28/01/2025 1 - Bisanpal S/o Heeraram, Aged About 50 Years R/o Village Dhurrabandha, Tahsil v. 1 - Kailash
Case Details
1 2025:CGHC:4932-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 467 of 2019 Judgment Reserved on : 16/12/2024 Judgment Delivered on : 28/01/2025 1 - Bisanpal S/o Heeraram, Aged About 50 Years R/o Village Dhurrabandha, Tahsil Bhatapara, District Baloda Bazar Bhatapara Chhattisgarh,.........(Defedant) 2 - (Died And Deleted), Minor, Tilokan Pal As Per Honble Court Order Dated 12-10-2023. 3 - Omkumari W/o Bisanpal, Aged About 36 Years, R/o Village Dhurrabandha, Tahsil Bhatapara, District Baloda Bazar Bhatapara Chhattisgarh,............(Defedant) …...Appellants/ Defendant versus 1 - Kailash S/o Bisanpal, Aged About 31 Years R/o Village Rajdhar, Tahsil Bhatapara, District Baloda Bazar Bhatapara Chhattisgarh. 2 - Punaram S/o Bisanpal, Aged About 28 Years R/o Village Rajdhar, Tahsil Bhatapara, District Baloda Bazar Bhatapara Chhattisgarh. 3 - Dhaneshwari S/o Bisanpal, Aged About 35 Years R/o Village Rajdhar, Tahsil Bhatapara, District Baloda Bazar Bhatapara ,chhattisgarh. 4 - State Of Chhattisgarh Through The Collector Baloda Bazar Bhatapara Chhattisgarh. .....Respondents/ Plaintiffs 2 For Appellants : Mr. H.B. Agrawal, Sr Advocate with Ms. A. For Respondent Nos. 1 to 3 For Respondent No.4/State Sandhya Rao, Advocate. : Mr. Arvind Shrivastava, Advocate : Mr. Devesh G. Kela, Panel Lawyer Hon'ble Smt Justice Rajani Dubey & Hon’ble Shri Justice Bibhu Datta Guru (C A V Judgment) Per Rajani Dubey, J 1. The defendants/appellants herein have filed this appeal being aggrieved by judgment and decree dated 09.08.2019 (Annexure A-1) passed by 1st Additional District Judge, Bhatapara, District Baloda Bazar - Bhatapara (C.G.), in Civil Suit No. 13A/2016, whereby the suit filed by the plaintiffs/respondent Nos. 1 to 3 herein for declaration of title, permanent injunction, partition, possession and declaration of sale deed dated 29.04.2016 as null and void, was partly decreed. The parties to this appeal shall be referred herein as per their description before the learned
Facts
trial Court. 2. The case of the plaintiffs, in brief, is that the land bearing Khasra Nos. 72/5, 129/3, 131/2, 132/2, 178/3, 385/3, 397/4, 454/2, 524/2, 541/5, 583/7, 584/2, 586/5, area 0.026, 0.150, 0.090, 0.206, 0.113, 0.071, 0.051, 0.069, 0.173, 0.317, 0.101, 0.156, and 0.124 hectare, total Khasra No. 13, total 3 area 1.655 hectare, P.H.No. 16, situated at village Rajadhar, Tahsil Bhatapara is recorded in the revenue records in the name of defendant No. 01, which is the ancestral property of the plaintiffs. The said property was given to defendant No.01 by his father in partition, which is the ancestral property of the plaintiffs and defendants. Defendant No. 01 has purchased other agricultural land from the income of the said ancestral property. Defendants Bisanpal, Tilokanpal and Omkumari lived jointly and are husband-wife and, in order to affect the rights of the plaintiffs, a formal deed without consideration was executed on 29-04-2016 by the defendant Bisanpal in favour of the defendant minor Tilokan and Omkumar with the intention of usurping their ancestral land bearing Khasra No. 75/5, 129/3, 131/2, 132/2, 524/2, 541/5, 583/7 584/2, area 0.026, 0.150, 0.090, 0.206, 0.173, 0.317, 0.101, 0.156 total Khasra No. 08, total area 1.219 hectare respectively. It was also pleaded in the plaint that the sale deed of the said land was executed on 29-04-2016, which is not binding upon the plaintiffs as it is illegal and void. Defendants No. 1 to 3 have, in collusion, executed a forged deed fraudulently and deceitfully to usurp the suit land by any means and transferred the land, which is criminal offence. The defendants conspired among themselves to end the plaintiffs' right over the suit land and 4 on the basis of the illegal registry deed executed on 29-04- 2016, to transfer the above land in the name of defendants No. 2 and 3, an application was submitted before the Tahsildar, Bhatapara for mutation. It has been further pleaded that when plaintiff Kailash had come to the Tehsil office Bhatapara on 03-06-2016 for his personal work he came to know about sale of plaintiffs’ ancestral property at Rajadhar by defendant Bisanpal to defendants No. 02 and 03 and filing of application for transfer, the plaintiffs appeared before the Tahsildar, Bhatapara on 09-06-2016 objecting the same. It was pleaded that 9-10 years ago an oral partition was done between the plaintiffs and the defendants in presence of the prominent persons of the village. According to the said oral partition, plaintiff Kailash Pal got Khasra No. 541/5 area 0.317 hectare and plaintiff Punaram got Khasra No. 178/3, 584/2 area 0.113, 0.156 and plaintiff Dhaneshwari got Khasra No. 379/4, 385/3, 524/2 area 0.059, 0.071, 0.173 respectively, and the remaining land was received by the defendants. According to the said partition, both the parties are in possession of their respective shares of land and have been cultivating it. In this case, defendant No. 4 – The State of C.G. has been made a formal party and no relief has been sought from it. Hence, the suit may be allowed and the sale deed executed 5 by defendant Bisanpal in favour of defendants Tilokan and Omkumari may be declared null and void being not binding on the plaintiffs and they should be given partition and consequential possession as per the earlier partition done amongst them and the defendants may be prohibited from causing any disturbance on the plaintiff's share of land, and pass the decree accordingly. 3. The appellant/defendants filed their written statement and denied the averment of plaintiffs only having left the admitted fact. It was stated in the written statement that plaintiff No. 1 has three brothers and two sisters namely Ganeshram, Mangalu, sister Rajmati and Sonmati, whose description is not given in the family tree. Defendant No. 1 received some land out of total khasra No. 08, total area 1.219 hectares from his father Heera Lal in the partition among his other brothers and some land was purchased by defendant No. 1 from his own income. Defendant No. 01 has not purchased any other agricultural land from the income of ancestral property. Defendant No. 01 has executed the sale deed dated 29-04-2016 in favour of defendant No. 02 and 03 without any consideration, in which there is nothing illegal. The said land had been registered in the revenue records in the name of defendant No. 1 as the owner of the land, to which no objection has 6 ever been raised by the plaintiffs. It was also averred that the defendant No. 1 has full right and authority to execute a sale deed with or without consideration in favour of any other person of the land registered in the revenue records in the name of defendant No. 01 as the owner of the land. Defendants No. 02 and 03 have full right to get the land sold through the sale deed transferred in their favour. It was also averred that during the pendency of the mutation proceeding in the Revenue Court, the plaintiffs filed a suit regarding the land mentioned in the plaint, as such, the suit is not maintainable being premature. There has never been any verbal or any other kind of partition of the land between the plaintiffs and the defendants. The defendants never threatened the plaintiffs in any manner. But when the plaintiffs interfered during the harvesting of paddy, the defendants lodged a report against them in Police Station - Bhatapara. The plaintiffs do not have any cause of action. The suit has been filed by the plaintiffs against the defendants just to harass them physically and mentally. Therefore, the suit of the plaintiffs may be dismissed. 4. The learned trial Court on the basis of plaint averments and written statements, vide judgment and decree dated 09.08.2019 partly allowed the suit filed by the plaintiffs holding that the plaintiffs have proved in establishing with a 7 preponderance of probabilities that some of the suit land was ancestral property in which they had a right and the fact of some land being ancestral was accepted, and on the contrary, it was held that the arguments and grounds produced by the defendant Nos. 1 to 3 were in favour of dismissing the suit. 5.
Legal Reasoning
that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. 24. Again in the MUNICIPAL CORPORATION OF GREATER BOMBAY V. LALA PANCHAM AND OTHERS, AIR 1965 SC 1008, the Hon'ble Supreme Court held that under Order 41 Rule 27 of 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. This provision does not entitle the appellate Court to let him fresh evidence only for the purpose of pronouncing judgment in a 16 particular way. In other words, it is only for removing the lacunae in the evidence that the appellate Court is empowered to admit additional evidence and not for removing the lacunae in the case of the parties. 25. From the above and other catena of decisions on Order 41 Rule 27 of CPC, it can be said that at the appellate stage additional evidence can be entertained by the appellate Court if there is some lacunae in evidence on record which requires clarification by additional evidence, may be oral or documentary evidence and such additional evidence is necessary for pronouncing effective judgment by the appellate Court and that it is not the right of, may be of the appellant or of the respondent to tender as of right additional evidence oral as well as documentary in appeal so as to fill in the lacunae in its case. Lacunae in the case of party can not be permitted to be removed by the appellate Court by accepting additional evidence. On the other hand, if there is some lacunae in the evidence already on the record which requires clarification in that event, certainly the appellate Court can accept additional evidence. 26. In the present case also, it is apparent that the learned trial Court intelligibly framed issue on these point and case of the defendant Bisanpal is that some of the suit property is his self acquired property but he did not file any 17 documentary evidence viz sale deed and other document before the learned trial Court during the pendency of the suit and when the learned trial Court passed the impugned judgment and decree partly allowing the suit of the plaintiffs then he filed the documents to the effect that some property is his self acquired property. Defendant Bisanpal has not come out with good ground as to why he did not file these documents before the learned trial Court during the pendency of suit particularly when he was in possession of said documents, which according to him, was just for proper adjudication of the suit. As such, this application is not bonafide. On the contrary, plaintiffs have filed revenue documents from very inception and in all the documents name of Heera Ram was recorded. Thus, the learned trial Court rightly recorded its finding that except three khasra Nos. 129/3, 131/2 and 454/2, the remaining property is ancestral property. 27. Since, we held that the application filed by the defendants under Order 41 Rule 27 of CPC is not bonafide, as such, the same is liable to be and is hereby dismissed being devoid of merit. 28. The question for adjudication before this Court is whether the entire suit property is ancestral property of the parties or some property is self acquired property of the defendant 18 No.1-Bisanpal. 29. It transpires from the record of the learned trial Court that the plaintiffs have filed document viz kishtabandi B-1, kishtabandi khatouni, P-II Khasra, revenue record, Panchsala form, Panchsala Form P-II, Khasra Panchasala Form-II under Ex.P/1 to P/11, perusal of which goes to show that in all the documents name of Heera Ram was recorded as land owner and thereafter, the name of defendant No.1- Bisanpal was recorded. 30. Defendant No.1-Bisanpal has admitted in para 16 of his cross-examination that we all brothers used to go to his father Hiraram's field to do agricultural work and we all had a joint account. He has also admitted that we all three brothers and his father Heera Ram had purchased the land while living together. He himself stated that there was no role of his father Heera Ram in purchasing the land. Further, in para 18 and 19, he has admitted that after the death of his wife Punoutin Bai, mother of plaintiffs, he married to Om Kumari and defendant Tilokan was born out of their wedlock. He has also admitted that Om Kumari, defendant Tilokan and himself reside together in Dhurrabandha. He has denied the suggestion that the house at village Rajadhar in which plaintiffs are residing is his ancestral house. He himself stated that he had bought the house and 19 given it to the plaintiffs to live in but he did not file any document in this case with regard to purchase of said house to substantiate his plea of self acquired property. He has denied this suggestion that before leaving village Rajadhar, he had partitioned the property registered in his name among the children of his first and second wife but he himself stated that he had not received the partition. He has also admitted that he received some portion of the suit land by his father Heera Ram and some from his brothers in partition. 31. Thus, from the aforesaid admission and denial of suggestion by the defendant No.1-Bisanlal, the learned trial Court after minute appreciation of oral and documentary evidence of both the parties, has rightly recorded its finding that the plaintiffs have proved that the suit property is their ancestral property and the defendants have failed to prove this fact that some part of the suit property is his self acquired property. 32. The finding recorded by the learned trial Court is based on proper appreciation of oral and documentary evidence and this Court does not find any illegality or infirmity in the impugned judgment and decree passed by the learned trial Court warranting any interference by this Court. 33. The application filed by the defendants under Order 41 Rule 20 27 of CPC and the appeal being devoid of merit liable to be and are hereby dismissed. 34. Let a decree be drawn-up accordingly. There shall be no order as to cost(s). Sd/- (Rajani Dubey) Judge Sd/- (Bibhu Datta Guru) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.01.28 16:48:06 +0530
Arguments
Learned counsel for the appellants/defendants submits that the learned trial Court has committed an error in declaring khasra Nos. 72/5, 132/2, 524/2, 540/5, 583/7 and 584/2 as ancestral property, therefore, finding of issue No.1 is liable to be reversed to that extent. The finding of the learned trial Court with regard to issue No.4 that the sale deed is invalid upto 3 x 5 part is illegal as the sold property was not ancestral but was the self acquired property. Learned counsel further submits that the finding with regard to issue No.2 not holding khasra Nos. 72/5, 132/2, 524/2, 541/5, 583/7 and 584/2 as self acquired property, by modifying it adding them in Issue No.5 declaration of share as 1/5 is also illegal because it should have been 1/6th on the ground that wife of defendant No.1 is alive, therefore, the appeal may be dismissed with cost throughout by setting aside the judgment and decree of the learned trial Court. The learned trial Court has wrongly decided in share as 1/5th instead of 1/6th. It has also not followed the procedure laid down in 8 Order 43 of the CPC in the matter of minor Tilokan Pal, therefore, also judgment and decree is vitiated. 6. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of M. Yogendra and Ors. Vs. Leelamman & Ors. reported in (2009) 15 SCC 184, and Rohit Chauhan V. Surinder Singh & Others reported in (2013) 9 SCC 419. 7. Learned counsel for respondents/plaintiffs supporting the impugned judgment and decree submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly passed the decree. Thus, the appeal being devoid of merit is liable to be dismissed. 8. The respondent No.4 – The State of C.G. is a formal party and no written submission has been filed by the State. 9. The defendants/appellants herein have filed an application under Order 41 Rule 27 of CPC and submits that the appellants have filed documents regarding partition deed dated 29.05.2015 and khasra entries & have also filed sale deed by minor Bharat, Dashoda Bai and Tirath Ram in favour of Ganeshram, Bisan, the sale deed dated 19.09.2019 by Punau, Sawat, Faguwa, Mus. Mankunwar, Mus. Ghasnin in favour of Ganeshram, Bisan and Manglu, therefore these documents which are necessary for just 9 adjudication of the case, may be taken on record. 10. Learned counsel for plaintiffs/respondents strongly opposed the prayer of the defendants/appellants and submits that the defendants are trying to fill up the lacuna in this case. He did not explain as to why they did not file these documents before the learned trial Court. The documents are the copy of partition deed and sale deed, which were in possession of the defendants even at trial stage but the same have not been filed during trial and when the decree was passed against the defendants, they have filed these documents. The applications itself are not tenable being devoid of any required merit. So, these applications are liable to be dismissed. 11. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of H.S. Goutham V. Rama Murthy and Another reported in (2021) 5 SCC 241 and other connected matters. 12. We have heard learned counsel for the parties at length and perused the material available on record. 13. Before the learned trial Court, it is an admitted position that the plaintiffs Kailash, Punaram and Dhaneshwari are the children of Punoutin Bai, first wife of defendant No.1- Bisanpal and after the death of Punoutin Bai, Bisanpal – 10 Defendant No.1 solemnized marriage with defendant No. 3- Om Kumari and Tilokan Pal – Defendant No.2 was born out of their wedlock. 14. The learned trial Court on the basis of pleadings of the parties framed as many as 06 issues for disposal of the suit, out of which Issue Nos. 1, 2 and 3 being significant are reproduced herein as under :- Sr. No. 1- 2- 3- Issues Result [kljk uacj 75@5] 132@2] 178@3] 385@3] 397@4] 524@2] 541@5] 583@7] 584@2] 586@5] dqy [kljk uacj 10 ,oa dqy jdck 1-466 gsDVs;j Hkwfe iSr`d lEifRr gS [kljk uacj 129@3] 131@2] 454@2 dks NksMdj 'ks”k lEifRr iSr`d lEifRr gSA izekf.kr ugh D;k xzke jktk<kj] i-g-ua- 16 rglhy HkkVkikjk] ftyk cykSnkcktkj&HkkVkikjk fLFkr [kljk uacj 75@5] 129@3] 131@2] 397@4] 132@2] 454@2] 583@7] 584@2] 586@5] dqy [kljk uacj 13 ,oa dqy jdck 1-655 gsDVs;j Hkwfe oknhx.k dh iSr`d lEifRr gS \ 178@3] 524@2] 385@3] 541@5] D;k mDr okn lEifRr izfroknh dzekad 01 dh LoftZr lEifRr gS\ ;fn gka rks izHkko \ D;k vkilh ekSf[kd caVokjk esa [kljk uacj 541@5 jdck 0-317 gsDVs;j Hkwfe oknh dSyk'k iky dks] [kljk uacj 178@3] 584@2 jdck dze'k% 0-113] 0-156 gsDVs;j Hkwfe oknh iwukjke dks] ,ao [kljk uacj 379@4] 385@3] 524@2] jdck dze'k% 0- 059] 0-071] 0-173 gsDVs;j dh Hkwfe oknh /kus'ojh dks izkIr gqbZ gS vkSj os mDr Hkwfe ij dkfctdkLr gS \ 15. The plaintiffs have filed Kishtabandi Khatouni (Ex.P/1, P/2, P/3, and P/4) of the year 2008-2009, 2014-2015, Khasra of the year 2014-2015, 1984-1985 respectively, and perusal of Ex.P/1 goes to show that name of Heeraram, grand-father 11 of plaintiffs and father of defendant Bisanpal, was recorded as owner of suit property. In Ex.P/2 also name of Heeraram (wrongly recorded as Heeralal), was recorded as owner. In Ex.P/4, name of Ganesh Ram, Milan and Manglu was recorded as owner of the suit property. In Form B-1 (Ex.P/5) also name of Ganesh Ram, Bisan, Manglu, S/o Heera Ram was recorded. Thus, it is apparent from the aforesaid that name of defendant No.1 – Bisanpal was recorded as son of Heera Ram. 16. Defendant No.1 – Bisan Pal has pleaded that he has received some land out of total khasra No. 08, total area 1.219 hectares from his father Heera Ram in the partition among his other brothers and some land was purchased by defendant No. 1 from his own income i.e. self acquired property but he did not file any documentary evidence viz sale deed to substantiate his pleading to the effect that some property is his self acquired property. The learned trial Court recorded its finding in Issue No.2 that except Khasra No. 129/3, 131/2 and 454/2, the remaining property is ancestral property. 17. Now coming to the application filed by defendants/appellants herein under Order 41 Rule 27 of CPC, whereby they have filed copy of some sale deed pleading that the same are essential for just adjudication of 12 the appeal. 18. It would be apposite to quote Order 41 Rule 27 of the CPC, which reads as under:- 27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if — (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) 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] (b) 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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission 19. At the outset, it needs to be observed that Order 41 Rule 27 of the Code of Civil Procedure (CPC) gives discretion to the appellate Court under this provision to receive and admit additional evidence is not arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the 13 principles governing reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored. 20. Equally settled is the proposition that the additional evidence should not be permitted at the appellate stage simply in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. This provision does not entitle the appellate Court to lead fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing the lacunae in the evidence that the appellate Court is empowered to admit additional evidence and not for removing the lacunae in the case of the parties. 21. The Hon'ble Apex Court while dealing with the issue of taking additional evidence in appeal without following procedure under Order 41 Rule 27 to 29 of CPC in H.S. Goutham (supra) held in para 37 as under :- “37. Even otherwise, it is required to be noted that as per the provisions of Order 41, the appellate court may permit additional evidence to be produced whether oral or documentary, if the conditions mentioned in 14 Order 41 Rule 27 are satisfied after the additional evidence is permitted to be produced in exercise of powers under Order 41 Rule 27. Thereafter, the procedure under Order 41 Rules 28 and 29 is required to be followed. Therefore, unless and until the procedure under Order 41 Rules 27, 28 and 29 is followed, the parties to the appeal cannot be permitted to lead additional evidence and/or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to sent it when taken to the appellate court. From the material produced on record, it appears that the said procedure has not been followed by the High Court while calling for the report from the learned Principal City Civil Judge.” 22. The Hon'ble Supreme Court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193 has observed that Order 41 Rule 27 of CPC gives discretion to the appellate Court but the discretion given to the appellate Court under this provision to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record 15 will have to be ignored and the case has to be decided as if such evidence is not existing. 23. In the case of STATE OF U.P. V. MANBODHAN LAL AIR 1957 SC 9012 the Hon'ble Supreme Court has laid down