MADDIPATI NARASIMHAMURTI (MINOR) Vs. HAYAT KHAN

JUDGEMENT

(1.) The first respondent filed this suit in the Court of the District Munsif of Kovvur for the redemption of a usufructuary mortgage created on the 20 April, 1877, in respect of 2-61 acres of land. The first respondent's case was that this property was mortgaged by his; great uncle, one Sujayat Beg, in favour of the predecessors in title of the appellants, that the period for which the mortgage was created expired in 1927 and that he was entitled to three quarters of Sujayat Beg's estate, to the extent of a quarter as the result of succession and to the extent of a half as the result of a purchase made by his mother. In order to establish a right to any portion of the property, it was incumbent upon the first respondent to prove his mother's relationship to the mortgagor and that the persons who sold their interests to his mother were also heirs of Sujayat Beg. The appellants, in addition to denying the relationships set out by the first respondent, averred that they had acquired title by adverse possession. The District Munsif held that the first respondent had not proved the relationships with Sujayat Beg which were necessary to support his case and he also found against him on the issue of adverse possession. The District Munsif found that the appellants had perfected their title to the land by adverse possession for the statutory period. On appeal to the Subordinate Judge of Ellore both these findings were reversed. In deciding that the first respondent had established the relationship with Sujayat Beg he relied on documentary evidence which was not"tendered in the trial Court but was produced while the appeal was pending. The first question which has to be decided in this appeal is whether the Subordinate Judge was entitled to have regard to this further evidence. For reasons which will be stated presently it is clear that he adopted a wrong course both in admitting and in acting upon this additional evidence.

(2.) Order 41, Rule 27(1) states that 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 (b) the appellate Court requires any document to be produced or any witnesses 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. The Privy Council has in two cases laid down the scope of this rule. In Kessowji Issur V/s. G.I.P. Railway Co. (1907) 17 M.L.J. 347 : L.R. 34 I.A. 115 : I.L.R. 31 Bom. 381 (P.C.), Lord Robertson in delivering the judgment of the Board observed that the legitimate occasion for the application of Section 568 of the Code of Civil Procedure of 1882 (which corresponds to Order 41, Rule 27) was when on examining the evidence some inherent lacuna or defect became apparent, not where a discovery was made to import it. In Parsotim Thakur V/s. Lal Mohar Thakur (1931) 61 M.L.J. 489 : L.R. 58 I.A. 254 : I.L.R. 10 Pat. 054 (P.C.), the Judicial Committee re-affirmed this statement of law and went on to observe: It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.

(3.) Now, what is the position here? In the first place the Subordinate Judge has not recorded his reasons for admitting the evidence which he is required to do by Order 41, Rule 27(2). An application by the first respondent for the admission of these documents was made before the appeal was heard, but it was not considered until the appeal itself was being argued. Having heard the arguments the Subordinate Judge said that he was inclined to admit them for reasons to be mentioned in his judgment. But his judgment contains no reasons for the admission of the documents. This may be an oversight, but it is an oversight which involves failure to comply with mandatory provisions of the Code of Civil Procedure. But assuming that the Subordinate Judge had given his reasons, it would not affect the result of this appeal because it is quite clear that the admission of these documents was not for the purpose of remedying some inherent lacuna or defect but for the purpose of providing corroboration for oral testimony which had been disbelieved by the trial Judge. The oral evidence was complete and if it had been believed, it would have substantiated the first respondent's case. Therefore there was no question of any lacuna or inherent defect. The additional evidence admitted in this case was not necessary for the Court to appreciate the first respondent's case or to pronounce judgment on it. As the result of the admission of additional evidence the Subordinate Judge has disposed of the appeal on a wrong basis.