) ------ Smt. Bindu Devi wife of Suresh Prasad Gupta, Female, Aged about 57 v. 1
Case Details
S.A.No.194 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.194 of 2022 ------ the judgment dated 08.09.2022 passed by learned (Against Additional Judicial Commissioner-VIII, Ranchi in Civil Appeal No.34 of 2017) ------ Smt. Bindu Devi wife of Suresh Prasad Gupta, Female, Aged about 57 years, by Caste- Roniar Bania, by Faith- Hindu, by Occupation- Housewife, Mobile No.9934161622, Resident of Road No.6, Indrapuri, Ratu Road, Ranchi, P.O.- Hehal, P.S.- Sukhdeonagar, District- Ranchi (Jharkhand), Pin Code-834005. .... .... …. Defendant/Appellant/Appellant Versus 1. Smt. Phulpati Devi wife of Late Sahdeo Sinha, by Caste- Kayastha, by Faith- Hindu, by Occupation- Housewife, Resident of Road No.6, Indrapuri, Ratu Road, Ranchi, P.O.- Hehal, P.S.- Sukhdeonagar, District- Ranchi (Jharkhand), Pin Code-834005 .... .... …. Plaintiff/Respondent/Respondent 2. Satish Chandra Thakur son of Ram Prasad Thakur, Male Age 60 years, by Caste- Nai, by faith- Hindu, by occupation- Retired, Mobile-985280478. 3. Krishna Gupta son of Late Bibhuti Sao, Male, Age-60 years, by Caste- Teli, By Faith- Hindu, By Occupation- Business, Mobile- 9308039735 1 and 2 both resident of Road No.6, Indrapuri, Ratu Road, Ranchi, P.O.- Hehal, P.S.- Sukhdeonagar, District- Ranchi (Jharkhand), Pin Code-834005 ....
Legal Reasoning
.... …. Defendants/Appellants/Proforma Respondents ------
Legal Reasoning
For the Appellant : Mr. Badal Vishal, Advocate Mr. Anivesh Singh, Advocate Mr. Vivek Subir, Advocate ------ 1 S.A.No.194 of 2022 HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY P R E S E N T ------ By the Court:- Heard the learned counsel for the appellants. 2. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment of concurrence dated 08.09.2022 passed by learned Additional Judicial Commissioner-VIII, Ranchi in Civil Appeal No.34 of 2017 by which the learned First Appellate Court after finding no infirmity in the judgment and decree passed by the learned trial court being the Sub Judge VI, Ranchi in Title Suit No.38 of 2006; by which the learned trial court has decreed the suit of the plaintiff filed with a prayer for declaration of right, title and interest over the suit land and decree for recovery of possession with further relief of cost of the suit and such other reliefs and dismissed the appeal. 3. The brief facts of the case is that the plaintiff purchased the suit land from Jadu Choudhary by virtue of registered sale-deed dated 18.10.1996. Jadu Choudhary purchased the said land from the recorded tenant- Puran Baraik by the registered sale-deed marked as Ext. 2. The plaintiff after purchasing the suit land, got her name registered in the Circle Office by the mutation case and regularly paying rent to the State and thus became absolute owner of the land along with house and other structures as described in the plaint. In the year 1995, the plaintiff became seriously ill and she executed a general power of attorney appointing her nephew Niraj Kumar Sinha for managing the affairs. In course of temporary absence of the plaintiff and the said power of attorney holder of the plaintiff; taking the undue advantage of the absence of the plaintiffs, the defendant No.3 illegally trespassed into the suit land to the extent of an area of 2 Katha along with structures standing thereon. But as the said constituted power of attorney, returned to Ranchi she protested against the illegal trespass against the defendant No.3 and also issued the notice through the advocate, calling upon the defendant No.3 to hand over the possession of the suit property. The defendant No.3 after receipt of the notice instead of handing over the possession illegally inducted the 2 S.A.No.194 of 2022 defendant Nos.1 and 2 in the month of October, 2000 into the suit property and since then all these defendants are in illegal possession of the suit property belonging to the plaintiff without having any semblance of title. Hence, the plaintiff filed the suit. 4. The defendants in their written-statement challenged the maintainability of the suit on various technical grounds and denied the right and title of the plaintiff over the suit land on the ground that Jadu Choudhary- the vendor of the plaintiff was not the owner of the suit property. The defendants denied all the averments made by the plaintiff in the plaint. The defendants claimed that they have purchased the suit property from the rightful owner Sukhdeo Baraik and got the suit land mutated by mutation case and paying rent to the State. The defendants further pleaded that they have constructed a house in a portion of the suit property and residing there. 5. The defendant No.2 in his written-statement also claimed that he purchased part of the suit property from the rightful owner and got his name mutated and constructed a house over the suit property. 6. The defendant No.3 has also stated that having purchased the suit property from the rightful owner- Sukhdeo Baraik and having constructed a house, he is residing there. 7. On the basis of the rival pleadings of the parties, the learned trial court framed the following seven issues:- Is the suit as framed maintainable? (I) (II) Has the plaintiff valid cause of action for the suit? Is the suit barred by Limitation, Adverse possession and ouster? (III) (IV) Has the plaintiff right, title and interest over the suit property? (V) Is the suit barred by the principles of Waiver, estoppel and acquiescence? Is the plaintiff entitled to declaration of title and recovery of possession of the suit premises as claimed by her? (VII) To what relief or reliefs, if any, is the plaintiff entitled to? (VI) 8. In support of her case, the plaintiff examined seven witnesses and proved the documents which have been marked Ext. 1 to Ext. 8. The defendants, however, did not adduce any evidence either oral or documentary. 9. The learned trial court first took up issue No.(III) and after 3 S.A.No.194 of 2022 considering the evidence in the record came to the conclusion that since the defendant has not produced any evidence either oral or documentary, hence, the defendants have failed to prove their contention of their title by way of adverse possession and decided the said issue No. (III) against the plaintiff. 10. The learned trial court next took up the issue Nos. (IV) and (VI) together and considering the materials in the record, came to the conclusion that the plaintiff has right, title and interest over the suit property and entitled for declaration of such right, title and interest and for recovery of possession of the suit premises as claimed by her. 11. The learned trial court disposed of the issue No. (V) as not pressed and decided the same against the defendant. 12. Lastly, the learned trial court took up issue Nos.(I), (II) and (VII) together and held that the suit is maintainable in its present form and the plaintiff has valid cause of action for the suit and the plaintiff is entitled for declaration of right, title and interest over the suit property and entitled for decree for recovery of possession on it and decreed the suit on contest. 13. Being aggrieved by the judgment and decree passed by the trial court, the defendants preferred Civil Appeal No.34 of 2017 in the court of Additional Judicial Commissioner-VIII, Ranchi which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 14. The learned First Appellate Court, considering the materials available in the record formulated the following points for determination:- “Firstly- Whether the suit is barred by law of adverse possession? Secondly- Whether the plaintiff has right, title and interest over the suit property?” 15. The learned First Appellate Court made independent appreciation of the evidence in the record and as the defendant has not adduced any evidence either oral or documentary, the learned First Appellate Court came to the conclusion that the defendants have failed to substantiate their plea of adverse possession as well as the ownership right and went 4 S.A.No.194 of 2022 on to hold that the plaintiff has right, title and interest over the suit property and she is entitled to recovery of possession thereof and thus, dismissed the appeal. 16. It is pertinent to mention here that before the appellate court, the appellants/defendants filed an application under Order XLI Rule 27 of the Code of Civil Procedure with a prayer to allow the appellants/defendants to prove certain documents by way of additional evidence; as such documents could not be produced by the defendants during the trial, in spite of exercising their due diligence; as inadequate opportunity was given to the defendants, to adduce their defence evidence. The learned First Appellate Court on the same day of pronouncement of the judgment in Civil Appeal No.34 of 2017 first rejected the petition filed under Order XLI Rule 27 of the Code of the Civil Procedure and then pronounced judgment in the First Appeal. The learned First Appellate Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Union of India vs. Ibrahim Uddin & Another reported in (2012) 8 SCC 148 paragraph-40 of which reads as under:- “40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” (Emphasis supplied) 17. The learned First Appellate Court considered that the perusal of the lower court records shows that the evidence of the plaintiff was closed on 15.01.2015. The defendants put their appearance on that date. The suit was next fixed to 12.03.2015 for evidence of the defendants. The defendants put their appearance on 12.03.2015 but did not adduce any evidence. The suit was next fixed to 24.04.2015 but the defendants neither took any steps nor adduced any evidence. The suit was again fixed to 28.05.2015 but on that date though the defendants put in their appearance, but they did not adduce any evidence. The suit was next fixed to 23.06.2015. Though the defendants put in their appearance but again did not adduce any 5 S.A.No.194 of 2022 evidence and even after being given several opportunities, the defendants did not adduce any evidence. The evidence was closed and the judgment was delivered much after that on 30.11.2016 and the suit was decreed on contest. 18. The First Appellate Court also observed that the judgment and decree impugned before it, shows that the lawyers for both the plaintiff and the defendants participated in the suit till the end i.e., till pronouncement of the judgment and the learned First Appellate Court observed that since ample opportunities were given to the defendants to adduce evidence in the trial court but they failed to adduce evidence though they put in their appearance before the court but did not choose to produce any evidence oral or documentary in the trial court voluntarily. Hence, as per the opinion of the learned First Appellate Court, sufficient opportunity was provided by the learned trial court to the defendants to produce evidence. The First Appellate Court further observed that, this conduct of the defendants shows that the defendants intentionally and deliberately did not adduce any evidence in the trial court. Accordingly, the learned First Appellate Court rejected the said petition filed under Order XLI Order 27 of the Code of Civil Procedure. 19. Learned counsel for the appellant submits that the learned First Appellate Court committed a grave error of law by not considering the petition filed under Order XLI Rule 27 of the Code of Civil Procedure. Learned counsel for the appellant relies upon the judgment of the Hon’ble Supreme Court of India in the case of Rafiq & Another vs. Munshilal & Another reported in AIR 1981 SUPREME COURT 1400 and submits that in the facts of that case, where the High Court disposed of the appeal of the appellant in absence of his advocate and when an application was moved in the High Court to recall the order dismissing the appeal and permit the appellant to appear in the hearing of the appeal, the said application was also rejected by the High Court on the ground that no satisfactory explanation for this recklessness on the part of the learned advocate who was requested to file the application. The Hon’ble Supreme Court of India took note of the fact that at the time of hearing of the appeal, the personal appearance of the party is not only not required but 6 S.A.No.194 of 2022 hardly used. Hence, the party having done everything in his power to effectively participate in the proceedings can rest assure that he has neither to go the High Court to enquire as to what is happening in the High Court with regard to his appeal nor he is to act as a watchdog of the advocate and the Hon’ble Supreme Court of India set aside the order of the High Court both dismissing the appeal and refusing to recall its order and directed the appeal to be restored its original number in the High Court and be disposed of accordingly. Learned counsel for the appellant then submits that the same analogy can be attracted in a civil suit also and as the party has entrusted the documents to the lawyer and the documents were already in the record, a duty was cast upon the lawyer to intimate the client/ the defendants of the suit to come to the court and having not done so; no fault can be found with the defendants so as to debar them from allowing their petition for adducing additional evidence by bringing in record the entire evidence which they ought to have adduced before the learned trial court. 20. It is next submitted by the learned counsel for the appellant that the learned First Appellate Court in its order dated 08.09.2022, has failed to consider as to whether the documents sought to be adduced as additional evidence is required for passing a just decision in the appeal and having not done so the said order is not sustainable in law, and, therefore, is liable to be set aside after formulating appropriate substantial question of law. In this respect, learned counsel for the appellant relies upon the judgment of Union of India vs. Ibrahim Uddin & Another (supra) paragraph-49 of which reads as under:- Stage of consideration “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be 7 S.A.No.194 of 2022 adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh [1951 SCC 178 : AIR 1951 SC 193] and Natha Singh v. Financial Commr., Taxation [(1976) 3 SCC 28 : AIR 1976 SC 1053] .)” 21. In this respect, learned counsel for the appellant also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sanjay Kumar Singh vs. State of Jharkhand passed in Civil Appeal No.1760 of 2022 dated 10.03.2022 as also in the case of Uttaradi Mutt v. Raghavendra Swamy Mutt reported in (2018) 10 SCC 484. Hence, it is submitted that in order to do substantive justice and give an opportunity to the defendants to put forth their evidence in support of their pleadings, the impugned judgment and decree be set aside by formulating appropriate substantial question of law. 22. Having heard the submissions of the learned counsel for the appellant and after carefully going through the materials available in the record it is pertinent to mention here that this Court is not inclined to accept the contention of the learned counsel for the appellant that the observation of the Hon’ble Supreme Court of India in the case of Rafiq & Another vs. Munshilal & Another (supra) can be applied to a civil suit. True it is that in an appeal before the High Court, the appearance of the parties is not required and but hardly used but the same analogy cannot be applied to a civil suit because in a civil suit the parties are to examine themselves as witnesses and if they do not examine themselves without any plausible reason, the law mandates that, adverse inference be drawn against them. Further, there are several acts which are to be done by the parties in the trial of the suit. Hence, this Court is of the considered view that the observation made by the Hon’ble Supreme Court of India regarding non requirement of a party to remain present in a High Court at the time of hearing of an appeal cannot be applied to the proceedings of a suit before a civil court. 23. Now, coming to the order dated 08.09.2022 passed by the learned First Appellate Court by which it rejected the application under Order XLI Rule 27 of the Code of Civil Procedure is concerned, it is a settled 8 S.A.No.194 of 2022 principle of law that negligence of an advocate is not a substantial cause as envisage in Order XLI Rule 27 of the Code of Civil Procedure as has been held by the Hon’ble Supreme Court of India in paragraph- 40 of the case of Union of India vs. Ibrahim Uddin & Another (supra). In the petition filed under Order XLI Rule 27 of the Code of Civil Procedure, the grounds set out by the appellant/defendant for allowing them to adduce additional evidence is that in spite of exercising due diligence they could not produce the documents, hence, the documents be marked as exhibits by way of additional evidence. But the observation of the learned First Appellate Court that on four different dates at the stage of defence evidence though the defendants put in their appearance but did not adduce evidence nor prayed for any time to adduce defence evidence; in the considered opinion of this Court, amounts to; adequate opportunity being given to the defendants to adduce evidence and the fact remains that even though the judgment was pronounced; more than a year after the closure of the defence evidence and in between also the defendants did not approach the trial court to recall the order by which defence evidence was closed, is nothing but the laches on the part of the defendants for which there is no explanation. 24. So far as the contention of the appellant as to whether the documents are necessary for the just decision of the case; as has been held by the Hon’ble Supreme Court of India in the case of Union of India vs. Ibrahim Uddin & Another (supra) that the mere fact that certain evidence is important is not in itself a sufficient ground for adducing evidence in an appeal and such occasion could arise only if on examination of the evidence as it stands the court comes to a conclusion that some inherent lacunae or defect becomes apparent to the court. Here, the case in hand; is a case where the plaintiff has adduced evidence in support of their case and the defendants have not adduced any evidence whatsoever. So, in the considered opinion of this Court the documents sought to be adduced as evidence by way of additional evidence are not documents which are required for just decision of the case as there is no inherent lacuna or defect which becomes apparent. 25. This Court after going through the evidence in the record finds that 9 S.A.No.194 of 2022 the concurrent finding of facts arrived at by both the courts below was not made by ignoring or excluding relevant materials or by taking into consideration irrelevant materials nor the findings of the courts below so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse. 26. In the absence of any perversity in the finding of facts arrived at by both the courts below, this Court do not find any justifiable reason to interfere with the concurrent finding of facts arrived at by both the courts. 27. After carefully going through the evidence in the record, this Court do not find any substantial question of law involved in this appeal. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 28. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 19th of July, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 10