Akhilesh Singh @ Akhileshwar Singh vs Lal Babu Singh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2108 OF 2018 (Arising out of SLP (C) No. 19738/2017)

AKHILESH SINGH @ AKHILESHWAR SINGH …APPELLANT

VERSUS

LAL BABU SINGH & ORS. …RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against the judgment of

Patna High Court dated 08.03.2017 in First Appeal No.

704/1976 by which the First Appeal filed by defendants to

the suit has been allowed setting aside the judgment and

decree of the trial court decreeing the partition suit.

2. The brief facts of the case which need to be noted Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2018.02.21 17:00:38 IST for deciding this appeal are:-

Reason:

Title Suit No. 406/1973 was filed by one Sheo 2

Prasad Singh (Grandfather of appellant before us) and

his three sons seeking partition of their 1/4th share

in joint family properties described in Schedule B, C

and D of the plaint. In the plaint, it was pleaded

that plaintiffs and defendants are descendants of a

common ancestor. Kalpoo Singh had four sons.

Plaintiffs represented branch of Sheo Prasad Singh

whereas defendants represented other three branches.

It was pleaded that there was a disruption in the

joint family in or around 1963. Whereafter, all the

branches of Kalpoo Singh separated in their mess,

business and worship but cultureable land and

residential houses remained joint. Order passed by

Commissioner, Patna Division arising out of a

proceeding for mutation on respective land was also

in question. Trial court vide its judgment and

decree dated 10.08.1976 decreed the suit of the

plaintiff declaring 1/4th share of the plaintiff in

the properties described in Schedule B, C and D. The

defendants Lal Babu Singh & Ors. filed First Appeal

No. 704 of 1976 against the judgment and decree of

the trial court. During pendency of the First Appeal,

the defendants-respondents, who were appellant in 3

First Appeal, filed various applications under Order

LXI Rule 27 Code of Civil Procedure for acceptance of

additional evidence in the First Appeal. The first

application under Order LXI Rule 27 was filed on

27.10.1997 for accepting a Sale Deed dated 27.08.1992

on the record. Other applications filed for

accepting additional evidence were I.A. No. 6457 of

1998, I.A. No. 3731 of 2011 and I.A. No. 5195 of

2016. High Court has passed an order on the I.A.s

that applications shall be heard at the time of

hearing of the appeal. The First Appeal came to be

heard by the High Court on 08.03.2017. At the time

of hearing, unfortunately, nobody appeared on behalf

of appellant, who was respondent in the First Appeal.

The High Court after hearing the learned counsel for

the defendants-respondents allowed I.A. No. 6457 of

1998, I.A. No. 3731 of 2011 and I.A. No. 5195 of 2016

by accepting the additional evidence, which was

sought to be brought on record. Simultaneously, the

High Court proceeded with the hearing of the appeal

and relying on additional evidence allowed the First

Appeal setting aside the judgment and decree of the

trial court. The appellant aggrieved by the judgment 4

of the High court has come up in this appeal.

3. Learned counsel for the appellant contended that in

event the High Court decided to admit the additional

evidence under Order XLI Rule 27 CPC, the High Court

ought to have given opportunity to the

plaintiff-respondent to rebut the additional evidence

brought on record by the defendants. The High Court

having not given any such opportunity to plaintiff

has committed serious error of procedure, which has

caused great prejudice to present appellant vitiating

the entire judgment of the High Court. It is

submitted that the High Court in the additional

evidence has relied on certain admissions by the

appellant and other co-sharers whereas the appellant

was not given any opportunity by the Court to lead

evidence in rebuttal and explain the additional

evidence relied by defendants-respondents. Learned

counsel submits that the reliance on such additional

evidence without giving opportunity to lead evidence

in rebuttal had vitiated the entire procedure adopted

by the High Court, vitiating the judgment and decree

of the High Court.

5

4. Learned counsel for the respondents refuting the

submission of the counsel for appellant contends that

the High Court has rightly relied on the admissions

contained in the additional evidence, which was

admitted by the High Court since although respective

I.A.s were filed long before but neither any counter

affidavit to the I.A.s nor any explanations were

ever submitted by the plaintiff appellant. The High

Court thus has no choice except to proceed to decide

appeals relying on the additional evidence admitted

in the Court. It is submitted that the execution of

sale deeds which were relied, was never disputed nor

the statements contained in the sale deeds were even

disputed by plaintiff-appellant before the High

Court. Hence, no error has been committed by the High

Court in relying on the additional evidence. He

submits that the High Court itself has noticed in the

order that I.A.s filed by defendants-respondents for

accepting additional evidence were never objected by

filing a counter affidavit by the plaintiff.

5. Learned counsel further submits that there being 6

clear admissions in the sale deeds, which were

brought on the record that there has been partition

in the family, suit of the plaintiff for partition

has rightly been dismissed.

6. We have considered the submissions of the learned

counsel for the parties and perused the records.

7. The submission which has been pressed before us by

the learned counsel for the appellant that the High

Court ought to have granted opportunity to the

plaintiffs-appellants, who were respondents in the

First Appeal before the High Court after accepting

the additional evidence as prayed by

defendant-appellant in the First Appeal; we thus

confine our consideration to this issue alone.

8. The record reveals that additional evidence, which

was sought to be taken on record by the defendants,

who were appellants before the High Court were all

the evidences, which came into existence after the

decree of the trial court. The applications filed

under Order

LXI Rule 27 CPC have been considered by the High 7

Court in Paragraphs 22 to 25 of its judgment. The

application dated 27.10.1997 having been rejected by

the High Court, no further comment is needed. After

referring to the other I.A.s in Paragraphs 23, 24 and

25 of the judgment, the High Court allowed the three

I.A.s, namely, I.A. No. 6457 of 1998, I.A. No. 3731

of 2011 and I.A. No. 5195 of 2016 and relying on the

additional evidence, brought on the record and

referring to admissions in the said documents, the

High Court has allowed the First Appeal by setting

aside the judgment and decree of the trial court. In

Para 26, 30 and 31, following has been stated:-

“26. It may be mentioned here that all these documents were not available during the trial and moreover, these documents are the documents of the plaintiffs-respondents and the appellants had no knowledge earlier. During the pendency of this appeal, these documents have been executed by the plaintiffs-respondents wherein they clearly admitted the previous partition between four branches i.e. sons of Kalpoo Singh and even they admitted inter se partition between themselves. It is not their statement in the sale deeds or the plaint or the application that partition is effected after disposal of partition suit. In all the sale deeds, the application, the plaintiffs themselves admitted previous partition between the parties i.e. prior to institution of the suit 8

for partition. The appellants claimed previous partition in the year 1958-59 whereas the plaintiffs admitted in the plaint filed by them for inter se partition that there had already been partition between four brothers in 1965. Now, therefore, only dispute between the parties is in which year partition took place. It may be mentioned here that this partition suit is of the year 1973. Therefore, whether partition took place in 1958-59 or in the year 1965, it is irrelevant because prior to the present partition suit the parties have already partitioned the suit property.

30. In view of my above discussion, the three I.As. filed by the appellants are hereby allowed and on the basis of the evidences discussed above, I come to the conclusion that the appellants have been able to prove that there had already been partition as claimed by the defendants-appellants. There is no unity of title and possession between the parties.

It appears that the court below has not properly appreciated the evidences as discussed above and moreover, the documentary evidences produced by the appellants by way of additional evidences were not available during trial. Thus, the finding of the learned trial court is hereby reversed.

31. In the result, this First Appeal is allowed. The impugned judgment and decree are set aside. The plaintiffs-respondent's suit for partition is hereby dismissed.”

9. It is also relevant to note that the High Court in

its judgment in Para 11 has stated that applications

were directed to be heard at the time of hearing and

although the I.A.s had been filed long ago nor any

counter-affidavit or any reply has been filed and 9

nobody appeared to controvert the case of the

appellant.

10.As noticed above, the High Court while allowing the

I.A.s and accepting the additional evidence on record

proceeded to pronounce the judgment simultaneously.

The question to be answered in this appeal is as to

whether the High Court ought to have granted an

opportunity to the defendant-appellant, who was

respondent in the First Appeal to lead evidence in

rebuttal or to give an opportunity to explain the

alleged admissions, which were relied by the

defendant-appellant before the High Court.

11.Order LXI Rule 27 of the CPC, which deals with the

provision of additional evidence in Appellate Court

provides for the grounds and circumstances on which

the Appellate Court may allow such evidence or

documents or witnesses to be examined. Order LXI

Rule 27 sub-rule(2) further provides that wherever

additional evidence is allowed to be produced by an

Appellate Court, the court shall record a reason for

its admission. Order LXI Rule 27 is silent as to the 10

procedure to be adopted by the High court after

admission of additional evidence. Whether after

admission of additional evidence, it is necessary for

the Appellate Court to grant opportunity to the other

party to lead evidence in rebuttal or to give any

opportunity is not expressly provided in Order LXI

Rule 27.

12.One provision, which is part of Order LXI, which also

needs to be noted is Order LXI Rule 2, which is as

follows:-

2. Grounds which may be taken in ap-

peal.- The appellant shall not, ex-

cept by leave of the court, urge or be heard in support of any ground of objection not set forth in the memo-

randum of appeal; but the appellate court, in deciding the appeal, shall not be confined to the grounds of ob-

jections set forth in the memorandum of appeal or taken by leave of the court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportu- nity of contesting the case on that ground.

13.Order LXI Rule 2 provides that the appellant shall

not, except by leave of the court, be allowed to urge 11

any ground in the appeal, which is not set forth in

the memorandum of appeal. The proviso to Order LXI

Rule 2 engrafts a rule, which obliged the Court to

grant a sufficient opportunity to the contesting

party, if any new ground is allowed to be urged by

another party, which may affect the contesting party.

The provision engrafts rule of natural justice and

fair play that contesting party should be given

opportunity to meet any new ground sought to be

urged. When Appellate Court admits the additional

evidence under Order LXI Rule 27, we fail to see any

reason for not following the same course of granting

an opportunity to the contesting party, which may be

affected by acceptance of additional evidence. In the

present case, additional evidence, which were brought

on the record were registered sale deeds, which were

executed by present appellant and his other

co-sharers and what was relied before the High Court

was that the appellant admitted in the sale deeds

that the partition has been taken place in the

family. The main issue in the First Appeal before

the High Court was as to whether the finding of the

trial court that no partition by metes and bounds 12

taken place in the family is correct or not. The

additional evidence which was admitted has been

relied by the High Court while allowing the appeal.

It was in the interest of justice that High Court

ought to have allowed opportunity to the plaintiffs,

who were respondents to the First Appeal to either

lead an evidence in rebuttal or to explain the

alleged admissions as relied by the defendants. The

mere fact that no counter affidavit was filed to the

I.A.s was not decisive. Since I.A.s having not been

admitted, occasion for counter affidavit did not

arise at any earlier point of time. The High Court on

the same day, i.e. 08.03.2017 has allowed the I.A.s

as well as the First Appeal. The fact that

contesting respondents to the First Appeal, who are

appellant before us were not represented at the time

of hearing of the First Appeal, was not a reason for

not giving opportunity to them to lead evidence in

rebuttal.

14.A three-Judge Bench of this Court in Land

Acquisition Officer, City Improvement Trust Board

Vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 had 13

occasion to consider Order LXI Rule 27 in context of

admission of additional evidence by Appellate Court.

This Court had observed that in event the High Court

admits an additional evidence, an opportunity should

have been given to the other party to rebut any

inference arising from its existence by leading

evidence. In Para 28 of the judgment, following has

been laid down:-

“28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substan-

tial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of 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 sub- stantial 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 existence by leading other evidence.”

(emphasis supplied by us)

15.To the same effect is another judgment of this Court

in the case of Shalimar Chemical Works Limited Vs.

Surendra Oil and Dal Mills (Refineries) & Ors., 14

(2010) 8 SCC 423. In this case also, the Court had

occasion to consider Order LXI Rule 27, this Court

has again laid down that when documents are taken in

additional evidence, an opportunity ought to have

been given to other party to lead evidence in

rebuttal. In the above case also, the High Court

simultaneously proceeded to decide the appeal

alongwith admitting additional evidence on record.

In Paragraphs 16 to 18 following has been laid down:-

“16. The learned Single Judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding si- multaneously to allow the appeal and not giv- ing the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.

17. The Division Bench was again wrong in tak-

ing the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was cer- tainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-de- 15

fendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the cer- tificates of registration produced by the ap- pellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so de- sired. We, accordingly, proceed to do so.

18. The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the respon- dent-defendants to lead any rebuttal evidence or make a limited remand as provided under Or- der 41 Rule 28.”

16.The submission of the learned counsel for the

respondents that execution of sale deeds was never

denied by the present appellant before the High

Court, hence no error has been committed by the High

Court in relying on the contents in the sale deed

cannot be accepted. Even if, execution of sale deeds

was not denied, the Appellate Court before which any

statement in sale deeds is relied ought to have given

an opportunity to lead evidence in rebuttal or to

explain the admission. Opportunity to explain the

admission contained in the sale deeds was necessary 16

to be given to the contesting party in the facts of

the present case. We thus are of the opinion that

the High Court erred in simultaneously proceeding

with the hearing of the appeal after admitting

additional evidence on record. The High Court ought

to have given opportunity to contesting respondents

in the First Appeal to lead evidence in rebuttal or

to explain the alleged admission as contained in the

sale deed, which having not been done, the order and

judgment of the High Court deserves to be set aside.

The High Court may now proceed to decide the appeal

afresh after giving an opportunity to the present

appellant to lead evidence in rebuttal. The appeal

before the High Court being pending since 1976, we

expect that the High Court should conclude the entire

process expeditiously preferably within a period of

six months from the date of production of this

judgment before the High Court. We make it clear

that we have not expressed any opinion on merits of

the case and it is for the High Court to consider the

First Appeal on merits afresh and take a decision in

accordance with law. In result, this appeal is

allowed, judgment and decree of the High Court is set 17

aside. The First Appeal be decided by the High Court

afresh as observed above. Parties shall bear their

own costs.

..........................J. ( A.K. SIKRI )

..........................J. ( ASHOK BHUSHAN )

NEW DELHI, FEBRUARY 21, 2018.

18

ITEM NO.1503 COURT NO.6 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 2108/2018

AKHILESH SINGH @ AKHILESHWAR SINGH Appellant(s)

VERSUS

LAL BABU SINGH & ORS. Respondent(s)

(HEARD BY: HON. A.K.SIKRI AND HON. ASHOK BHUSHAN, JJ. )

Date : 21-02-2018 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Bipin Bihari Singh, Adv.

Moni Cinmoy, Adv.

Mr. Rakesh Kumar, Adv.

Mr. Somanatha Padhan, Adv.

Mr. Ashok Anand, AOR

For Respondent(s) Mr. Suhaas Ratna Joshi, AOR

Hon'ble Mr. Justice Ashok Bhushan pronounced the judgment of

the Bench comprising Hon'ble Mr. Justice A.K. Sikri and His

Lordship.

The appeal is allowed in terms of the signed reportable

judgment.

Pending application(s), if any, stands disposed of

accordingly.

(Ashwani Thakur) (Mala Kumari Sharma) COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)