Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1374 of 2008

Union of India ....Appellant

Versus

Ibrahim Uddin & Anr. ....Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. This appeal has been preferred against the impugned

judgment and decree dated 19.4.2007 passed by the High Court of

Judicature at Allahabad in Second Appeal No.289 of 2000 by which

it has upheld the judgment and decree of the first appellate Court

dated 15.10.1999 passed in Civil Appeal No.81 of 1998 by which

the first appellate Court had reversed the judgment and decree of the

Civil Court dated 20.1.1998 passed in Original Suit No.442 of 1995

wherein the plaintiff/respondent no.1 had sought declaration of title

of the ownership in respect of the suit property.

Page 2 2. Facts and circumstances giving rise to this appeal are:

A. Plaintiff/respondent no.1-Ibrahim Uddin filed Original Suit

No.442 of 1995 in the Court of Civil Judge, Agra on 25.7.1995

seeking a decree for declaration that he was the owner of the suit

property (Agriculture land measuring 25 bighas), making averments

that the suit land originally had been with the Maratha Government

(Scindia-Gwalior). The ancestors of the plaintiff having close

association with the Maratha Government, were made a grant in

respect of the suit land in the year 1800. Subsequently, the land was

partitioned between the ancestors of the plaintiff in the year 1819.

The plaintiff/respondent no.1 being the only heir (descendant) of

Smt. Hasin Begum and Zafaruddin became the absolute owner of the

land after the death of his mother Smt. Hasin Begum. The said land

was never sold, alienated, transferred or gifted to any person either

by the plaintiff or his ancestors at any point of time. The suit land

was given on rent to the State authorities in Agra by executing a rent

note for a sum of Rs.22/- per month. The Union of India claimed

title over the suit land illegally and in an unauthorised manner on

22.2.1993 and afterwards, thus the cause of action arose to approach

the court.

2

Page 3 B. The defendant no.1/appellant filed the written statement

denying the averments and ownership of the plaintiff/respondent

no.1 and averred that the land belonged to the Ministry of Defence,

i.e., Union of India, a part of which has been leased out to several

persons for agriculture work and their lease has been renewed from

time to time. As they became unauthorised occupants, proceedings

had been initiated in accordance with law and eviction order had

been passed against the occupants/tenants.

C. In view of the pleadings, 8 issues were framed by the Trial

Court and after appreciating the evidence on record, the trial Court

came to the conclusion that Pedigree produced by the plaintiff

alongwith the plaint was not successfully proved; the plaintiff could

not prove any kind of grant by the Maratha Government to his

ancestors/great-grandfathers in the year 1800. Plaintiff failed to

prove the partition between his ancestors in 1819. The lease deed

alleged to have been executed in favour of the Military Estate

Officer under the Union of India, appellant/defendant No.1, was not

successfully proved. In view of the above, the suit was dismissed

vide judgment and decree dated 20.1.1998.

D. Aggrieved, the plaintiff/respondent no.1 preferred the first

appeal before the District Judge, Agra. During the pendency of the

3

Page 4 said appeal, he preferred an application under Order XLI Rule 27 of

the Code of Civil Procedure 1908 (hereinafter called “CPC”) on

6.4.1998 for adducing additional evidence, i.e., Will executed by his

maternal grandfather dated 1.3.1929 in his favour bequeathing the

suit property. The said application was allowed by the first appellate

Court vide order dated 28.4.1999. The First Appeal itself stood

allowed by the first appellate Court vide judgment and decree dated

15.10.1999 wherein the first appellate Court came to the conclusion

that Maratha Government had made the gift of land in favour of

plaintiff’s fore-fathers which was subsequently partitioned. The

registered partition deed stood duly proved and it was the proof of

the title of the plaintiff/respondent no.1. The plaintiff/respondent

no.1 made an application for inspection of the record before the

officers of the appellant/defendant no.1 but perusal of the record was

not permitted. The appellant/defendant no.1 did not produce any

document to show its title and failed to produce the original record,

thus, adverse inference was drawn against it in view of the

provisions of Section 114 clause(g) of the Indian Evidence Act, 1872

(hereinafter called the Evidence Act). The Will, taken on record as

an additional evidence at appellate stage stood proved and thus,

contents thereof automatically stood proved.

4

Page 5 E. Aggrieved, the appellant preferred Second Appeal before the

High Court which has been dismissed vide impugned judgment and

decree. Hence, this appeal.

3. Shri R.P. Bhatt, learned Senior counsel duly assisted by Ms.

Madhurima Tatia, Advocate has submitted that there was no

documentary evidence or trustworthy oral evidence that the suit

property had been given to the fore-fathers of the

plaintiff/respondent no.1 by the Maratha Government in the year

1800. Same remained the factual aspect in respect of alleged

partition among his fore-fathers in the year 1819. The first appellate

Court had no occasion to decide the application under Order XLI

Rule 27 CPC prior to the hearing of the appeal itself. More so, as

there has been no reference to the Will in the plaint or First Appeal,

thus, it could not be taken on record for want of pleadings in this

respect. Further, taking the Will on record did not mean that either

the Will or its contents stood proved. None had proved the said Will

and thus, could not be relied upon. If the Will is ignored, there is no

evidence on record to prove the case of the plaintiff/respondent no.1.

The High Court had framed 4 substantial questions of law at

the time of admission of the appeal and 2 additional substantial

questions at a later stage but did not answer either of them nor

5

Page 6 recorded any finding that none of them was, in fact, a substantial

question of law, rather the appeal has been decided placing reliance

on the Will, which was liable to be ignored altogether and making

reference to the record of the Cantonment Board. In case, the Union

of India did not produce the revenue record before the trial Court,

the first appellate Court has wrongly drawn adverse inference under

Section 114(g) of the Evidence Act. Thus, the appeal deserves to be

allowed.

4. Per contra, Shri Asok Ganguly and Shri C.L. Pandey,

learned Senior counsel with Shri Vibhor Garg, Advocate vehemently

opposed the appeal contending that concurrent findings recorded by

the first and second appellate Court are not liable to be interfered

with in discretionary jurisdiction under Article 136 of the

Constitution of India, 1950. The registered partition deed of 1819 is

the proof of title of the plaintiff/respondent no. 1. In view of the fact

that the Second Appeal could be decided on limited issues, the High

Court was not bound to answer the substantial questions of law,

framed by it. The appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

6

Page 7 Presumption under Section 114(g) of the Evidence Act :

6. Generally, it is the duty of the party to lead the best

evidence in his possession, which could throw light on the issue in

controversy and in case such material evidence is withheld, the

Court may draw adverse inference under Section 114(g) of the

Evidence Act notwithstanding, that the onus of proof did not lie on

such party and it was not called upon to produce the said evidence.

(Vide: Murugesam Pillai v. Gnana Sambandha Pandara

Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors.,

AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma &

Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal

Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v.

Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat

Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024;

Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and

Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011)

9 SCC 126).

7. However, in Mt. Bilas Kunwar v. Desraj Ranjit Singh,

AIR 1915 PC 96, a view has been expressed that it is open to a

litigant to refrain from producing any document that he considers

irrelevant; if the other litigant is dissatisfied, it is for him to apply for

7

Page 8 interrogatories/inspections and production of documents. If he fails

to do so, neither he nor the Court at his suggestion, is entitled to

draw any inference as to the contents of any such documents.

8. In Kamma Otukunta Ram Naidu v. Chereddy Pedda

Subba Reddy & Ors., AIR 2003 SC 3342, this Court held that all

the pros and cons must be examined before drawing an adverse

inference against a party. In that case the issue had been, as to

whether two persons had been travelling together in the vehicle and

presumption had been drawn only on the basis that the bus tickets of

both the persons were not produced. This Court held that

presumption could not have been drawn if other larger evidence

was shown to the contrary. (See also: Mohinder Kaur v. Kusam

Anand, (2000) 4 SCC 214; and Takhaji Hiraji v. Thakore

Kubersing Chamansing & Ors., AIR 2001 SC 2328).

9. In Municipal Corporation, Faridabad v. Siri Niwas, AIR

2004 SC 4681, this Court has taken the view that the law laid down

by this Court in Gopal Krishnaji Ketkar (supra) did not lay down

any law, that in all situations the presumption in terms of clause (g)

of Section 114 of the Evidence Act must be drawn.

8

Page 9 10.In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan

Das & Anr., AIR 1967 SC 256, this Court held that mere

withholding of documentary evidence by a party is not enough to

draw adverse inference against him. The other party must ask the

party in possession of such evidence to produce the same, and in

case the party in possession does not produce it, adverse inference

may be drawn:

“It is true that the defendant-respondent also did

not call upon the plaintiff-appellant to produce the

documents whose existence was admitted by one or

the other witness of the plaintiff and that therefore,

strictly speaking, no inference adverse to the

plaintiff can be drawn from his non-producing the

list of documents. The Court may not be in a

position to conclude from such omission that those

documents would have directly established the case

for the respondent. But it can take into

consideration in weighing the evidence or any

direct inferences from established facts that the

documents might have favoured the respondent

case.”

11.In Ramrati Kuer v. Dwarika Prasad Singh & Ors., AIR

1967 SC 1134, this Court held:

“It is true that Dwarika Prasad Singh said that his

father used to keep accounts. But no attempt was

made on behalf of the appellant to ask the court to

order Dwarika Prasad Singh to produce the

accounts. An adverse inference could only have

been drawn against the plaintiffs-respondents if

the appellant had asked the court to order them to

produce accounts and they had failed to produce

them after admitting that Basekhi Singh used to

9

Page 10 keep accounts. But no such prayer was made to the

court, and in the circumstances no adverse

inference could be drawn from the non-production

of accounts.”

(See also: Ravi Yashwant Bhoir v. District Collector, Raigad &

Ors., AIR 2012 SC 1339).

12.In Smt. Indira Kaur & Ors. v. Shri Sheo Lal Kapoor,

AIR 1988 SC 1074, the lower courts drew an adverse inference

against the appellant-plaintiff on the ground that the plaintiff was not

ready and willing to perform his part of the contract. The question

arose as to whether the party had the means to pay. The court further

held that before the adverse inference is drawn against a particular

party, the conduct and diligence of the other party is also to be

examined. Where a person deposed that as he had deposited the

money in the Bank and the other party did not even ask as on what

date and in which Bank the amount had been deposited and did not

remain diligent enough, the question of drawing adverse inference

against such a person for not producing the Pass Book etc. cannot be

drawn.

13.In Mahendra L. Jain & Ors. v. Indore Development

Authority & Ors., (2005) 1 SCC 639, this Court held that mere

non-production of documents would not result in adverse inference.

10

Page 11 If a document was called for in the absence of any pleadings, the

same was not relevant. An adverse inference need not necessarily

be drawn only because it would be lawful to do so.

14.In Manager, R.B.I., Bangalore v. S. Mani & Ors., AIR

2005 SC 2179, this Court dealt with the issue wherein the Industrial

Tribunal directed the employer to produce the attendance register in

respect of the first party workmen. The explanation of the appellant

was that the attendance registers being very old, could not be

produced. The Tribunal, however, in its award noticed the same and

drew an adverse inference against the appellants for non-production

of the attendance register alone. This Court reversed the finding

observing:

“As noticed hereinbefore, in this case also the

respondents did not adduce any evidence

whatsoever. Thus, in the facts and circumstances

of the case, the Tribunal erred in drawing an

adverse inference.

The initial burden of proof was on the workmen

to show that they had completed 240 days of

service. The Tribunal did not consider the question

from that angle. It held that the burden of proof was

upon the appellant on the premise that they have

failed to prove their plea of abandonment of

service”

(See also: A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M.

Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; and

Pratap Singh & Anr. v. State of M.P., AIR 2006 SC 514).

11

Page 12 15.Order XI CPC contains certain provisions with the object to

save expense by obtaining information as to material facts and to

obtain admission of any fact which he has to prove on any issue.

Therefore, a party has a right to submit interrogatories relating to the

same matter in issue. The expression “matter” means a question or

issue in dispute in the action and not the thing about which such

dispute arises. The object of introducing such provision is to secure

all material documents and to put an end to protracted enquiry with

respect to document/material in possession of the other party. In

such a fact-situation, no adverse inference can be drawn against a

party for non-production of a document unless notice is served and

procedure is followed. Under Rule 14 of Order XI, the court is

competent to direct any party to produce the document asked by the

other party which is in his possession or power and relating to any

material in question in such suit. Rule 15 Order XI provides for

inspection of documents referred to in pleadings or affidavits. Rule

18 thereof, empowers the court to issue order for inspection. Rule 21

thereof provides for very stringent consequences for non-compliance

with the order of discovery, as in view of the said provisions in case

the party fails to comply with any order to answer interrogatories or

for discovery or inspection of documents, he shall, if he is a plaintiff,

12

Page 13 be liable to have his suit dismissed for want of prosecution and if he

is a defendant, to have his defence, if any, struck out and to be

placed in the same position as if he had not defended, and the party

interrogating or seeking discovery or inspection may apply to the

court for an order to that effect. Thus, in view of the above, the suit

may be dismissed for non-compliance of the aforesaid orders by the

plaintiff and the plaintiff shall also be precluded from bringing a

fresh suit on the same cause of action. Similarly, defence of the

defendant may be struck off for non-compliance of such orders.

16.Thus, in view of the above, the law on the issue can be

summarised to the effect that, issue of drawing adverse inference is

required to be decided by the court taking into consideration the

pleadings of the parties and by deciding whether any

document/evidence, withheld, has any relevance at all or omission of

its production would directly establish the case of the other side.

The court cannot loose sight of the fact that burden of proof is on the

party which makes a factual averment. The court has to consider

further as to whether the other side could file interrogatories or apply

for inspection and production of the documents etc. as is required

under Order XI CPC. Conduct and diligence of the other party is

also of paramount importance. Presumption or adverse inference for

13

Page 14 non-production of evidence is always optional and a relevant factor

to be considered in the background of facts involved in the case.

Existence of some other circumstances may justify non-production

of such documents on some reasonable grounds. In case one party

has asked the court to direct the other side to produce the document

and other side failed to comply with the court’s order, the court may

be justified in drawing the adverse inference. All the pros and cons

must be examined before the adverse inference is drawn. Such

presumption is permissible, if other larger evidence is shown to the

contrary.

17.In the instant case, admittedly, the plaintiff/respondent no.1

during the pendency of his suit had made an application before the

authorities under the control of the appellant/defendant no.1 to make

the inspection. However, he was not permitted to have any

inspection. The plaintiff/respondent no.1 did not submit any

interrogatory statement or an application for making inspection or

for production of the document as provided under Order XI CPC. In

such a fact-situation, in view of the law referred to hereinabove, it is

not permissible for the first appellate Court or the High Court to

draw any adverse inference against the appellant/defendant no.1.

14

Page 15 Admissions:

18.The first appellate court while dealing with the issue of

admission and proof of documents held as under:

“The plaintiff has produced will dated l.3.1929 of

his maternal grandfather, Syed Nazim Ali which

the court had taken on record on 28.4.99 and the

defendant No.1 was given one week time for

producing the rebuttal, but the defendant No.1

did not produce any paper against the Will.

Therefore, it has been given in section 58 of the

Evidence that if the defendant does not produce

any paper in rebuttal, then it means that he

admitted the paper produced by the plaintiff. There

is no need of proving the same.” (Emphasis added)

19.The question does arise as to whether not filing a document

in rebuttal of a document amounts to an admission and whether the

provisions of Section 58 of the Evidence Act are attracted.

Order XII CPC deals with admission of the case, admission of

the documents and judgment on admissions. Rule 1 thereof provides

that a party to a suit may give notice by his pleading or otherwise in

writing that he admits the truth of the whole or any party of the case

of any other party. Rule 2 deals with notice to admit documents – it

provides that each party may call upon the other party to admit

within 7 days from the date of service of the notice of any document

saving all such exceptions. Rule 2A provides that a document could

15

Page 16 be deemed to have been admitted if not denied after service of

notice to admit documents.

20. Admission is the best piece of substantive evidence that an

opposite party can rely upon, though not conclusive, is decisive of

the matter, unless successfully withdrawn or proved erroneous.

Admission may in certain circumstances, operate as an estoppel. The

question which is needed to be considered is what weight is to be

attached to an admission and for that purpose it is necessary to find

out as to whether it is clear, unambiguous and a relevant piece of

evidence, and further it is proved in accordance with the provisions

of the Evidence Act. It would be appropriate that an opportunity is

given to the person under cross-examination to tender his

explanation and clear the point on the question of admission.

(Vide: Narayan Bhagwantrao Gosavi Balajiwale v. Gopal

Vinayak Gosavi & Ors., AIR 1960 SC 100; Basant Singh v.

Janki Singh & Ors., AIR 1967 SC 341; Sita Ram Bhau Patil v.

Ramchandra Nago Patil, AIR 1977 SC 1712; Sushil Kumar v.

Rakesh Kumar, AIR 2004 SC 230; United Indian Insurance Co

Ltd. v. Samir Chandra Choudhary., (2005) 5 SCC 784; Charanjit

lal Mehra & Ors v. Kamal Saroj Mahajan & Anr., AIR 2005 SC

16

Page 17 2765; and Udham Singh v. Ram Singh & Anr., (2007) 15 SCC

529.)

21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors., AIR

1956 SC 593, this Court held that admission made by a party is

admissible and best evidence, unless it is proved that it had been

made under a mistaken belief. While deciding the said case reliance

has been placed upon the judgment in Slatterie v. Pooley, (1840) 6

M & W 664, wherein it had been observed “What a party himself

admits to be true, may reasonably be presumed to be so.”

22.In L.I.C of India & Anr v. Ram Pal Singh Bisen, (2010) 4

SCC 491, this Court held that “failure to prove the defence does not

amount to an admission, nor does it reverse or discharge the burden

of proof of the plaintiff.”

23.In view of the above, the law on the admissions can be

summarised to the effect that admission made by a party though not

conclusive, is a decisive factor in a case unless the other party

successfully withdraws the same or proves it to be erroneous. Even if

the admission is not conclusive it may operate as an estoppel. Law

requires that an opportunity be given to the person who has made

admission under cross-examination to tender his explanation and

17

Page 18 clarify the point on the question of admission. Failure of a party to

prove its defence does not amount to admission, nor it can reverse or

discharge the burden of proof of the plaintiff.

24.In the instant case, the Court held that not filing any

document in rebuttal of the Will dated 1.3.1929 amounts to

admission of the said Will as well as it contents. Without following

the procedure as required under Order XII CPC or admission having

not been made during the course of hearing before the Court, the

question of application of Section 58 of the Evidence Act could not

arise. Section 58 provides that a fact may not need to be proved in

any proceeding which the parties thereto agreed to admit at the

hearing or which, before the hearing, they agree to admit by any

writing under their hands or which they admitted by their pleading,

even in that case court may, in its discretion, even if such a

admission has been made by the party, require the fact admitted to

be proved otherwise than by such admission. In fact, admission by a

party may be oral or in writing. `Admissions’ are governed under

Sections 17 to 31 of the Evidence Act and such admission can be

tendered and accepted as substantive evidence. While admission for

purposes of trial may dispense with proof of a particular fact.

Section 58 deals with admissions during trial i.e. at or before the

18

Page 19 hearing, which are known as judicial admissions or stipulations

dispense it with proof. Admissions are not conclusive proof but may

operate as estoppel against its maker. Documents are necessarily

either proved by witness or marked on admission.

In view of above, it is evident that the first appellate court

has misdirected itself so far as the issue of admission is concerned.

The finding recorded by it that appellant/defendant No.1 failed to

produce any document in rebuttal of the Will is not only wrong but

preposterous.

Order XLI Rule 27 C.P.C.

25.The general principle is that the Appellate Court should not

travel outside the record of the lower court and cannot take any

evidence in appeal. However, as an exception, Order XLI Rule 27

CPC enables the Appellate Court to take additional evidence in

exceptional circumstances. The Appellate Court may permit

additional evidence only and only if the conditions laid down in this

rule are found to exist. The parties are not entitled, as of right, to the

admission of such evidence. Thus, provision does not apply, when

on the basis of evidence on record, the Appellate Court can

pronounce a satisfactory judgment. The matter is entirely within the

discretion of the court and is to be used sparingly. Such a discretion

19

Page 20 is only a judicial discretion circumscribed by the limitation specified

in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama

Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of

Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008;

Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC

479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979

SC 553).

26.The Appellate Court should not, ordinarily allow new

evidence to be adduced in order to enable a party to raise a new point

in appeal. Similarly, where a party on whom the onus of proving a

certain point lies fails to discharge the onus, he is not entitled to a

fresh opportunity to produce evidence, as the Court can, in such a

case, pronounce judgment against him and does not require any

additional evidence to enable it to pronounce judgment. (Vide: Haji

Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed

Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).

27.Under Order XLI , Rule 27 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

20

Page 21 where even without such evidence it can pronounce judgment in a

case. It does not entitle the appellate Court to let in fresh evidence

only for the purpose of pronouncing judgment in a particular way. In

other words, it is only for removing a lacuna in the evidence that the

appellate Court is empowered to admit additional evidence. [Vide:

Lala Pancham & Ors. (supra) ].

28. It is not the business of the Appellate Court to supplement

the evidence adduced by one party or the other in the lower Court.

Hence, in the absence of satisfactory reasons for the non-

production of the evidence in the trial court, additional evidence

should not be admitted in appeal as a party guilty of remissness in

the lower court is not entitled to the indulgence of being allowed to

give further evidence under this rule. So a party who had ample

opportunity to produce certain evidence in the lower court but failed

to do so or elected not to do so, cannot have it admitted in appeal.

(Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC

912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC

101).

29. 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"

21

Page 22 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.

30. The words "for any other substantial cause" must be read with

the word "requires" in the beginning of sentence, so that it is only

where, for any other substantial cause, the Appellate Court requires

additional evidence, that this rule will apply, e.g., when evidence has

been taken by the lower Court so imperfectly that the Appellate

Court cannot pass a satisfactory judgment.

31. Whenever the appellate Court admits additional evidence it

should record its reasons for doing so. (Sub-rule 2). It is a salutary

provision which operates as a check against a too easy reception of

evidence at a late stage of litigation and the statement of reasons may

inspire confidence and disarm objection. Another reason of this

requirement is that, where a further appeal lies from the decision, the

record of reasons will be useful and necessary for the Court of

further appeal to see, if the discretion under this rule has been

properly exercised by the Court below. The omission to record the

reasons must, therefore, be treated as a serious defect. But this

provision is only directory and not mandatory, if the reception of

such evidence can be justified under the rule.

22

Page 23 32. The reasons need not be recorded in a separate order provided

they are embodied in the judgment of the appellate Court. A mere

reference to the peculiar circumstances of the case, or mere

statement that the evidence is necessary to pronounce judgment, or

that the additional evidence is required to be admitted in the interests

of justice, or that there is no reason to reject the prayer for the

admission of the additional evidence, is not enough comp1iance with

the requirement as to recording of reasons.

33. It is a settled legal proposition that not only administrative

order, but also judicial order must be supported by reasons, recorded

in it. Thus, while deciding an issue, the Court is bound to give

reasons for its conclusion. It is the duty and obligation on the part of

the Court to record reasons while disposing of the case. The

hallmark of order and exercise of judicial power by a judicial forum

is for the forum to disclose its reasons by itself and giving of reasons

has always been insisted upon as one of the fundamentals of sound

administration of the justice – delivery system, to make it known that

there had been proper and due application of mind to the issue before

the Court and also as an essential requisite of the principles of

natural justice. The reason is the heartbeat of every conclusion. It

introduces clarity in an order and without the same, the order

becomes lifeless. Reasons substitute subjectivity with objectivity.

23

Page 24 The absence of reasons renders an order indefensible/unsustainable

particularly when the order is subject to further challenge before a

higher forum. Recording of reasons is principle of natural justice and

every judicial order must be supported by reasons recorded in

writing. It ensures transparency and fairness in decision making.

The person who is adversely affected must know why his application

has been rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR

2004 SC 1794; State of Uttaranchal & Anr. v. Sunil Kumar

Singh Negi, AIR 2008 SC 2026; The Secretary & Curator,

Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity

& Ors., AIR 2010 SC 1285; and Sant Lal Gupta & Ors. v.

Modern Cooperative Group Housing Society Limited & Ors.,

(2010) 13 SCC 336).

34.In The Land Acquisition Officer, City Improvement

Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 1976 SC

2403, while dealing with the issue, a three judge Bench of this Court

held as under:

“We are of the opinion that the High Court should

have recorded its reasons to show why it found the

admission of such evidence to be necessary for

some substantial reason. And if it found it

necessary to admit it an opportunity should have

been given to the appellant to rebut any inference

arising from its insistence by leading other

evidence.” (Emphasis added)

24

Page 25 A similar view has been reiterated by this Court in Basayya

I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108.

35.A Constitution Bench of this Court in K. Venkataramiah

(Supra), while dealing with the same issue held:

“It is very much to be desired that the courts

of appeal should not overlook the provisions of cl.

(2) of the Rule and should record their reasons

for admitting additional evidence….. The omission

to record reason must, therefore, be treated as a

serious defect. Even so, we are unable to

persuade ourselves that this provision is

mandatory.”

(Emphasis added)

In the said case, the court after examining the record of the

case came to the conclusion that the appeal was heard for a long time

and the application for taking additional evidence on record was

filed during the final hearing of the appeal. In such a fact-situation,

the order allowing such application did not vitiate for want of

reasons.

36.Where the additional evidence sought to be adduced

removes the cloud of doubt over the case and the evidence has a

direct and important bearing on the main issue in the suit and interest

of justice clearly renders it imperative that it may be allowed to be

permitted on record such application may be allowed.

25

Page 26

37.To sum up on the issue, it may be held that application for

taking additional evidence on record at a belated stage cannot be

filed as a matter of right. The court can consider such an application

with circumspection, provided it is covered under either of the

prerequisite condition incorporated in the statutory provisions itself.

The discretion is to be exercised by the court judicially taking into

consideration the relevance of the document in respect of the issues

involved in the case and the circumstances under which such an

evidence could not be led in the court below and as to whether the

applicant had prosecuted his case before the court below diligently

and as to whether such evidence is required to pronounce the

judgment by the appellate court. In case the court comes to the

conclusion that the application filed comes within the four corners of

the statutory provisions itself, the evidence may be taken on record,

however, the court must record reasons as on what basis such an

application has been allowed. However, the application should not

be moved at a belated stage.

Stage of Consideration :

38.An application under Order XLI Rule 27 CPC is to be

considered at the time of hearing of appeal on merits so as to find

whether the documents and/or the evidence sought to be adduced

26

Page 27 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 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 & Ors., AIR 1951

SC 193; and Natha Singh & Ors. v. The Financial Commissioner,

Taxation, Punjab & Ors., AIR 1976 SC 1053).

39.In Parsotim Thakur & Ors. v. Lal Mohar Thakur &

Ors., AIR 1931 PC 143, it was held:

“The provisions of S.107 as elucidated by O.41,

R.27 are clearly not intended to allow a litigant

who has been unsuccessful in the lower Court to

patch up the weak parts of his case and fill up

omissions in the Court of appeal. Under R.27, Cl.

(1) (b) it is only where the appellate Court

“requires” it (i.e. finds it needful). …… The

legitimate occasion for the exercise of this

27

Page 28 discretion is not whenever before the appeal is

heard a party applies to adduce fresh evidence,

but “when on examining the evidence as it

stands, some inherent lacuna or defect becomes

apparent”, it may well be that the defect may be

pointed out by a party, or that a party may move

the Court to apply the defect, but the requirement

must be the requirement of the court upon its

appreciation of evidence as it stands. Wherever

the Court adopts this procedure it is bound by R.

27(2) to record its reasons for so doing, and under

R.29 must specify the points to which the evidence

is to be confined and record on its proceedings the

points so specified. The power so conferred upon

the Court by the Code ought to be very sparingly

exercised and one requirement at least of any new

evidence to be adduced should be that it should

have a direct and important bearing on a main

issue in the case…” (Emphasis added)

(See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C.

128)

40.In Arjan Singh v. Kartar Singh & Ors. (supra), this Court

held:

“………If the additional evidence was allowed to

be adduced contrary to the principles governing

the reception of such evidence, it would be a case

of improper exercise of discretion, and the

additional evidence so brought on the record will

have to be ignored and the case decided as if it

was non-existent……. The order allowing the

appellant to call the additional evidence is dated

17.8.1942. The appeal was heard on 24.4.1942.

There was thus no examination of the evidence on

the record and a decision reached that the

evidence as it stood disclosed a lacuna which the

court required to be filled up for pronouncing the

judgment” (Emphasis added)

28

Page 29 41.Thus, from the above, it is crystal clear that application for

taking additional evidence on record at an appellate stage, even if

filed during the pendency of the appeal, is to be heard at the time of

final hearing of the appeal at a stage when after appreciating the

evidence on record, the court reaches the conclusion that additional

evidence was required to be taken on record in order to pronounce

the judgment or for any other substantial cause. In case, application

for taking additional evidence on record has been considered and

allowed prior to the hearing of the appeal, the order being a product

of total and complete non-application of mind, as to whether such

evidence is required to be taken on record to pronounce the

judgment or not, remains inconsequential/inexecutable and is liable

to be ignored.

In the instant case, the application under Order XLI Rule 27

CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though

the first appeal was heard and disposed of on 15.10.1999. In view

of law referred to hereinabove, the order dated 28.4.1999 is just to be

ignored.

42. The High Court while admitting the appeal had framed the

following substantial questions of law:

29

Page 30 1.Whether the judgment and decree passed by the

lower appellate court is vitiated in law

inasmuch as the land in dispute which was

recorded in Column B-4 under Rule 6 of the

Cantonment Land Administration Rule 1937

was wrongly and illegally discarded on the

ground of secondary evidence in the presence

of the original register maintained by the

Military Estate Officer.

2.Whether the certified copy of the relevant registers

maintained under the Cantonment Act are

admissible in evidence and appellate court erred

in law in discarding the same illegally against

the relevant provisions of the Evidence Act and

decreed the suit of the plaintiff on the false

pretext that there is no document was filed on

behalf of the defendant?

3.Whether the appellate court did not consider this

aspect at all that the suit for declaration without

possession is not maintainable is barred by the

provision of Specific Relief Act.

4.Whether the lower appellate court has committed

illegality while accepting the Will dated

1.3.1992 filed on 28.4.1999 without its proof by

plaintiff?

30

Page 31 The High Court admittedly did not answer any of them, though

had the question Nos. 2, 3 and 4 been decided, the result would have

been otherwise.

Section 34 of the Specific Relief Act, 1963 :

43.The Section provides that courts have discretion as to

declaration of status or right, however, it carves out an exception that

a court shall not make any such declaration of status or right where

the complainant, being able to seek further relief than a mere

declaration of title, omits to do so.

44.In Ram Saran & Anr. v. Smt. Ganga Devi, AIR 1972 SC

2685, this Court had categorically held that the suit seeking for

declaration of title of ownership but where possession is not sought,

is hit by the proviso of Section 34 of Specific Relief Act, 1963

(hereinafter called ‘Specific Relief Act’) and, thus, not maintainable.

45.In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993

SC 957, this Court dealt with a similar issue where the plaintiff was

not in exclusive possession of property and had filed a suit seeking

declaration of title of ownership. Similar view has been reiterated

observing that the suit was not maintainable, if barred by the proviso

31

Page 32 to Section 34 of the Specific Relief Act. (See also: Gian Kaur v.

Raghubir Singh, (2011) 4 SCC 567).

46.In view of above, the law becomes crystal clear that it is not

permissible to claim the relief of declaration without seeking

consequential relief. In the instant case, suit for declaration of title

of ownership had been filed though, the plaintiff/respondent no. 1

was admittedly not in possession of the suit property. Thus, the suit

was barred by the provision of Section 34 of the Specific Relief Act

and, therefore, ought to have been dismissed solely on this ground.

The High Court though framed a substantial question on this point

but for unknown reasons did not consider it proper to decide the

same.

Section 100 CPC :

47.Section 100 CPC provides for a second appeal only on the

substantial question of law. Generally, a Second Appeal does not lie

on question of facts or of law.

48. In State Bank of India & Ors. v. S.N. Goyal, AIR

2008 SC 2594, this Court explained the terms “substantial question of

law” and observed as under :

“The word ‘substantial’ prefixed to ‘question of

law’ does not refer to the stakes involved in the

32

Page 33 case, nor intended to refer only to questions of law

of general importance, but refers to impact or

effect of the question of law on the decision in the

lis between the parties. ‘Substantial questions of

law’ means not only substantial questions of law of

general importance, but also substantial question

of law arising in a case as between the parties.

……..... any question of law which affects the final

decision in a case is a substantial question of law

as between the parties. A question of law which

arises incidentally or collaterally, having no

bearing on the final outcome, will not be a

substantial question of law. There cannot,

therefore, be a straitjacket definition as to when a

substantial question of law arises in a case.”

(Emphasis added)

Similarly, in Sir Chunilal V. Mehta & Sons Ltd. v.

Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC

1314, this Court for the purpose of determining the issue held:-

“The proper test for determining whether a

question of law raises in the case is substantial,

would, in our opinion, be whether it is of general

public importance or whether it directly and

substantially affects the rights of the parties…..”

(Emphasis added)

49.In Vijay Kumar Talwar v. Commissioner of Income Tax,

New Delhi, (2011) 1 SCC 673, this Court held that, a point of law

which admits of no two opinions may be a proposition of law but

cannot be a substantial question of law. To be 'substantial' a question

of law must be debatable, not previously settled by law of the land or

a binding precedent, and must have a material on the decision of the

33

Page 34 case, if answered either way, insofar as the rights of the parties

before it are concerned. To be a question of law 'involving in the

case' there must be first a foundation for it laid in the pleadings and

the question should emerge from the sustainable findings of fact

arrived at by court of facts and it must be necessary to decide that

question of law for a just and proper decision of the case. It will,

therefore, depend on the facts and circumstance of each case,

whether a question of law is a substantial one or not; the paramount

overall consideration being the need for striking a judicious balance

between the indispensable obligation to do justice at all stages and

impelling necessity of avoiding prolongation in the life of any lis."

(See also: Rajeshwari v. Puran Indoria, (2005) 7 SCC 60).

50. The Court, for the reasons to be recorded, may also entertain

a second appeal even on any other substantial question of law, not

formulated by it, if the Court is satisfied that the case involves such a

question. Therefore, the existence of a substantial question of law is

a sine-qua-non for the exercise of jurisdiction under the provisions

of Section 100 CPC. The second appeal does not lie on the ground of

erroneous findings of facts based on appreciation of the relevant

evidence.

34

Page 35 There may be a question, which may be a “question of fact”,

“question of law”, “mixed question of fact and law” and “substantial

question of law.” Question means anything inquired; an issue to be

decided. The “question of fact” is whether a particular factual

situation exists or not. A question of fact, in the Realm of

Jurisprudence, has been explained as under:-

“A question of fact is one capable of being

answered by way of demonstration. A question of

opinion is one that cannot be so answered. An

answer to it is a matter of speculation which

cannot be proved by any available evidence to be

right or wrong.”

(Vide: Salmond, on Jurisprudence, 12th Edn. page 69, cited in

Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe

Patil & ors., AIR 1994 SC 678).

51.In Smt. Bibhabati Devi v. Ramendra Narayan Roy &

Ors., AIR 1947 PC 19, the Privy Council has provided the

guidelines as in what cases the second appeal can be entertained,

explaining the provisions existing prior to the amendment of 1976,

observing as under:-

“..... that miscarriage of justice means such a

departure from the rules which permeate all

judicial procedure as to make that which happen

not in the proper sense of the word ‘judicial

procedure’ at all. That the violation of some

principles of law or procedure must be such

35

Page 36 erroneous proposition of law that if that

proposition to be corrected, the finding cannot

stand, or it may be the neglect of some principle of

law or procedure, whose application will have the

same effect. The question whether there is

evidence on which the Courts could arrive at their

finding, is such a question of law.

‘That the question of admissibility of evidence

is a proposition of law but it must be such as to

affect materially the finding. The question of the

value of evidence is not sufficient reason for

departure from the practice......”

52.In Suwalal Chhogalal v. Commissioner of Income Tax,

(1949) 17 ITR 269, this Court held as under:-

“A fact is a fact irrespective of evidence, by which

it is proved. The only time a question of law can

arise in such a case is when it is alleged that there

is no material on which the conclusion can be

based or no sufficient evidence.”

53.In Oriental Investment Company Ltd. v. Commissioner

of Income Tax, Bombay, AIR 1957 SC 852, this Court considered a

large number of its earlier judgments, including Sree Meenakshi

Mills Ltd., Madurai v. Commissioner of Income Tax, Madras,

AIR 1957 SC 49, and held that where the question of decision is

whether certain profit is made and shown in the name of certain

intermediaries, were, in fact, profit actually earned by the assessee or

the intermediaries, is a mixed question of fact and law. The Court

further held that inference from facts would be a question of fact or

36

Page 37 of law according as the point for determination is one of pure fact or

a “mixed question of law and fact” and that a finding of fact without

evidence to support it or if based on relevant or irrelevant matters, is

not unassailable.

54.There is no prohibition to entertain a second appeal even on

question of fact provided the Court is satisfied that the findings of

the courts below were vitiated by non-consideration of relevant

evidence or by showing erroneous approach to the matter and

findings recorded in the court below are perverse. (Vide: Jagdish

Singh v. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi

(Smt.) v. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta (Smt.) @

Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Ragavendra

Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534;

Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd.,

AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya

Renganathan & Ors., AIR 2010 SC 2685; and Dinesh Kumar v.

Yusuf Ali, (2010) 12 SCC 740).

55.In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court

held that it is permissible to interfere even on question of fact but it

may be only in “very exceptional cases and on extreme perversity

37

Page 38 that the authority to examine the same in extenso stands permissible

it is a rarity rather than a regularity and thus in fine it can thus be

safely concluded that while there is no prohibition as such, but the

power to scrutiny can only be had in very exceptional circumstances

and upon proper circumspection.”

Similar view has been taken in the case of Kashmir Singh v.

Harnam Singh & Anr., AIR 2008 SC 1749.

56.Declaration of relief is always discretionary. If the

discretion is not exercised by the lower court “in the spirit of the

statute or fairly or honestly or according to the rules of reason and

justice”, the order passed by the lower court can be reversed by the

superior court. (See: Mysore State Road Transport Corporation

v. Mirja Khasim Ali Beg & Anr., AIR 1977 SC 747).

57.There may be exceptional circumstances where the High

Court is compelled to interfere, notwithstanding the limitation

imposed by the wording of Section 100 CPC. It may be necessary to

do so for the reason that after all the purpose of the establishment of

courts of justice is to render justice between the parties, though the

High Court is bound to act with circumspection while exercising

such jurisdiction. In second appeal the court frames the substantial

38

Page 39 question of law at the time of admission of the appeal and the Court

is required to answer all the said questions unless the appeal is

finally decided on one or two of those questions or the court comes

to the conclusion that the question(s) framed could not be the

substantial question(s) of law. There is no prohibition in law to

frame the additional substantial question of law if the need so arises

at the time of the final hearing of the appeal.

58.In the instant case, none of the substantial questions framed

by the Court had been answered. Much reliance has been placed on

the Will which was liable just to be ignored. Even otherwise, the

Will in the instant case cannot be relied upon for want of pleadings.

59.The pleading taken in the plaint dated 25.7.1995 clearly

revealed that the land in dispute belonged to Hafiz Ahmad Bux and

Hafiz Kareem Bux who were the ancestors of the plaintiff and they

were the owners of the same in the year 1800. The property was

partitioned between ancestors of the plaintiff in the year 1819. There

had been succession of the property by various documents of Hafiz

Kareem Bux and Hafiz Ahmad Bux. The plaintiff claims to be heir

and successor of one Smt. Hasin Begum wife of Zafaruddin and

daughter of Sri Hazim Ali. He had inherited the suit property being

39

Page 40 a lone heir of Shri Hafiz Ahmed Bux after the death of his mother

Smt. Hasin Begum.

In case, the plaint does not make any reference that the

property had been given to the plaintiff/respondent no.1 by way of

Will, and pleadings had not been amended at the stage of first

appeal, the question does arise as to whether, the Will could be taken

into consideration, while deciding the case.

The trial court had considered as many as seven issues and

does not make any reference that the property had been gifted to the

ancestors of the plaintiff by the Maratha rulers. Further finding has

been recorded that in respect of documents, the plaintiff/respondent

no. 1 had given paper to defendant no. 1 for inspection of the record

but he did not make any inspection. However, a passing reference

had been made by the trial court that no record had been produced

by the plaintiff to show that the Maratha Government had given the

land to the forefathers of the plaintiff.

So far as the First Appellate Court is concerned, it placed a

very heavy reliance on the Will and further recorded a finding that in

spite of the fact that the plaintiff filed an application for inspection

before the appellant/defendant no.1, he was not permitted to have the

inspection. Nor the said revenue record was presented by the present

40

Page 41 appellant and, therefore, an adverse inference was drawn against it.

So far as the Will is concerned, it is evident that it was taken on the

record as an additional evidence without any pleading anywhere.

There is nothing on record that the plaintiff/defendant no. 1 made

any attempt to make an amendment in the plaint even at the appellate

stage by moving an application under Order VI Rule 17 CPC.

60.Relevant part of the application under Order XLI Rule 27

CPC, reads as under:

“2.That the property in suit belongs to the

ancestors of the plaintiff. The grand father of the

plaintiff/appellant had made the Will in favour of

the plaintiff regarding the property in suit inter

alia other properties in year 1929.

3. That at the time of trial of the suit the said will

was not in possession of the plaintiff and the same

was misplaced in the other lot of old papers of the

plaintiff kept in store.

4. That even after best effort, and due diligence the

aforesaid Will could not be available at the time of

trial of the suit and now after due diligence and

best effort it has been available and traced our.

5. That the papers were not available earlier so it

could not be filed in the lower court.

6. That the said paper is very much relevant to

establish the right, title or interest in the disputed

property of the plaintiff so the same is very

necessary to be taken on record.

7. That if the said paper is not taken on record the

plaintiff will be deprived from getting justice.”

41

Page 42 61.The first Appellate Court allowed the application filed by the

plaintiff under Order XLI Rule 27 CPC vide order dated 28.4.1999

which reads as under:

“The Will in question is necessary for the

disposal of the appeal because the

applicant/appellant obtains right in the disputed

property from this Will. The

respondent/defendants have neither opposed it that

as to why it was not produced in the subordinate

court, there is no any relevancy of it. The

applicant has given reason of not producing the

Will in the subordinate court that this will was

lost. In my opinion, the will appears to be

necessary for the disposal of the appeal for the

property which was obtained to the appellant

earlier by this Will. Proper reason has been given

for not producing this Will in the subordinate

court.”

62.This Court while dealing with an issue in Kalyan Singh

Chouhan v. C.P. Joshi, AIR 2011 SC 1127, after placing reliance

on a very large number of its earlier judgments including Messrs.

Trojan & Co. v. RM.N.N. Nagappa Chettiar, AIR 1953 SC 235;

Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665;

Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC

3165; and State of Maharashtra v. M/s. Hindustan Construction

Company Ltd., AIR 2010 SC 1299, held that relief not founded

on the pleadings cannot be granted. A decision of a case cannot be

based on grounds outside the pleadings of the parties. No evidence

42

Page 43 is permissible to be taken on record in absence of the pleadings in

that respect. No party can he permitted to travel beyond its pleading

and that all necessary and material facts should be pleaded by the

party in support of the case set up by it. It was further held that

where the evidence was not in the line of the pleadings, the said

evidence cannot be looked into or relied upon.

63.In Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 SC

1103, this court held that a case not specifically pleaded can be

considered by the court unless the pleadings in substance contain the

necessary averments to make out a particular case and issue has been

framed on the point. In absence of pleadings, the court cannot make

out a case not pleaded, suo motu.

Therefore, in view of the above, there is nothing on record to

show that Maratha Government had made a gift to the ancestors of

the plaintiff. The claim of the plaintiff to get a title by virtue of the

Will cannot be taken note of being not based on pleadings. Even this

Will is dated 1.3.1929, affidavits filed by the plaintiff/respondent

no.1 before this Court reveal that on 26.3.2012 he was 80 years of

age. The date of Will is 1.3.1929. So, it appears that the Will had

been executed prior to the birth of the plaintiff/respondent no.1. In

such a fact-situation, it could not have been taken into consideration

43

Page 44 without proper scrutiny of facts and, that too, without any pleading.

In the plaint, the plaintiff for the reasons, best known to him, did not

even make reference to the Will. In absence of any factual

foundation of the case, based on Will, the first appellate Court

committed a grave error taking into consideration the said Will.

More so, the Will had not been proved as required under Section 68

of the Evidence Act.

64.The High Court had placed a very heavy reliance on the rent

note allegedly executed by the fore-fathers of the plaintiff/

respondent no.1. The same reads as under:

“Applicant caretaker masque noori darwaza

which was constructed by Hafiz Ahmed is of our

ancestor and who received cash payment which

has been deposited register board no.38 treasury

collectorate agra situated namner cantt., Agra,

questioner is entitled to which is following

mentioned money which has been stated after

enquiry it be given to me, and if govt. has any

objection to pay to me the information about the

same given to us that condition govt. will be liable

for the expenses of court I hafiz ahmed is receiver

of rent of this land which has been situated at

namner the rent which is rupees 22.”

The said rent note does not provide any description of the

property nor does it bear any date, so it cannot be determined as on

what date it was executed; what was the duration of the lease; in

whose favour the lease had been executed; and what was the lease

44

Page 45 rent because it simply mentions that the rent to be Rs.22/-. It is not

evident whether it was a rent for a month, or a year or for a total

indefinite period. The rent note does not provide any period at all. In

fact, such a vague document could not be linked in the circumstances

proving the title.

65.Appellant/defendant No.1 produced the certified copies of

the Extract from General Land Register prepared on 15.3.1948 in

support of its case and denying title of the plaintiff/respondent No.1.

The relevant part thereof reads as under:

Sl.No.Survey No.5 Existing Entry

1. ------ ------

2. ------ ------

3. ------ ------

4.Area in acres 9.447 acres

5.Description Agricultural land

6.Class B-4

7.By whom managed Military Estate Officer

8.Landlord Govt. of India

9. ------ -------

10. ------ -------

Similarly, another land had also been shown in Survey No.6

in the same manner and showing the similar entries.

The High Court has considered the said entries and rejected

the same on the ground that the partition among the ancestors of the

plaintiff/respondent No.1 had taken place prior to enactment of the

Cantonment Land Administration Rules, 1925, though there is

nothing on record to prove the said partition. More so, the partition

45

Page 46 made among the ancestors of plaintiff/respondent No.1 in 1819

would not be a conclusive factor to determine the title of ownership

in favour of the plaintiff/respondent No.1. The High Court dealt

with the issue in an unwarranted manner as it observed as under:

“Clause B-1, B-2, B-3, B-4 and B-5 Classification of

land was first time introduced by enactment of

Cantonment Land Administration Rule 1925. The

General Land Register was prepared near about in the

year 1928, whereas the partition is in the year 1819.

The appellant also failed to file the notification in the

official gazette regarding survey Nos. 5 and 6 which are

situated outside the notified area and to establish that

such area was declared under Section 43A of the

Cantonment Act, 1924. In the circumstances, I do not

find that it is a case where this court in exercise of

jurisdiction under Section 100 CPC can set aside the

findings of fact arrived at by the court below.”

66.The General Land Register and other documents maintained

by the Cantonment Board under the Cantonment Act, 1924 and the

Rules made thereunder are public documents and the certified copies

of the same are admissible in evidence in view of the provisions of

Section 65 read with Section 74 of the Evidence Act. It is settled

legal position that the entries made in General Land Register

maintained under Cantonment Land Administration Rules is

conclusive evidence of title. (Vide: Chief Executive Officer v.

Surendra Kumar Vakil, AIR 1999 SC 2294; and Union of India

& Ors. v. Kamla Verma, (2010) 13 SCC 511).

46

Page 47 67.In view of the above, we are of the considered opinion that

the appellate courts dealt with the case in an unwarranted manner

giving a complete go-by to the procedure prescribed by law.

68.The appellate courts examined the title of government

instead of the plaintiff/respondent no.1. Such a course was not

warranted. The title of government cannot be disputed. In any

event possession of government for decades is not disputed. The

plaintiff shifted the case from time to time but failed to prove his

title.

69.To sum up: In view of the above discussion, we reach the

following conclusion:

(i)The first appellate court as well as the High Court

committed grave error in shifting the burden of proof on the Union

of India, appellant/defendant No.1, though it could have been

exclusively on the plaintiff/respondent No.1 to prove his case.

(ii)There is nothing on record to prove the grant/gift by the

Maratha Government in favour of ancestors of plaintiff/respondent

No.1 in the year 1800.

(iii)Plaintiff/Respondent No. 1 miserably failed to prove the

pedigree produced by him.

47

Page 48 (iv) The alleged partition in the year 1819 among the ancestors of

plaintiff/respondent No.1 even if had taken place, cannot be a proof

of title of the plaintiff/respondent No.1 over the suit property as the

pedigree has not been proved. Presumption under Section 90 of the

Evidence Act in respect of 30 years’ old document coming from

proper custody relates to the signature, execution and attestation of a

document i.e. to its genuineness but it does not give rise to

presumption of correctness of every statement contained in it. The

contents of the document are true or it had been acted upon have to

be proved like any other fact. More so, in case the Will is ignored,

there is nothing on record to show as how the plaintiff/respondent

no. 1 could claim the title.

(v)The rent note produced by the appellant/defendant No.1

before the court below does not prove anything in favour of the

plaintiff/respondent. The same being a vague document is incapable

of furnishing any information and, thus, is liable to be rejected. The

said document does not make it clear as who has executed it and in

whose favour the same stood executed. It does not bear any date as it

cannot be ascertained when it was executed. The lease deed cannot

be executed without the signature/thumb impression of the lessee.

The said lease does not contain any signature/thumb impression of

any lessee and also the tenure of the lease has not been mentioned

48

Page 49 therein. The rent has been mentioned as Rs.22/- without giving any

detail as to whether it was per day, fortnightly, monthly, quarterly or

yearly or for ever. More so, there is no reference to the said rent

note in the pleadings contained in the plaint, therefore, it is just to be

ignored.

(vi)Had there been any Will in existence and not available with

the plaintiff/respondent No.1 for any reason whatsoever at the time

of institution of the suit, the plaintiff/respondent No.1 could have

definitely mentioned that Will had been executed in his favour by

his maternal grand-father which could not be traced. Therefore, the

application under Order XLI Rule 27 CPC was liable to be rejected.

Even otherwise, the Will in absence of any pleading either in the

plaint or first appeal could not be taken on record. More so, the Will

was not proved in accordance with law i.e. Section 68 of the

Evidence Act.

(vii)The court cannot travel beyond the pleadings as no party can

lead the evidence on an issue/point not raised in the pleadings and in

case, such evidence has been adduced or a finding of fact has been

recorded by the Court, it is just to be ignored. Though it may be a

different case where in spite of specific pleadings, a particular issue

is not framed and parties having full knowledge of the issue in

controversy lead the evidence and the court records a finding on it.

49

Page 50 (viii)The first appellate court committed a grave error in deciding

the application under Order XLI Rule 27 CPC much prior to the

hearing of the appeal. Thus, the order allowing the said application

is liable to be ignored as the same had been passed in gross violation

of the statutory requirement.

(ix)The documents produced by the Union of India have not

been properly appreciated by the first appellate court and the High

Court.

(x)The courts below further committed an error holding that in

case the document is taken on record, the document as well as the

content thereof would be deemed to have been proved.

(xi)The appellate courts have also wrongly rejected the certified

copies of the documents prepared by the Cantonment Board which

were admissible in evidence.

(xii)The High Court committed a grave error in not addressing

itself to the substantial questions of law framed at the time of

admission of the appeal and it ought to have decided the same or

after discussing the same a finding could have been recorded that

none of them was substantial question of law.

(xiii) The suit was barred by the proviso to Section 34 of the

Specific Relief Act, for the reason that plaintiff/respondent No.1,

50

Page 51 admittedly, had not been in possession and he did not ask for

restoration of possession or any other consequential relief.

(xiv)The first appellate court as well as the High Court recorded a

finding that the Union of India failed to prove its title over the suit

land. The said courts did not realise that this was not the issue to be

determined, rather the issue had been as to whether the

plaintiff/respondent No.1 was the owner of the suit land.

(xv)The first appellate court has not decided the issue of

admission of documents in correct perspective and recorded a

perverse finding.

(xvi)Question of filing a document in rebuttal of a Will could not

arise. The other party has to admit or deny the document as required

under Order XII CPC. There could be no Will in favour of the Union

of India by the predecessors of the plaintiff, on the basis of which it

could also claim title.

(xvii)The courts below had wrongly drawn adverse inference

against the appellant/defendant No.1 for not producing the

documents as there was no direction of the court to produce the

same. Neither the plaintiff/respondent No.1 had ever made any

application in this respect nor he filed any application under Order

XI CPC submitting any interrogation or for inspection or production

of document.

51

Page 52 (xviii)The appellate courts have decided the appeals in

unwarranted manner in complete derogation of the statutory

requirements. Provisions of CPC and Evidence Act have been

flagrantly violated.

70. In view of above, appeal succeeds and is allowed, judgments

and decrees of the first and second appellate courts are set aside and

the judgment and decree dated 20.1.1998 passed by Civil Court in

Original Suit No.442 of 1995 is restored. No costs.

....…………… .....................J.

( Dr. B.S. CHAUHAN )

.………… ............................J.

( DIPAK MISRA )

New Delhi,

July 17, 2012

52

Page 53 53