Joseph v. Dalbin Dikunja

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 SA NO. 872 OF 2001 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 13.7.1995 IN ``` ``` O.S.NO.186/1992 OF MUNSIFF’S COURT, NORTH PARAVUR AGAINST THE JUDGMENT AND DECREE DATED 12.6.2001 IN AS 131/1995 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR ``` ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` JOSEPH, PADAMATTUMMEL, PALLIPPURAM VILLAGE, PALLIPPURAM MURI,NOW RESIDING AT 15/1, RATHAN BABU ROAD, CALCUTTA-2, REP.BY MUKTHYAR HOLDER- HALARISON, PADAMATTUMMEL, .DO. .DO. ``` ``` BY ADV SRI.ROY CHACKO ``` ## **`RESPONDENT/RESPONDENT/DEFENDANT:`** ``` DALBIN DIKUNJA, PANDARAPARAMBIL, KOCHI TALUK, ELAMKUNNAPUZHA VILLAGE, ELAMKUNNAPUZHA MURI. ``` ``` SRI.S.SHYAM SRI.N.SUKUMARAN (SR) ``` ``` THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1.12.2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING: ``` S.A.No.872 of 2001 2 ## **JUDGMENT** Challenge in this appeal is to the judgment and decree dated 12.6.2001 in A.S.No.131 of 1995 passed by the Additional District Court, North Paravur, which emanated from O.S.No.186 of 1992 on the file of the Munsiff’s Court, North Paravur. The plaintiff who lost the case in the Courts below is the appellant. 2. The appellant/plaintiff instituted the original suit through his power of attorney holder for a permanent prohibitory injunction in respect of the plaint schedule bridge. The plaintiff has a brother by name Arch. The mother of the plaintiff died on 30.7.1983. She had 23 cents of property in Sy.No.40/29 of Pallippuram village. A pathway runs in the north-south direction on the east of the property. On the further east of the property, a puramboke land is situated. A river flows in the north-south direction on the further east of the puramboke land. The mother of the plaintiff was in possession of this 23 cents of property and the puramboke land till her death. The mother of the plaintiff was running a peeling shed in the property. For the purpose of using the peeling shed, she had put up a bridge in the river to moor boats. She planted coconut trees in the puramboke land and had been enjoying the same. While so, at the request of Sri.Arch plaintiff’s mother permitted him to take yield from the coconut trees on the puramboke land. She S.A.No.872 of 2001 3 also executed an agreement in favour of Sri.Arch on 1.6.1978, permitting him to take yield. According to the plaintiff, though Sri.Arch was permitted to take yield from the puramboke land, his mother retained the possession of the property. On 5.6.1980, she assigned 8 cents of property in Sy.No.40/29 to the plaintiff. Thereafter, Sri.Arch surrendered his possessory right over the property on 4.12.1980. The agreement dated 1.6.1978 executed by the mother of the parties in favour of Sri.Arch remained with him. Taking advantage of the fact that Sri.Arch was in possession of the agreement dated 1.6.1978, he permitted the respondent/defendant to construct a bridge in the property in possession of the plaintiff. There was already a bridge constructed by the mother of the parties near the bridge constructed by the defendant. The distance between the two bridges is less than 10 ft. Construction of the bridge by the defendant has caused difficulty in mooring boats on the bridge in possession of the plaintiff. The defendant has no right to construct the bridge and use the same. He is to be restrained by a decree of permanent prohibitory injunction from mooring boats on the plaint schedule bridge. The plaintiff also prayed for a mandatory injunction directing the defendant to demolish the bridge. 3. The defendant resisted the claim of the plaintiff, contending that the mother of the plaintiff never had possession of the S.A.No.872 of 2001 4 puramboke land as pleaded by the plaintiff. The puramboke land was in possession of Sri.Arch ever since 1976. The plaint schedule bridge is situated not in the property in possession of the plaintiff. The bridge does not cause any obstruction to the plaintiff in the user of the bridge constructed by him. The property obtained by way of kudikidappu by the mother of the plaintiff was purchased by the defendant. Plaint schedule bridge is situated on the eastern side of the property in puramboke land. The plaintiff has no manner of right over it. 4. During the trial, PW1 was examined and Ext.A1 was marked on the side of the plaintiff. Ext.B1 was marked on the side of the defendant. 5. The trial Court dismissed the suit holding that the plaintiff failed to establish that the plaint schedule bridge is causing obstruction to the bridge in possession of the plaintiff. The trial Court also held that the plaintiff failed to establish his possession over the property in which the plaint schedule bridge is situated. It was also held that the plaintiff has not cared to take out a commission to establish his case that the plaint schedule bridge constructed by the defendant is causing obstruction to the bridge in possession of the plaintiff. Based on these findings the trial Court dismissed the suit. 6. The plaintiff challenged the decree and judgment passed by the trial Court in A.S.No.131 of 1995 before the Additional District S.A.No.872 of 2001 5 Court, North Paravur. The First Appellate Court confirmed the findings of the trial Court. In the First Appellate Court, the plaintiff had filed a memo seeking admission of additional evidence. The First Appellate Court refused to receive additional evidence. 7. The plaintiff is now before this Court in Second Appeal under Section 100 of the Code of Civil Procedure. On 7.2.2003 this Court admitted the second appeal and issued notice to the respondent/defendant on the following substantial questions of law:- - “i) Whether the courts below were correct in construing Ext.A1 document executed by mother in favour of the plaintiff as one not creating any title over the puramboke and refusing relief of injunction on that score. - ii) Whether the trial court was legally justified in dismissing the suit following the averments in OS.714/92 (Ext.B1) which does not relate to plaint schedule property. - iii) Whether the lower appellate court was justified in rejecting additional documents produced on behalf of the appellant under the provisions of Order 41 Rule 27 CPC on the ground that no separate petition supported by an affidavit was filed when the provisions do not envisage filing of an affidavit and petition.” 8. Heard Sri.Roy Chacko, the learned counsel for the appellant and Sri.N.Sukumaran, the learned Senior Counsel appearing for the respondent. S.A.No.872 of 2001 6 9. The case of the plaintiff is that his mother, who had 23 cents of property in Sy.No.40/29 along with puramboke land on the east of it, assigned the properties in favour of him by way of Ext.A1. The further case of the plaintiff is that he is in possession of a bridge crossing the river constructed by his mother on the eastern side for mooring boats. According to the appellant/plaintiff, the respondent/defendant illegally constructed a bridge, on the southern side, close to the bridge already in existence causing inconvenience to the user of the bridge in possession of the plaintiff. 10. The challenge of the respondent/defendant is that the plaintiff has no possession over the puramboke land. His mother had assigned only 8 cents of land as per Ext.A1 assignment deed and she had no right to assign the puramboke land in favour of the plaintiff. 11. Ext.A1 makes it evident that 8 cents of property in Sy.No.40/29 of Kuzhuppilly village with a peeling shed was assigned in favour of the plaintiff. There is no mention regarding the puramboke land on the eastern side. The irresistible conclusion is that the mother of the plaintiff had not assigned any puramboke land as pleaded by the plaintiff. Therefore, the plaintiff has no title over the puramboke land. The trial Court as well as the First Appellate Court concluded that the plaintiff failed to establish that the bridge constructed on the puramboke land by the defendant has caused any inconvenience to the S.A.No.872 of 2001 7 plaintiff. The trial Court relying on the oral evidence of PW1 held that the plaintiff failed to establish any inconvenience due to the existence of the plaint schedule bridge to the user of the bridge in his possession. The trial Court noted that the plaintiff failed to take out a commission to establish his case that the plaint schedule bridge is causing obstruction to the use of his bridge. The Court also held that the plaintiff miserably failed to establish his possession over the property in which the plaint schedule bridge is situated. The First Appellate Court confirmed those findings. The learned counsel for the appellant contended that the trial Court refused to grant injunction solely relying on the averments contained in Ext.B1, plaint in O.S.No.714 of 1992, a suit instituted by the plaintiff against the defendant on the same cause of action. Relying on Ext.B1 the trial Court held that the plaintiff had pleaded an entirely different version regarding the manner in which he obtained possession of the property on which the plaint schedule bridge was constructed. The trial Court consequently held that the plaintiff had no consistent case regarding the alleged possession of the area. The trial Court, based on the pleadings, the oral evidence of PW1 and Ext.A1 recorded a finding that the plaintiff was not in possession of the property where the plaint schedule bridge was constructed and that the plaintiff failed to establish that the plaint schedule bridge is causing any hindrance to the user of the bridge in possession of the plaintiff. S.A.No.872 of 2001 8 12. The learned counsel for the appellant/plaintiff further contended that the First Appellate Court ought to have accepted additional evidence tendered from his part. The learned counsel contended that refusal of additional evidence on the ground that no application was filed to receive additional evidence is not sustainable. 13. The First Appellate Court on the reception of additional evidence in paragraph 13 observed thus:- “Any reference to the documents produced in appeal is not possible or warranted. The documents are produced merely as per a memo. Reception of additional evidence in the appeal is governed by Order 41 Rule 27 of the Code. No application is filed to receive addl. evidence. Nor has the appellant made out any of the grounds mentioned in that provisions justifying the admission of addl. evidence in the appeal.” 14. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in addition. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. Order 41 Rule 27 reads thus:- “ **27. Production of additional evidence in Appellate Court.-** (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the S.A.No.872 of 2001 9 exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” An appellate court may permit additional evidence only if the conditions laid down in the above extracted rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. The matter is entirely within the discretion of the Court and it is used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitations prescribed by the rule itself. ## 15. In **Haji Mohammed Ishaq** v. **Mohd. Iqbal and Mohd.** **Ali and Co. ((1978) 2 SCC 493)** the Apex Court held that 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. The Apex Court further held that 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, S.A.No.872 of 2001 10 pronounce judgment against him and does not require any additional evidence to enable it to pronounce the judgment. ## 16. In **Union of India** v. **Ibrahim Uddin [(2012) 8 SCC** **148]** considering the provisions of Order 41 Rule 27 CPC, the Apex Court in paragraph 48 held thus:- **“48.** To sum up on the issue, it may be held that an 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 conditions 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.” 17. So, it is trite that mere production of additional evidence along with the appeal memorandum would not be sufficient to meet the requirements under Order 41 Rule 27 CPC. The requirement of a separate petition with notice to the opposite party is indispensable. The party who tenders additional evidence only then would be in a position S.A.No.872 of 2001 11 to ventilate his defence with regard to it. In **New India Assurance Co. Ltd.** v. **Rajan [1995 (1) KLT S.N.3 (Case No.4)]** a Division Bench of this Court held that a separate petition with notice to the opposite side is indispensable in a case where the party wants to file additional evidence before the appellate court. The Division Bench held that mere production of additional evidence along with the appeal memorandum would not be sufficient to meet the requirements under Order 41 Rule 27 CPC. 18. In the present case, the First Appellate Court held that the appellant has failed to make out any of the grounds mentioned in Order 41 Rule 27 CPC justifying the admission of additional evidence. Therefore, the First Appellate Court was justified in rejecting the additional documents produced on behalf of the appellant/plaintiff. The appellant failed to canvass any ground to interfere with the concurrent findings rendered by the Courts below. The Second Appeal fails and accordingly, it is dismissed. Sd/- **K.BABU Judge** TKS