhagawan Singh (Dead) by LRs (2008) 8 SCC 511, Chemical Vs. Surendra Oil and Mills (Refineries) and Ors. (2010) 8 SCC 423 and Corporation of Madras and Anr. Vs. M. Parasarthi and Ors. (2018) 9 SCC 445.

¶43

In case of Sanjay Kumar Singh Vs. State of Jharkhand (supra) , Hon’ble Supreme Court while considering the provision of Order 41 Rule 27 CPC held that the general principle is that the appellate court should not travel outside the record of the trial court and cannot take any evidence in appeal but under Order 41 Rule 27 CPC, the appellate court is empowered to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence if conditions laid down in the rule are found to exist and the parties are not entitled, as of right to the admission of such evidence. In case of Satish Chandra (supra), Hon’ble Supreme Court has considered appeal wherein without disposal of application under Order 41 Rule 27 of CPC, appeal was dismissed. It was held that Section 107 of CPC carves out an exception which enables the appellate court to take additional evidence subject to condition as prescribed under Order 41 Rule 27 CPC. The dismissal of main appeal without deciding the application for additional evidence would result in miscarriage of justice as the first appellate court was last court for facts.

[2024:RJ-JP:26815]

[CSA-188/1999]

(6 of 6)

In case of Namdev Vs. Tuka Ram (supra), Hon’ble Supreme Court has considered situation wherein the first appellate court without deciding the application under Order 41 Rule 27 CPC has disposed of the appeal.

¶48

Having considered the law over the issue as raised before us, it is apparent on record that without deciding the application under Order 41 Rule 27 CPC the first appellate court has decided the appeal and same has caused miscarriage of justice. 13. Considering the discussion made hereinabove, the appeal is liable to be allowed at this stage and after setting aside the judgment of the first appellate courts, the matter is required to be remanded back to the first appellate court for fresh decision, therefore, without expressing any opinion on issue nos. 2 to 6 the matter is required to be remitted back to the first appellate court on substantial question no.1.

¶49

In view of aforesaid, the instant second appeal is hereby allowed and the judgment dated 30.01.1999 in civil first appeal no. 22/1998 passed by learned District Judge, Sawai Madhopur is hereby set aside and the matter is remitted back to learned District Judge, Sawai Madhopur for disposal of appeal and application under Order 41 Rule 27 CPC in accordance with law.

¶50

The parties are directed to appear before the learned District Judge on 15.07.2024. The appellate court is directed to decide matter within a period of three months after receipt of the record. 16. Misc. application, if any, stands disposed of.

¶51

No order as to costs.

¶52

(ASHOK KUMAR JAIN),J

¶53

CHETNA BEHRANI /27

Ghanshyam and Anr. v. Smt. Kalawati Devi and Anr.

Case brief

What is this about?

What did the court decide?

Ghanshyam and Anr. v. Smt. Kalawati Devi and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Abdul Jabbar Vs State and Ors.

Mukesh Goyal Son of Shri Shivshankar Goyal, Vs Rajesh Gehlot Son of Shri Ramchadnra Gehlot

Rajesh S/O Sh. Ramvilas, Vs 1/1. Gulab Bai W/O Puranmal

Milap Chand Son of Shri Moti Chand, Vs Shri Vimal Chand Jain Son of Shri Moti Chand Jain

Gopi and Ors. Vs Ganga Ram and Ors.

Pratap Son of Ram Chandra, Vs Bhawani Shankar Son of Laxman