TMI Blog2012 (7) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? Whether 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? Whether the documents produced by the Union of India have not been properly appreciated by the first appellate court and the High Court? Whether 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? Whether the appellate courts have also wrongly rejected the certified copies of the documents prepared by the Cantonment Board which were admissible in evidence? Whether 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? Whether the suit was barred by the proviso to Section 34 of the Specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments. 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. 10. In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das Anr., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff 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 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 reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2A provides that a document could 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural 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) A similar view has been reiterated by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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: 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. No evidence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... | ------ | |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 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 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 miserably failed to prove the pedigree produced by him. (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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