Atma Ram Narang v. Din Dayal Jain & Anr.

This second appeal is filed by the defendant/appellant challenging the judgment and decree dated 29.11.1986 passed by learned trial Court/Sub-Judge, IInd Class, Rohtak as well as judgment and decree dated 2.11.1987 passed by learned first Appellate Court/ Addl. District Judge (II), Rohtak. Learned trial Court decreed the suit of the plaintiffs/respondents for possession against RSA No.3761 of 1987 (O&M) -2- the defendant/appellant. Learned first Appellate Court dismissed the appeal filed by the defendant/appellant.

2. Brief facts of the present case are that plaintiffs filed a suit for possession against the defendant/appellant saying defendant/appellant has encroached upon the property marked as A B C D in the attached map; Defendant/appellant has no right or tile over the property in dispute.

3. Suit of the plaintiffs was contested by the defendant/appellant on the ground that some portions of entire property were purchased by the plaintiffs, however, property in dispute was purchased by the son of the defendant from Mr. Anil Jain vide sale deed dated 6.2.1981. Defendant has denied the title of the plaintiffs over the disputed property.

4. Both the Courts below have placed reliance on the admission/statement given by father of the vendor of the defendant to the effect that plaintiffs are owner of the property, in the earlier litigation, filed by the plaintiffs against Richhpal. Both the Courts below observed that since admission was made by the vendor of the defendant admitting title of the plaintiffs in a suit filed by the plaintiffs against Richhpal, hence, that admission can not be withdrawn in the present suit and plaintiffs are owner of the disputed property.

5. I have heard learned Counsel for the parties and perused the record.

6. In the present appeal, following substantial questions of law arise for just and fair adjudication of the lis between the parties:- RSA No.3761 of 1987 (O&M) -3- i) As to whether any admission made in an earlier suit filed by the plaintiff against Richhpal shall be confined to the property involved in that suit or shall be taken as admission pertaining to the entire property including the disputed portion? ii) As to whether burden of proof to prove title over the property in possession of the defendant was wrongly placed on the defendant in view of Section 110 of the Evidence Act?

7. Answer to Substantial Question of Law No.(i):- Mr. Mittal, learned Senior Advocate appearing for the appellant stated that before the learned trial Court, no document i.e. plaint, written statement, or statements recorded in the earlier suit filed by the plaintiffs against Richhpal, were produced, to point out that admission given was not pertaining to the present disputed property and was confined to portion involved in that litigation pending between plaintiffs and Richhpal.

8. Mr. R. S. Mittal, Sr. Advocate submitted that an application under Order 41 Rule 27 C.P.C. was moved before the first Appellate Court seeking permission to file certified copies of certain documents of the suit against Richhpal, where alleged admission was made to clarify that disputed property of the present suit was not involved in that suit, hence, no statement made therein RSA No.3761 of 1987 (O&M) -4- can be treated as admission pertaining to the title of the disputed property. However, the same was illegally rejected by learned first Appellate Court.

9. Mr. Nilesh Bhardwaj, Advocate appearing for the respondents/plaintiffs stated that both the Courts below have rightly relied upon the admission made by vendor of the defendant. He further stated that application under Order 41 Rule 27 C.P.C. was rightly rejected by the first Appellate Court, while deciding the first appeal.

10. I have no hesitation to hold that any admission made about the title of the property in the previous litigation ordinarily confines to the property involved in the previous litigation.

11. Order 41 Rule 27 C.P.C 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 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 RSA No.3761 of 1987 (O&M) -5- 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

12. From the perusal of Rule 27 of Order 41 C.P.C., it can safely be said that additional evidence must be permitted by the appellate Court in either of the three contingencies i.e. (i) If Court below has illegally refused to admit that evidence or (ii) if that evidence was not in the knowledge of the party despite of due diligence or could not be filed despite of due diligence of the party seeking to file additional evidence or (iii) if appellate Court finds that evidence sought to be filed shall enable the appellate Court to decide the lis.

13. In the peculiar facts and circumstances of the case where statement/admission made about the title in the previous litigation is sought to be relied upon in the subsequent suit, Court has to find out that such admission was pertaining to what property i.e. was it for property involved in the previous suit or was for the entire property including disputed property of the present suit. To reach RSA No.3761 of 1987 (O&M) -6- definite conclusion, pleadings and other documents of previous suit are relevant piece of evidence to throw light on the issue. Hence, in my opinion, first Appellate Court ought to have exercised jurisdiction under Order 41 Rule 27 (iii) C.P.C.

14. In view of the above, I have no hesitation to hold that application under Order 41 Rule 27 C.P.C. ought to have been allowed to clarify the admission, as to whether that was confined to the portion involved in a previous suit against Richhpal or was pertaining to the entire property including property in dispute. Substantial question of law No.(i) is answered accordingly.

15. Answer to Substantial Question of Law No.(ii):- Section 110 of the Evidence Act reads as under:- “110. Burden of proof as to ownership- When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

16. From the perusal of Section 110 of the Evidence Act, I have no hesitation to hold that if a person is in possession then burden of proof lies on the person who seeks dispossession to prove that person in possession is not the owner. In the present case, learned trial Court as well as learned first Appellate Court have wrongly place burden of proof on the defendant to prove that he is the owner. By placing burden of proof wrongly on the defendant, findings recorded by both the Courts below vitiated. Substantial RSA No.3761 of 1987 (O&M) -7- question of law No.(ii) is answered accordingly.

17. In view of the above findings, this Court thinks it proper to remand the case to learned first Appellate Court to decide the appeal de novo after taking into consideration certified copies of documents filed under Order 41 Rule 27 C.P.C.

18. The appeal is allowed. Impugned judgments and decrees dated 29.11.1986 and 2.11.1987 are set aside.

19. Appeal is remanded to the learned first Appellate Court. Both the parties are directed to appear before learned first Appellate Court on 15.07.2010. First Appellate Court is directed to decide the appeal afresh in accordance with law in the light of observations made herein above. 10th May, 2010 ashish ( ALOK SINGH ) JUDGE