1

2026:CGHC:385

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

SA No. 41 of 2010

Judgment reserved on 18/11/2025

Judgment delivered on 05/01/2026

Harishanker Gupta S/o Shri Maniklal Gupta, Aged About 49 Years Opposite

Of Jagannath Mandir, Near Saddani Chowk, Manik Metal Stores, Raipur,

District Raipur, Chhattisgarh ................Plaintiff

... Appellant

versus

1 - State Of Chhattisgarh Through Collector Raipur, District Raipur,

Chhattisgarh

2 - Mehtaruram Dead Through Lrs

2.a - Smt. Tekan Bai W/o Late Mehtaruram Dewangan, Aged About 62

Years R/o Village- Devgaon, Post- Khauna, Thana- Kharora, Tahsil- Tilda,

District- Raipur, Chhattisgarh

2.b - Kuleshwar Dewangan S/o Late Mehtaruram Dewangan, Aged About

55 Years R/o Village- Devgaon, Post- Khauna, Thana- Kharora, Tahsil-

Tilda, District- Raipur, Chhattisgarh

2.c - Tarachand Dewangan S/o Late Mehtaruram Dewangan, Aged About

53 Years R/o Village- Devgaon, Post- Khauna, Thana- Kharora, Tahsil-

Tilda, District- Raipur, Chhattisgarh

2.d - Kumar Dewangan S/o Late Mehtaruram Dewangan, Aged About 44

Years R/o Village- Devgaon, Post- Khauna, Thana- Kharora, Tahsil- Tilda,

District- Raipur, Chhattisgarh

2.e - Chunaman S/o Late Mehtaruram Dewangan, Aged About 42 Years R/o

Village- Devgaon, Post- Khauna, Thana- Kharora, Tahsil- Tilda, District-

Raipur, Chhattisgarh

2.f - Lukeshwar Dewangan S/o Mehtaruram Dewangan, Aged About 32

2

Years R/o Village- Devgaon, Post- Khauna, Thana- Kharora, Tahsil- Tilda,

District- Raipur, Chhattisgarh

3 - Smt. Janki Bai W/o Late Roop Singh Dewagan, R/o Sitla Chowl,

Mathpara Raipur, District : Raipur, Chhattisgarh

4 - Kapil Dewagan S/o Late Roop Singh Dewagan, R/o Sitla Chowl,

Mathpara Raipur, District : Raipur, Chhattisgarh

5 - Mahant Shri Ramsunder Das Guru Shri Rajeyshri Mahant Late Shri

Vishnav Das Dudhdhri Meth, Mathpara, Raipur, Distt. Raipur,

Chhattisgarh ................Defendants

... Respondents

(Cause Title taken from Case Information System)

For Appellant :Mr. Ashish Shrivastava, Senior Advocate

along with Mr. Anurag Verma, Mr.

Rohishek Verma and Mr. Ishan Rathore,

Advocates

For Respondent No.1/State:Mr. Arvind Dubey, Govt. Advocate

For Respondent No.5 :Mr. Vineet Kumar Pandey, Advocate

For other Respondents :None

Hon'ble Shri Ravindra Kumar Agrawal, Judge

C.A.V. J udgment

1.The present Second Appeal under Section 100 of the Code of Civil

Procedure has been filed by the plaintiff against the impugned

judgment and decree dated 24-10-2009, passed by the learned 10

th

Additional District Judge, Raipur, in Civil Appeal No. 06-A/2008,

whereby the first appeal filed by the plaintiff is dismissed and the

judgment and decree dated 04-02-2008, passed by learned 12

th

Civil

Judge Class-II, Raipur, in Civil Suit No. 24-A/2006 is affirmed.

2.For the sake of convenience, the status of the parties before the

learned trial court is referred to hereinafter in the present appeal.

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3.The Second Appeal is admitted on 09-02-2021 on the following

substantial question of law:-

“Whether both the Courts below are justified in

holding that Rajshi Vishnavdas has no right to

alienate the suit land in favour of Gayaram and

Roop Singh, therefore, the plaintiff/purchaser has

no title over the suit land, by recording a finding

which is perverse to the record?”

4.The plaintiff filed a suit for declaration of title and permanent

injunction over the suit land Kh. No. 419, area 2.00 acres and 5.53

acres of the same khasra number, situated at the village Mathpurena,

P.H. No. 105, Tahsil and District Raipur. It is pleaded by the plaintiff in

the plaint that he purchased the suit lands through two different

registered sale deeds dated 10-06-1965 from its owner, Gaya Ram

Dewangan and Roop Singh, and came into possession thereof. He is

still in possession of the suit lands. He gave the documents to the

concerned Patwari for mutation of his name in the revenue records,

and the concerned Patwari has entered the correction in the records

also at Sr. No. 320 and 322. In the year 2001-02, when the plaintiff

approached the Patwari to obtain a copy of the revenue records, he

informed him that the suit lands are recorded in the name of

Defendant No. 6, Guru Rajshri Vaishnav Das Ji, and the Collector is

the manager of the lands. Thereafter, he filed his application for

mutation of his name in the revenue records before the Tahsildar,

Raipur, on 08-10-2001, but due to his ill health, he could not pursue

his application and could not contact his counsel. When they

searched about the status of the case, they came to know that the

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mutation application of the plaintiff was dismissed for want of

prosecution on 17-02-2004. The plaintiff had filed an application on

15-03-2005, under Section 35(3) of the Chhattisgarh Land Revenue

Code, 1959, but the same has been returned by saying that, after

such a long time, it would not be proper to reopen the case for

mutation. Thereafter, he filed the present Civil Suit.

5.After service of summons, the defendants have not contested the suit

and have remained ex parte throughout the proceedings of the case

before the learned trial court.

6.The learned trial Court, on the basis of the pleading of the plaint and

documents annexed to the case, framed the following point for

determination:-

“In support of his case, the plaintiff Harishankar

Gupta, examined himself as P.W. 1, and relied upon

the documents of the Sale deeds dated 10-06-1965

as Ex. P-1 and P-2, Adhikar Abhilekh of the year

1976, as Ex. P-3, order sheet dated 17-02-2004 as

Ex. P-4, application of Section 35(3) of the C.G. Land

Revenue Code as Ex. P-5, copy of the sale deed

dated executed in favour of Gaya Ram Koshta and

Roop Singh Ex. P-6 and P-7.”

7.The learned trial Court, after hearing the plaintiff, passed its judgment

and decree on 04-02-2008 and dismissed the suit, holding that the

plaintiff could not prove that from the document Ex. P-3, the lands

were recorded as the land belongs to the Mandir trust, and the

Collector is the manager, and the land was sold by Mahant Vaishna

Das Ji without permission of the Collector, and he had no right to sell

the land to Gaya Ram and Roop Singh. Thus, Mahant Rajshri

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Vaishnav Das Ji had sold the land without any right, and the

purchaser has also not got any right or title over the suit lands.

8.The judgment and decree dated 04-02-2008 was challenged by the

plaintiff in the first appeal before the learned First Appellate Court,

which has also been dismissed vide its judgment and decree dated

24-10-2009, affirming the findings of the learned trial Court. Against

which the present second appeal has been filed. The second appeal

is admitted on 09-02-2021, which is set out in the earlier paragraph of

this judgment.

9.In the present second appeal, on 06-10-2020, the appellant has filed

an application under Order 41 Rule 27 read with Section 151 of the

C.P.C. (I.A. No. 06/2020), for taking additional evidence on record.

Along with the application, the appellant/plaintiff filed a copy of the

register maintained by the Registrar, Public Trust, Raipur, to show

that the Shri Balaji Swami Shri Dudhadhari Math Trust, Raipur, is

declared as a Public Trust on 19-04-1979, and therefore, the

permission of the Collector to alienate the property was not required.

At the same time, another application under Section 100 read with

Section 151 of the C.P.C. (I.A. No. 07/2020), for framing the

additional substantial question of law, and proposed the same.

10.Learned counsel for the appellant/plaintiff would submit on the

application for framing the additional substantial question of law (I.A.

No. 07/2020) that the case involved two additional substantial

questions of law, which are proposed in the application. These

substantial questions of law relate to the issue that the sale deed

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executed by Rajshi Vaishnav Das in favour of Gaya Ram and Roop

Singh on 29-01-1953, which is much before the registration of the

Trust, i.e. on 19-04-1979, has been ignored by the learned Courts

below, and not considering that the plaintiff is a bona fide purchaser

of the land, who purchased the land through two registered sale

deeds dated 10-06-1965 (Ex. P-1 and P-2) and is in possession of

the same since then. Therefore, the case involves the additional

substantial questions of law which ought to have been framed and

determined in the case.

11.He would further submit that the appellant/plaintiff has filed another

application under Order 41 Rule 27 of C.P.C., along with a copy of

the register maintained by the Registrar, Public Trust, Raipur, as

additional evidence, which clearly shows that the Temple Trust is

registered on 19-04-1979, which is much prior to the sale deed

registered in favour of Gaya Ram and Roop Singh. Therefore, there

was no requirement to obtain permission from the Collector. The

learned Trial Court as well as the first appellate Court have dismissed

the suit of the plaintiff on the ground that the suit lands belonged to

the Temple Trust and were alienated without permission of the

Collector, and thus, Rajshi Vaishnav Das was not competent to

alienate the same to Gaya Ram and Roop Singh. The additional

evidence is very relevant and vital document to establish that the

date on which the lands were sold to Gaya Das and Roop Singh by

Rajshi Vaishnav Das, the Trust was not registered and therefore, the

permission of Collector was not required and the sale deeds duly

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transferred the title of the suit lands to Gaya Ram and Roop Singh,

and they sold the suit lands to the plaintiff, which does not suffers

from any infirmity. Therefore, the application may be allowed, and the

additional evidence may be taken on record.

12.With respect to the substantial question of law framed on 09-02-2021,

he would submit that the plaintiff is the bona fide purchaser of the suit

lands, who purchased it through two registered sale deeds. He is in

possession of the same from the date of its purchase. It is only in the

year 2001-02, when he came to know that the name of the defendant

No. 5 is mutated in the revenue records, he filed the suit. The

pleadings and evidence of the plaintiff are unrebutted, and a decree

should have been passed in his favour. The sale deeds have not

been challenged by the defendant No. 5, and the possession of the

plaintiff over the suit lands is also not challenged by the defendants.

At the time when the sale deed was executed in favour of Gaya Ram

and Roop Singh, it was recorded in the name of Rajshi Vaishnav

Das. Only on the basis of an entry made in Adhikar Abhilekh of the

year 1976, that the suit land is the property of Temple Trust and sold

without permission of the Collector, the suit of the plaintiff is

dismissed. In the sale deeds, Ex. P-6 and P-7, there is no mention

that it was the property of Temple Trust. Therefore, the consideration

of the learned Trial Court and First Appellate Court is without any

basis and without any evidence from the defendants. The additional

evidence produced by the appellant/plaintiff is sufficient to hold that

the suit lands were not the property of Temple Trust, and the Temple

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Trust was registered later on. The inaction of the defendants to claim

their lands for such a long time entitled the plaintiff to a decree in his

favour. Therefore, the appeal may be allowed, and the decree may

be passed in favour of the plaintiff by setting aside the judgment and

decree passed by the learned Courts below.

13.Per contra, learned counsel for the Respondent/Defendant No. 5

opposes the submissions of the learned counsel for the appellant and

submits that although the Temple Trust is registered on 19-04-1979,

the proceeding for registration of the Temple Trust was initiated in the

year 1953-54 itself, as reflected from its case number, which is

12/33-9/1953-54. Therefore, it cannot be said that the Temple Trust is

registered on 19-04-1979, and all the transactions prior to the date of

its registration are valid transactions. The sale deeds in favour of

Gaya Ram and Roop Singh were said to have been executed by

Rajshi Vaishnav Das on 04-02-1963 (Ex. P-6 and P-7), during the

period when the registration of Temple Trust was under

consideration. The plaintiff has not proved by producing clear

evidence with respect to the ownership of the land with Rajshi

Vaishnav Das. He would further submit that the additional evidence is

also not relevant in the case with respect to ownership of the land

with Rajshi Vaishnav Das, but it is with respect to the date of

registration of Temple Trust, including the initiation of the proceeding

in the year 1953-54. Despite having the opportunity to file it before

the learned trial Court, it has not been filed. When the suit of the

plaintiff is dismissed, then also the said document has not been filed,

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and now it is filed in the second appellate stage, which cannot be

taken into consideration. He would further submit that the vendor of

the suit land, Rajshi Vaishnav Das, did not have a valid title with him

and therefore, the alienation by him does not transfer a valid title to

its purchaser and the plaintiff, who is the ultimate purchaser, cannot

hold that he is the title holder of the suit lands. The learned trial

Court, as well as the first appellate Court, has rightly dismissed the

suit of the plaintiff, and the appeal is also liable to be dismissed.

14.Learned counsel appearing for the State also supported the judgment

and decree passed by the learned Courts below and submitted that

the plaintiff has failed to prove the title of Rajshi Vaishnav Das to

alienate the suit lands to Gaya Ram and Roop Singh, as the same

was the property of Temple Trust and Rajshi Vaishnav Das was only

a Mahant of the Trust. He was only a manager of the Trust property,

and without the permission of the Collector, he could not alienate the

property belonging to the Trust. The purchaser could not get the title

from such transaction. The plaintiff has failed to produce sufficient

documentary evidence with respect to the title of Rajshi Vaishnav

Das over the suit land, and therefore, the learned Courts below have

rightly dismissed the suit of the plaintiff, which does not suffer from

any perversity or illegality.

15.I have heard learned counsel for the parties and perused the record

of the trial Court as well as the first appellate Court and applications/

documents produced in the present appeal as additional evidence.

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Consideration with respect to the application of

Section 100 read with Section 151 of the C.P.C. (I.A.

No. 07/2020) filed by the appellant/plaintiff.

16.Under Section 100 (4) of the C.P.C., the appellant can argue only on

the substantial question of law formulated in the second appeal.

However, the proviso to Section 100 (5) of the C.P.C. empowers the

Court to hear the appeal in any other substantial question of law, not

formulated by the Court at the time of admission of appeal, subject to

two conditions, i.e. (1) that the Court should be satisfied that the case

involves other substantial question of law and (2) the Court must

record reason for hearing of appeal on any other substantial question

of law not formulated by the Court at the time of admission. The

proviso of sub-section (5) of Section 100 of C.P.C. is a repository of

judicial discretion. The powers, although not unbridled, are yet

enough to impress all such questions which deserve consideration to

subserve the ends of justice.

17.These two additional substantial questions of law proposed by the

plaintiff/appellant in his application (I.A. No. 07/2020) are as under:-

“(i) Whether learned Courts below were justified in

rejecting the civil suit as well as civil appeal merely

taking into consideration the noting of Patwari Halka

in register (Ex. P/3) ignoring the fact that the

transaction in respect of land in question in between

Rajshi Vishnavdas and Gayaram and Roop Singh

was held vide registered sale deed executed on

29/01/1953 (Ex. P/6 & Ex. P/7), much before the

declaration and establishment of Temple Trust, vide

order dated 19/04/1979 issued by the Registrar,

Public Trust, Raipur?

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(ii) Whether learned Courts below were justified by

not granting decree in favour of the appellant/

plaintiff in respect of the land in question whereas,

appellant/plaintiff is a bonafide purchaser pursuant

to execution of registered sale deed vide dated

10/06/1965 (Ex. P/1 & Ex. P/2) and the

appellant/plaintiff was in peaceful possession since

1965 and the transaction was held much before the

declaration and establishment of Temple Trust, vide

order dated 19/04/1979 issued by the Registrar,

Public Trust, Raipur?”

18.From perusal of the record of the learned trial Court, it transpires that

neither was there any pleading nor evidence as to when the Temple

Trust was registered. There was no pleading in the plaint that Rajshi

Vaishna Das had sold the land to Gaya Das and Roop Singh on

29-01-1953 (the documents Ex. P-3 bear the date of 29-01-1963, and

the documents Ex. P-6 and P-7 mentioned the date of 04-02-1963).

In the absence of any material on record to show that the Trust of the

Temple was registered on 19-04-1979, the learned Courts below had

no occasion to consider the same, and therefore, the same cannot be

held to be the substantial question of law involved in the appeal. The

second proposed substantial question of law is with respect to the

bona fide purchaser of the plaintiff, which covers the substantial

question of law framed in the appeal, for the reason that if, it is held

in the appeal that Rajshi Vaishnavdas was having right to alienate the

land to Gaya Das and Roop Singh, then the alienation made by Gaya

Das and Roop Singh also comes to its validation and the right and

title of the plaintiff would arose. The substantial question of law

formulated in the case on 09-02-2021 involves the issue “whether

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Rajshi Vishnavdas has no right to alienate the suit land in favour of

Gayaram and Roop Singh”, which inherently includes the date of

declaration of the temple Trust, subject to evidence available on

record. Further, the application was filed on 06-10-2020, and after

hearing the parties on 09-02-2021, i.e. after filing the application of

I.A. No. 07/2020, the coordinate bench of this Court has framed a

substantial question of law, which amounts to consideration of the

issue involved in the appeal. Therefore, the application filed by the

appellant/plaintiff under Section 100 read with Section 151 of the

C.P.C. (I.A. No. 07/2020) is rejected.

Consideration on the substantial question of law

19.The issue involved in the present case is the competency of Rajshi

Vaishnav Das to alienate the lands of Kh. No. 419 area 2.00 acres

and 5.53 acres, to Gaya Ram and Roop Singh. The said alienation by

Rajshi Vaishnav Das was made through the sale deed Ex. P-6 and

P-7 registered on 04-02-1963. Thereafter, vide sale deeds dated

10-06-1965 (Ex. P-1 and P-2), the suit lands were sold by Gaya Ram

and Roop Singh to the plaintiff. In the Adhikar Abhilekh of the year

1976 (Ex. P-3), it is mentioned that “;g Hkwfe eafnj dh gSA dysDVj dh eatwjh ds

fcuk fcdzh dh gSA rglhynkj lk0 dks HkstsaA” When the document Ex. P-3 relied

by the plaintiff himself and the Revenue Authority stated that the suit

land is of Temple’s property, which has been alienated without

permission of the Collector, then the plaintiff, who is claiming title over

the suit land, should have produced sufficient evidence that the suit

land comes to Gaya Ram and Roop Singh from Rajshi Vaishnav Das,

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who owned the same. He should have produced the relevant

revenue records or any deed of title of Rajshi Vaishnav Das, by which

he acquired title over the property. The plaintiff was well within the

knowledge of the issue of alienable title of Rajshi Vaishnav Das over

the suit land to alienate in favour of Gaya Ram and Roop Singh. If

the title of Rajshi Vaishnav Das is not established, no title can be

passed in favour of the purchaser, Gaya Ram and Roop Singh, and

in turn, the purchaser/plaintiff would also not get any title over it

through the alienation made by Gaya Ram and Roop Singh in his

favour.

20.It is settled law that no one can transfer a better interest than what he

has over the property. In the matter of “Umadevi Nambiar v.

Thamarasseri Roman Catholic Diocese”, 2022 (7) SCC 90, the

Hon’ble Supreme Court has held that:-

“19. It is a fundamental principle of the law of

transfer of property that “no one can confer a better

title than what he himself has” (Nemo dat quod non

habet). The appellant’s sister did not have the power

to sell the property to the vendors of the

respondent. Therefore, the vendors of the

respondent could not have derived any valid title to

the property. If the vendors of the respondent

themselves did not have any title, they had nothing

to convey to the respondent, except perhaps the

litigation. ”

21.In view of the entry made in Adhikar Abhilekh (Ex. P-3), the learned

trial Court examined the evidence produced by the plaintiff with

respect to the alienable title of Rajshi Vaishnav Das. It is also the

case of the plaintiff that in the year 2001-02, he came to know that

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the suit land is recorded in the name of Rajshi Vaishnav Das, and the

Collector is the manager of the property. There is no evidence about

the source of the title of Rajshi Vaishnav Das to alienate the suit land

to Gaya Ram and Roop Singh. Even the plaintiff has not filed any

document of his possession over the suit land. If the plaintiff is

continuously in possession and cultivating the same, there should be

some documents with respect to payment of its land revenue,

irrigation taxes, revenue entry or any crop details. There is also no

evidence to show that the suit land was in the exclusive ownership of

Rajshi Vaishnav Das, or that he was the title and possession holder

of the suit land in his individual capacity and not under the capacity of

Mahant of the Math.

22.From the evidence produced by the plaintiff, it could not be

established that Rajshi Vaishnav Das had an alienable title with him

to execute the sale deeds of the suit land in favour of Gaya Ram and

Roop Singh, and therefore, the sale made by an unauthorized person

cannot convey title to its purchaser and the ultimate purchaser, i.e.

the plaintiff, would also not get any title over the suit land. Until the

title of Rajshi Vaishnav Das is established, the plaintiff also could not

get any title over the same. The evidence produced by the plaintiff is

not sufficient to properly adjudicate the issue as to whether Rajshi

Vaishnav Das had an alienable title with him to sell the suit land to

Gaya Ram and Roop Singh or not. In the absence of sufficient

evidence, the judgment and decree passed by the learned Courts

below do not suffer from any illegality or perversity, subject to

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consideration of additional evidence produced by the plaintiff in the

second appeal.

Consideration with respect to the application of Order

41 Rule 27 read with Section 151 of the C.P.C. (I.A. No.

06/2020) filed by the appellant/plaintiff.

23.In the second appeal, the plaintiff filed an application for taking

additional evidence on record, which is a copy of the register of the

Registrar, Public Trust, Raipur, in which the details of the “Shri Balaji

Swami Shri Dudhadhari Math Trust, Raipur” are given. It is the

submission of the plaintiff with respect to the additional evidence that

the Trust itself was registered on 19-04-1979 and therefore, the

alienation made 04-02-1963 in favour of Gaya Ram and Roop Singh

through two registered sale deeds (Ex. P-6 and P-7) does not require

permission of the Collector, because at that time there was no trust,

and the sale made by him is valid and conveyed title upon the

purchasers. Therefore, he prayed for taking additional evidence on

record and to pass a decree in his favour.

24.Production of additional evidence in the appellate Court is provided

under Order 41 Rule 27 of the C.P.C., which says that a party to the

appeal shall not be permitted to produce additional evidence, either

oral or documentary, but under certain conditions, it may be

permitted. It is necessary to notice here the provisions of Order 41

Rule 27 of the C.P.C., which reads as under:-

“27. Production of additional evidence in Appellate

Court.— (1) The parties to an appeal shall not be entitled

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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.”

25.In the matter of “Wadi v. Amilal and others”, 2015 (1) SCC 677, the

Hon’ble Supreme Court has held that the requirement of additional

evidence by the Court in order to do justice and if the document in

question would throw light on the germane issue and is necessary for

pronouncing judgment, it can be taken on record. In para 5, it has

been held that:-

“5. Now it is clear that Rule 27 deals with production of

additional evidence in the appellate court. The general

principle incorporated in Sub-rule (1) is that the parties

to an appeal are not entitled to produce additional

evidence (oral or documentary) in the appellate court

to cure a lacuna or fill up a gap in a case. The

exceptions to that principle are enumerated thereunder

in Clauses (a), (a) and (b). We are concerned here with

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Clause (b) which is an enabling provision. It says that

if the appellate court requires any document to be

produced or any witness to be examined to enable it to

pronounce judgment, it may allow such document to

be produced or witness to be examined. The

requirement or need is that of the appellate court

bearing in mind that the interest of justice is

paramount. If it feels that pronouncing a judgment in

the absence of such evidence would result in a

defective decision and to pronounce an effective

judgment admission of such evidence is necessary,

Clause (b) enables it to adopt that course. Invocation

of Clause (b) does not depend upon the vigilance or

negligence of the parties for it is not meant for them. It

is for the appellant to resort to it when on a

consideration of material on record it feels that

admission of additional evidence is necessary to

pronounce a satisfactory judgment in the case. ”

26.The document, which is sought to be produced as additional

evidence, is a copy of the register of the Registrar, Public Trust,

Raipur, in which certain details of the “Shri Balaji Swami Shri

Dudhadhari Math Trust, Raipur” are given. In column No. 3, the name

of Mahant Vaishnav Das, Guru Mahant, is mentioned, and in column

No. 4, “VªLV MhM 12&11&63 ds vuqlkj” is mentioned. In column No. 9, the

details of properties are mentioned, and in column No. 10, the details

of the order and case number are mentioned. In column No. 10, it is

mentioned that “Jh vkbZ- ,u- Lokeh vfrfjDr dysDVj ,oa jftLVªkj ifCyd VªLV] jk;iqj

dk jktLo izdj.k Øekad 12@33&9@o"kZ 1953&54 esa ikfjr vkns’k fnukad 19&04&1979 ds

vuqlkj VªLV ?kksf"kr fd;k x;kA”. It further transpires from the case number

that the said proceeding was started in the year 1953-54, but from

column No. 4, it transpires that the trust deed was prepared on

12-11-1963; however, the order was passed on 19-04-1979. Though

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this document is also not sufficient to determine the issue involved in

the case, but has some bearing to throw light on the issue as to when

the trust was registered and under what capacity, the sale deed was

executed by Rajshi Vaishnav Das, in favour of Gaya Ram and Roop

Singh, and whether the suit land were hold by the Trust or by Rajshi

Vaishnav Das in his individual capacity or as the Mahant of the Math.

The position of Mahant of a Math is just a manager of the Math, with

wider powers than those possessed by a manager or trustee of the

Temple. He has a dual capacity as he is the manager of the

properties and the spiritual head of the Math. The Mahant holds the

properties of the Math for a certain specific purpose as laid down by

the founder or by usage. Although the Mahant is the head of the

Math, the property dedicated to a Math doesn’t vest in him, but it

vests in the Math itself as a juristic person. The “Math” is defined

under Section 2(2) of the Chhattisgarh Public Trust Act, 1951, and

according to which Math means an institution for the promotion of the

Hindu religion presided over by a person whose duty is to engage

himself in imparting religious instructions or rendering spiritual

services to a body or discipline and includes places of religious

worship or instructions which are appurtenant to the institution.

27.Thus, this court is of the opinion that the document produced by the

plaintiff as additional evidence is relevant and vital for deciding the

substantial question of law involved in the case, which sheds some

light on the controversy between the parties. Accordingly, the

application filed by the plaintiff under Order 41 Rule 27 read with

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Section 151 of C.P.C. (I.A. No. 06/2020) is allowed, and additional

evidence is taken on record.

28.Now, another question arises about the mode of taking additional

evidence on record after allowing the application of Order 41 Rule 27

of C.P.C. When the additional evidence is taken on record, the

provision of Order 41 Rule 28 of C.P.C. has to be followed. In view of

the provision of Order 41 Rule 27 of C.P.C., it is clear that the

appellate Court, once allowed the application filed under Order 41

Rule 27 CPC, it should have either recorded the statements of the

parties or should have directed the trial Court to record the statement

from whose decree the Appeal is preferred or of any other

subordinate Court, who in turn, after recording the evidence, as the

appellate Court may have directed, could have proceeded to record

the statement of the parties and send the same to the concerned

appellate Court. This is the procedure that should have been followed

under such circumstances by the lower appellate Court.

29.While considering such a situation, it was observed by the Hon’ble

Supreme Court in the matter of “ H.P. Vedavyasachar vs.

Shivashankara and Another”, 2009 (8) SCC 231 at para 7 as

under:-

“7........When an application for adducing additional

evidence is allowed the appellate court has two

options open to it. It may record the evidence itself

or it may direct the trial court to do so.”

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30.Similar is the view taken by the Hon’ble Supreme Court in the matter

of “Uttaradi Mutt vs. Raghavendra Swamy Mutt” (2018) 10 SCC

484, wherein it has been observed at para 19 as under:-

“19. The High Court could have issued directions to

the first appellate court to determine any question of

fact including the existence and genuineness of the

additional evidence or for that matter, whether the

contents of the said documents had been duly

proved by the party relying thereon. After recording

the evidence in support of such relevant matters as

the High Court may have directed, the first appellate

court could proceed to try such issues and return

the evidence to the High Court together with its

findings thereon within the prescribed time. Such a

course was permissible in terms of Rule 28 of Order

41 of CPC. And on receipt of the report, the High

Court could then consider the substantial questions

of law already framed while admitting the second

appeal and finally decide the same on all issues.”

31.In light of the principles laid down in the above-mentioned judgments,

and the issue involved in the case, and also in view of the additional

evidence produced by the plaintiff, it would be appropriate to remit

the case to the learned trial court to decide the case afresh, who shall

proceed to record evidence of the parties based upon the additional

documentary evidence produced before this Court, and to provide

proper opportunity of hearing to the parties and to lead their

evidence, in accordance with law. The opposite party are also entitled

to cross-examination of the witnesses produced by either party.

32.Accordingly, the substantial question of law is answered that

presently, there is no sufficient evidence that demonstrates the

alienable title of the suit land with Rajshi Vaishnav Das; however, the

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matter is remitted back to the trial Court to decide the case afresh in

view of the additional evidence produced by the plaintiff.

33.The additional documentary evidence produced before this court

shall also be transmitted to the learned trial Court for taking it on

record. The parties are directed to appear before the concerned Trial

Court on 20-01-2026, and the Trial Court shall decide the case in

accordance with law.

34.As a result, the judgment and decree passed by the learned trial

Court as well as the First Appellate Court are set aside and the

appeal is allowed to the extent indicated hereinabove.

35.Parties shall bear their own cost(s).

Sd/-

(Ravindra Kumar Agrawal)

Judge

ved