Muhammed Shereef v. Kalyani and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 ``` ## **`RSA NO. 139 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN OS 44/2007 OF MUNSIFF COURT, MANJERI AS 31/2017 OF SUB COURT, MANJERI ``` ## **`APPELLANT/APPELLANT IN A.S.NO.31/2017/6TH DEFENDANT IN O.S.NO.44/2007:`** ``` MUHAMMED SHEREEF AGED 45 YEARS S/O. PARAMBADAN MUHAMMED, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, KOULATH, 44 YEARS, W/O. MUHAMMED SHEREEF, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. ``` ``` BY ADVS. SRI.LAL K.JOSEPH SRI.SURESH SUKUMAR SRI.ANZIL SALIM SHRI.CHACKO MATHEWS K. ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 6 IN A.S.NO.31/2017/PLAINTIFF AND DEFENDANTS NOS.1 TO 5 IN O.S.NO.44/2007:`** ``` 1KALYANI AGED 56 YEARS D/O.PERUMUNDA AYYAPPAN, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. 2VELAYUDHAN, AGED 68 YEARS S/O.PERUMUNDA AYYAPPAN, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. 3JANAKI, AGED 65 YEARS D/O.PERUMUNDA AYYAPPAN, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. 4NARAYANI, AGED 61 YEARS ``` ``` RSA NO. 139 OF 2021 2 ``` ``` D/O.PERUMUNDA AYYAPPAN, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. 5MEENAKSHI, AGED 49 YEARS D/O.PERUMUNDA AYYAPPAN, AKAMPADAM AMSOM, ERANHIMANGADU DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. 6VENUGOPALAN, AGED 51 YEARS S/O. SAROJINI (LATE), MAMPAD AMSOM, PULOKKALADI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN- 676542. R1 BY ADVS. SMT.MEENA.A. SMT.MINI M.R. SRI.VINOD RAVINDRANATH SRI.K.C.KIRAN SRI.M.DEVESH SRI.ASHWIN SATHYANATH SHRI.THAREEQ ANVER SHRI.ANISH ANTONY ANATHAZHATH R2 TO R6 BY ADV.SRI.K.RAKESH ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 139 OF 2021 3 ``` ## **JUDGMENT** Dated this the 21[st] day of September, 2023 This appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment in A.S.No.31/2017, dated 18.12.2019 on the files of the Sub Court, Manjeri and also against the judgment and decree, dated 8.1.2010 in O.S.No.44/2007 on the files of the Munsiff Court, Manjeri. 2. Heard the learned counsel for the appellant as well as the learned counsel for the 1[st] respondent. 3. As per order dated 2.3.2021, my learned predecessor raised the following, as questions of law: (1) Whether the first appellate court is justified in not invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure to accept the Release Deed No.3251/87 of SRO, Nilambur, being a substantial cause to determine the issue No.(4) as to whether the plaintiff ``` RSA NO. 139 OF 2021 4 ``` assigned her right over the plaint B schedule item No.1 property? (2) Whether the first appellate court erred in not accepting the Release Deed No.3251/1987 of the SRO, Nilambur, particularly when the plaintiff had filed I.A.No.890/2010 against the 6[th] defendant for causing production of Release Deed No.3251/1987 of SRO, Nilambur before the trial court? 4. Originally, the suit was one filed for partition of the B schedule item Nos.1 and 2 properties in the plaint. Item No.1 is property, having an extent of 1 Acre in Re.Sy.No.52/1. Item No.2 is 90 cents of property in Re.Sy.No.64/1. 5. According to the plaintiff, the entire properties are liable to be partitioned. In this case, the 6[th] defendant, who is the appellant herein, filed written statement raising specific contention to the effect that, B schedule Item No.1 property originally belonged to Manjeri Kovilakam and the same was obtained by one Pukkodan Khalid. Thereafter, Pukkodan Khalid obtained patta in respect of the said ## **`RSA NO. 139 OF 2021 5`** property from Land Tribunal. Thereafter, the plaintiff along with defendants 2 and 3, purchased the same, as per sale deed No.76/1983. Later, as per release deed No.3251/1987, plaintiff released her right in Item No.1 in B schedule, in favour of defendant Nos.2 and 3. Later, defendant Nos.2 and 3 sold the same in favour of the 6[th] defendant, as per sale deed No.2753/2001. Therefore, it was contended that plaint B Item No.1 is the absolute property of the 6[th] defendant and the same is not partible. 6. Though such a contention was raised before the trial court, the 6[th] defendant failed to produce the title documents to prove the title in respect of plaint B Item No.1 property and thereby, the trial court passed preliminary decree, dated 8.1.2010 including plaint B Item No.1 property also, holding that the said item also is partible. 7. The 6[th] defendant/appellant herein filed appeal as A.S.No.31/2017 before the Sub Court, Manjeri and at the appellate stage, the appellant filed I.A.No.1211/2018 under Section 107 of the C.P.C. (deemed to be a petition ## **`RSA NO. 139 OF 2021 6`** filed under Section 100 r/w Order XLI Rule 27 of the C.P.C.) along with certified copies of documents viz., 3251/1987 and 2753/2001, with prayer to accept the same. But, the appellate court dismissed the said petition and concurred the finding of the trial court, whereby, plaint B Item No.1 property, where the appellant asserted title as above also was allowed to be partitioned. 8. At the outset, it has to be observed that, on perusal of the documents placed along with I.A.No.1211/2018, the title claimed by the 6[th] defendant, could be gathered, prima facie. No doubt, the title is one to be proved by the appellant herein by adducing evidence, since by way of amendment carried out in the plaint, the plaintiff specifically denied execution of the above documents. 9. Coming to the question as to what are the parameters to be considered, while producing additional evidence before the appellate court, it is necessary to extract Order XLI Rule 27 of the C.P.C. The same is extracted hereunder: ``` RSA NO. 139 OF 2021 7 ``` _**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 exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or._ - _(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,_ _the Appellate Court may allow such evidence or document to be produced or witness to be examined._ _(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission._ 10. It is zealously argued by the learned counsel for the 1[st] respondent that the appellate court rightly dismissed the petition filed by the appellant herein on the ## **`RSA NO. 139 OF 2021 8`** finding that the essentials provided under Order XLI Rule 27 (aa) was not complied with. According to the learned counsel for the 1[st] respondent, it is mandatory for the appellate court to ensure compliance of Order XLI Rule 27 (aa) of the C.P.C., before accepting additional evidence. In this connection, the learned counsel placed decision of this Court in **Chirag Enterprises, Merchant and Commission Agents** v. **Star Traders, Merchants and Another,** reported in **[2012 (4) KHC 271],** after referring paragraph Nos.28 and 29, wherein, the Division Bench of this Court held as under: _“28. The learned counsel for the plaintiff submitted that the plaintiff has filed CMP No. 1475/2001 under Order XLI R.27 of the CPC to receive the cheque dated 20/11/1996 as evidenced on the side of the plaintiff. Subsequently the plaintiff has filed IA No. 800/2010 under the very same provision to receive four documents. The plaintiff has also filed another application (IA No.) 1176/2012) to amend the plaint under Order VI R.17 as to incorporate a fresh cause of action against the defendant. The learned counsel for the plaintiff further urged for_ ``` RSA NO. 139 OF 2021 9 ``` _a remand of the case back to Trial Court, so as to get an opportunity to adduce further evidence on these documents. Per contra, the learned counsel for the defendants opposed the above submission and submitted that documents sought to be brought up in evidence are irrelevant and will not cure the inherent defects in evidence noticed under S.34 of the Indian Evidence Act, the decision laid down by this Court in Govindan v. Raman, 1993 (1) KLT SN 16._ _29. Normal course of procedure of the Appellate Court is to decide the appeal on the basis of the evidence available on record. Certainly the Appellate Court has the power to remand the case under S.107 and 0.41 R.23 & R.23(A) of the CPC. But merely on the reason that the party wants to produce additional evidence or produced evidence under 0.41 R.27 of the CPC, the Appellate Court is not bound to remand the case as a matter of course. Firstly it is the incumbent upon the Appellate Court to decide question whether the application seeking production of additional evidence fulfils the requirements under 0.41 R.27(a) (aa) and (b) of the CPC. If the application fulfils the above test, the Appellate Court is bound to consider the next question whether the document sought to be produced are prima facie_ ``` RSA NO. 139 OF 2021 10 ``` _relevant and admissible in evidence. Unless this question is considered at this stage, entire proceedings sometimes, may end as a futile exercise; after remand. If the documents produced are irrelevant and inadmissible and there is no possibility to tilt the balance of appreciation available on record, no purpose will be served by a remand. Third stage is the mode of taking additional evidence under R.28. If additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the Appeal is preferred or any other Court to take such evidence. Therefore, we are of the opinion that without resorting to these three stages, the Appellate Court cannot jump to the conclusion that the case requires remand in view of the application under 0.41 R.27 of the CPC. If the documents do not require to be tested and proved in trial, the Appellate Court can take such documents in evidence, without a remand. Thus remand arises when such additional documents are relevant and require to be tested and proved through the process of trial.”_ 11. Another decision of the Apex Court in **Sudhanve Reddy** v. **Karnataka Milk Federation,** reported in **[2018** ``` RSA NO. 139 OF 2021 11 ``` **(2) KLT 3083]** also has placed by the learned counsel for the 1[st] respondent. In paragraph No.28 of the said decision, it was held as under: _28. The documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly._ 12. The crucial question involved herein is whether the appellate court is justified in dismissing I.A.No.1211/2018. The appellate court dealt this matter in paragraph No.29 and relied on a decision of the Apex Court in **Sundarangan and Another** v. **L.Joys and Others,** reported in **[2017 KHC 932]** and the decision in ``` RSA NO. 139 OF 2021 12 ``` **Sudhanve Reddy** ’s **case** (supra) and the learned Sub Judge was not inclined to accept additional documents and accordingly, rejecting the prayer for accepting additional documents, the learned Sub Judge concurred the decree of partition pertaining to plaint B Item No.1 also. 13. Going by Order XLI Rule 27 (aa) and as per the ratio pointed out by the learned counsel for the 1[st] respondent, the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or 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 ``` RSA NO. 139 OF 2021 13 ``` Court may allow such evidence or document to be produced or witness to be examined. Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 14. Thus, the legal position is clear that the appellate court can permit production of additional documents for the reasons stated in Sub Section (1)(a) or (1)(aa) or (1)(b) of Order XLI Rule 27 of C.P.C. On perusal of the affidavit in support of I.A.No.1211/2018, the appellant stated that the acceptance and marking of title deeds were absolutely necessary in the ends of justice and the certified copies of the judgments were obtained only after disposal of suit by the trial court. So, the reason stated for non-production of the documents is that the certified copies of the above were not obtained before disposal of the suit by the trial court. The learned counsel for the appellant would submit that the appellant availed loan from Bank by pledging the original title deeds and therefore, the appellant failed to produce the same before the trial court. In this context, the objection filed by the 1[st] ``` RSA NO. 139 OF 2021 14 ``` respondent in response to I.A.No.1211/2018, is also relevant. In the objection, it has been stated specifically that, during trial stage, the 1[st] respondent filed I.A.No.1146/2009 and directed production of the above documents by defendants 2 and 3, since defendants 2 and 3 filed objection stating that they had handed over the title deed in favour of the 6[th] defendant. There was direction from the court to produce the same, as per order in I.A.No.890/2010. Despite the direction, the 6[th] defendant did not produce the documents. 15. Going by the matter in the controversy, it could be gathered that, plaint B Item No.1 property is 1 Acre land and as per the documents sought to be received at the appellate stage, the same, in fact, transferred in the name of the 6[th] defendant. However, the 6[th] defendant failed to produce the documents. When the plaintiff came to know about the above said documents, the plaintiff amended the suit and denied execution of the said documents, after one year of filing of the suit. 16. In this matter, when the 6[th] defendant asserts ``` RSA NO. 139 OF 2021 15 ``` absolute title based on registered documents sought to be received at the appellate stage, in respect of the entire property scheduled as plaint B Item No.1, I do not think that the first appellate court is justified in dismissing I.A.No.1211/2018. In fact, a genuine case, involving title to an extent of 1 Acre land, cannot be thrown away, without being adjudicated. Therefore, it has to be held, for the reasons stated in the affidavit in support of I.A.No.1211/2018, the additional documents are liable to be admitted in evidence, since acceptance of the said documents is absolutely essential to enable the court to pronounce judgment and the same is a substantial cause. Therefore, the appellate court went wrong in dismissing the I.A.No.1211/2018 and consequently confirming the partition in relation to plaint B Item No.1. 17. In view of the matter, I am inclined to allow I.A.No.1211/2018 and to accept the documents produced along with I.A.No.1211/2018, in evidence with liberty to the 6[th] defendant to prove his title, in accordance with law. For this purpose, preliminary decree passed in respect of ``` RSA NO. 139 OF 2021 16 ``` plaint B Item No.1 by the trial court and confirmed by the appellate court, will have to be set aside, while confirming the preliminary decree of partition in plaint B Item No.2 property, as such. However, it appears that, because of the delay in producing the title documents by the 6[th] defendant, the plaintiff suffered litigation cost upto the High Court. In view of the matter, the acceptance of the documents shall be subject to payment of cost of Rs.30,000/- (Rupees Thirty Thousand only) to the plaintiff, within 7 days from the date of appearance of the parties before the trial court and on failure to pay the cost, the appeal will stand dismissed. 18. Accordingly, the decree and judgments under challenge, stand set aside in relation to plaint B Item No.1 property, subject to payment of cost hereinabove ordered and this matter is remanded back to the trial court to consider the claim of the 6[th] defendant, based on the additional documents, as per law, with liberty to the other side to dispute its authenticity, since there is specific denial in the plaint. ``` RSA NO. 139 OF 2021 17 ``` 19. Parties are directed to appear before the trial court on 20.10.2023. It is specifically ordered that, if the appellant herein fails to pay the cost, as ordered above within 7 days from 20.10.2023, the appeal will stand dismissed and the decree and judgments under challenge, will stand revived. It is also made clear that the final decree proceedings in relation to plaint B 1 Item No.2 property can go on in accordance with law. Sd/- ## **A. BADHARUDEEN** **JUDGE** Bb