Makhmool & Ors. v. Jamaluddin & Anr.

whereby the suit filed by the plaintiffs-respondents was decreed and the appeal filed by the defendants-appellants was dismissed. The appellants are sons of one Badlu while the respondents are the sons of Nazar Khan S/o Badlu, implying thereby that Nazar Khan was the brother of the appellants while the R.S.A. No.2215 of 2008 (O&M) -2- respondents Jamaluddin and Kamaluddin are the sons of Nazar Khan. The dispute arises from a decree dated 31.1.1986 allegedly suffered by Nazar Khan in favour of the present appellants. While obtaining this decree, the appellants had pleaded in their plaint that Nazar Khan was issueless and therefore, he had voluntary agreed to part with his entire holding in their favour. Nazar Khan died in 1998. The plaintiffs-respondents filed a suit alleging that the decree is the result of fraud and collusion and that they were the sons of Nazar Khan and entitled to succeed to his estate on the basis of natural succession.

The claim of the plaintiffs-respondents was disputed by the appellants, who pleaded that the respondents were not the sons of Nazar Khan, who died issueless. Both the Courts decreed the suit of the plaintiffs- respondents and held the decree to be invalid and also held that the respondents were sons of Nazar Khan. Aggrieved by the findings, the present appeal has been filed. It has been contended by learned counsel for the appellants that the findings recorded by both the Courts below are perverse and deserve to be set aside. He has stated that the decree was validly executed and that there was no material on record from where it can be inferred that Nazar Khan was the father of the respondents. R.S.A. No.2215 of 2008 (O&M) -3- During the pendency of the appeal, an application (C.M. No.9045-C of 2009) under Order 41 Rule 27 C.P.C. was filed seeking to produce additional evidence in the shape of an agreement to sell allegedly executed by the respondents in favour of some persons and also to produce on record the voters' list on the ground that photographs of one of the respondent namely Kamaluddin although tallies with the voters' list, but the man as reflected in the photographs is one Panni S/o Rahim Khan implying thereby that Kamaluddiin was not the son of Nazar Khan and was impersonated.

Notice of the application was separately given to the respondents, who contested the same and denied the averments made in the same. Learned counsel for respondent No.2 pleaded that even if the averments are to be accepted then also there is no explanation regarding Kamaluddin as there is no material to show that Kamaluddin is not the son of Nazar Khan. He pleaded that the voters' list is not the conclusive piece of evidence and apparently seems to be a bogus document. He further pleaded that in any eventuality, additional evidence in this shape could not be permitted to be brought on record at this belated stage. In so far as, merits of the case are concerned, learned counsel for respondent No.2 has contended that the Courts below have returned the finding that the decree was null and void and that sufficient reasons have been given for arriving at such a conclusion and further the fact that the respondents were sons of Nazar Khan or not, is purely a question of fact, which cannot be R.S.A. No.2215 of 2008 (O&M) -4- interfered in the Regular Second Appeal.

I have heard learned counsel for the parties and have perused the impugned judgments and also the material on record. The first question, which is to be determined, is whether the application under Order 41 Rule 27 can be allowed at this stage or not. There is indeed no doubt that provisions of Order 41 Rule 27 enable the Court to permit to bring on record some material, if the Court is of the opinion that it is necessary for the adjudication of a case or it is necessary to enable it to come on a proper conclusion. The Hon'ble Supreme Court in Basayya I. Mathad v. Rudrayya S. Mathad & others, 2008 (1) RCR 356, has observed in paragraph 8 of the judgment as under:- “8. It is clear that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a)& (aa). Admittedly, such recourse has not been resorted to neither by the party concerned nor adhered those principles by the High Court.

Paragraph 3 of his order shows that the learned Judge verified the document produced on his direction without complying the mandate as provided under Rule 27 of Order XLI. Hence, we are of the view that the finding of the learned Judge based on a document produced at the time of argument de hors to Rule 27 referred above cannot be R.S.A. No.2215 of 2008 (O&M) -5- sustained in the eye of law. In such circumstances, his ultimate conclusion treating the suit property as a family property partible among the members of the family is also liable to be set aside. In fact, sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission. It is needless to mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on the same.” In The State of Gujarat and another v.

Mahendra Kumar Parshottambhai Desai (Dead)by L.Rs., (2006) 9 SCC 772, the Hon'ble Supreme Court observed as under:- “10. We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order 41 Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to R.S.A. No.2215 of 2008 (O&M) -6- the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated 22.6.2000.

The High Court further found that Rule 27(1)(b) of Order 41 can be invoked only if the 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. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for "substantial cause" since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation for Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, 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 R.S.A. No.2215 of 2008 (O&M) -7- provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence.

We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.” Considering the aforesaid observations of the Apex Court, I now proceed to evaluate the material, which has been R.S.A. No.2215 of 2008 (O&M) -8- brought on record and which is necessary to be appreciated for the proper disposal of the case. The appellants have produced an agreement to sell with a photograph appearing thereon. One of the photograph is allegedly of Kamaluddin which tallies with the person, who has appeared at Sr. No.115 of the Voters' list, but in agreement to sell his name is mentioned as Kamaluddin S/o Nazar Khan whereas in the voters' list it is as Panni S/o Rahim Khan.