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Judgment
A.V. Sawant, J.—These two matters, the First Appeal and the Writ Petition, can be disposed of together by this common judgment. In First Appeal No. 470 of 1977 the question relates to the apportionment of the compensation under the Land Acquisition Act and hence, a reference u/s 30 of the Land Acquisition Act was made. The appellant Deosthan is a registered Public Trust viz. Deo Bhargavaram Pedhe Parsharam, which was claimant No. 1 before the learned Civil Judge, Chiplun, and claims to be the owner of the properties acquired under the award, dated 31st July, 1975. Claimants Nos. 2, 6, 7 and 8 also claim title to the said lands situate at village Pedhe Parsharam. The details of the lands and the compensation determined has been mentioned in Para 8 of the impugned Judgment, dated 31.1.1977. Under the said Judgment, it has been held that original Claimant Nos. 2, 3, 4, 5, 6, 7 and 8 were entitled to receive Rs. 646.87, Rs. 327.73, Rs. 24.15, Rs. 36.25, Rs. 2555.55, Rs. 271.22 and Rs. 164.34 respectively out of the amount of Rs. 4026.11 which was lying in the Court. Claimant No. 6 was directed to pay Rs. 83.20 to Claimant No. 1 out of the amount of Rs. 2555.55. The claimants were directed to produce no due certificate from the B.D.O., Chiplun, and the Chairman of the Chiplun Vividha Vikas Karyakari Society at the time of the receipt of the compensation from the Court. Original Claimant No. 1 has challenged the said order in this First Appeal.
I have heard Shri Dalvi for the Appellant Deosthan and Shri Kanade for present Respondent''s Nos. 5-A to 5-E. The question revolves mainly around interpretation of the original Sanad, Exh. 35, dated 9th September, 1864. Relying upon the said Sanad and the observations of this Court in certain reported decisions, to which a reference is made in Para 6 of the impugned Judgment, the learned Judge has held that the Sanad, Exh. 35, was not the title deed and no title could pass to the appellant in respect of the suit lands under the said Sanad, Exh. 35. Hence, the learned trial Judge found that the Appellant Deosthan was not entitled to receive the amount of compensation exclusively as per the award given by the Land Acquisition Officer. By a somewhat queer logic the learned trial Judge has held that original Claimants Nos. 2 to 8 would, however, be entitled to receive certain specified amounts of compensation.
In this Appeal, the Appellant has filed an application for additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. I have heard Shri Dalvi in support of the said Application which is opposed by Shri Kanade on behalf of the contesting Respondents. The additional evidence consist of the following documents:
(i) The order dated 12th November, 1952 issued by the Assistant Charity Commissioner, Bombay, u/s 20 of the Bombay Public Trusts Act, 1950. In the schedule of the properties of the Trust; the following entries appear:
Village S.No. Area Assessment Value Pedhe Parsharam Inam Tal. Chiplun Not surveyed 14375.3-4
Shri Dalvi has invited my attention to the provisions of Sub-section (2) of Section 21 of the Bombay Public Trusts Act, 1950, which provides that the entries made in the Register shall, subject to the provisions of the Act and subject to any change recorded under the foregoing provisions of the. Act be final and conclusive.
(ii) An application, dated 3rd November, 1958 made by the Sarpanch of Village Pedhe Parsharam addressed to the Collector, District : Ratnagiri (Exh. 256 in First Appeal No. 801/84). In para 8 of the Application there is a statement which reads as under:
All the Kadim Inamdars have in all 65 Bighas of land in the village. Excepting this all the land is Inam to the Deosthan and therefore, as shown in paragraph No. 5 above if the assessment is done about an amount of Rs 2000/- to 2500/- is to be recovered as Inam amount to Deosthan.
Shri Dalvi''s contention is that in view of the above statement in the application, the lands involved in the present reference u/s 30 must be deemed to be belonging to the Deosthan.
(iii) A copy of the Judgment, dated 13th September, 1916 in First Appeal No. 177 of 1914, decided by a Division Bench of this Court, where there is a reference to the Peshva''s original Sanad of 1754 to the effect that the properties in dispute were public religious properties.
(iv) Extract of the alienation register in which at Sr. No. 51 the name of Shri Deo Bhargavram, Manager, Committee, appears in respect of some of the lands of village Pedhe Parsharam. In Column 12 of the said extract, it has been mentioned that the entry relates to the "entire village deducting Kadim Inams". In Column 21 it has been mentioned that the village is not surveyed and area not entered in the Sanad.
In support of the application for additional evidence, Shri Dalvi has invited my attention to the provisions of Sub-clause (b) of Clause (1) of Rule 27 of Order XLI of the Code of Civil Procedure. It deals with the production of additional evidence in Appeal and provides that the parties in Appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if 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. Shri Dalvi has also invited my attention to the observations of the Supreme Court in the case of K. Venkataramiah Vs. A. Seetharama Reddy and Others, . In particular, he has invited my attention to the following observations which appear in para 16 of page 1530 of the Report:
The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right, for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this it is well to remember that the Appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce it judgment in a more satisfactory manner.
(Emphasis supplied)
Shri Kanade for the respondents has, however, opposed the production of the additional evidence on the ground that, in the first place, as far as the order passed by the Assistant Charity Commissioner, dated 12th November, 1952 is concerned, the exact identity of the land in dispute has not been established under the said order. Secondly, in respect of the application made by the Sarpanch on the 3rd November, 1958, Shri Kanade''s objection is that the statement in para 8 itself excludes 65 biggas of land held by Kadim Inamdars. It has, therefore, to be ascertained whether the lands involved in the present controversy form part of 65 biggas of land held by the Kadim Inamdars. Excluding this 65 biggas of land held by Kadim Inamdars, undoubtedly the remaining land has been held to be belonging to the Deosthan. Thirdly, as far as the Judgment of this Court in First Appeal No. 177 of 1914, decided on 13th September, 1916 is concerned, Shri Kanade''s objection is that it proceeds on the footing, of the Peshva''s original Sanad of 1754. Shri Dalvi contends that what has been granted to the appellant Deosthan under the British Government Sanad on 9th September, 1864, Exh. 35, are the very lands covered by the Peshva''s Sanad of 1754. However, Shri Kanade says that as the record stands today, one is not in a position to connect the Peshva''s Sanad of 1754 with the British Government Sanad of 9th September, 1864, Exh. 35. Evidence will have, therefore, to be led as regards the same. Lastly, as far as the extract of alienation register is concerned, Shri Kanade''s objection is again as regards the identity of the exact land.
Having regard to the fact that the matter relates to the properties of a public trust, in my view it would be necessary to ascertain the exact identity of the land covered by the documents annexed to the Civil Application for additional evidence. Shri Dalvi fairly stated that it may not be possible at this stage to come to a definite conclusion that all the documents sought to be produced in this Court do relate to the lands in dispute. Since 65 biggas of land held by Kadim Inamdars have been excluded from the lands belonging to the appellant Deosthan, it will have to be found out as to which are the 65 biggas of land belonging to the Kadim Inamdars. If it is ultimately found, on proper evidence being led, that none of the respondents or the contesting claimants, excepting the Deosthan, are the Kadim Inamdars in respect of the 65 biggas of land, it must follow that the lands acquired belong to the appellant Deosthan. In my view, therefore, while granting the application for additional evidence, opportunity will have to be given to the contesting respondents to lead such evidence as they deem fit. Having regard to the fact that the appellant Deosthan is claiming the property as its own, in my view, interests of justice would require that the Appellant be also given a further opportunity of leading evidence to establish its title in respect of the lands acquired. In my view, this is a case where there are certain things which remain obscure and interest of justice require that something which remains obscure should be filled up so that the Court can pronounce its judgment in a more satisfactory manner, as observed by the Supreme Court in K. Venkataramiah''s case, referred to above. I am, therefore, inclined to allow this application for additional evidence, but at the same time remand the matter back to the trial Court directing that all the claimants be given fresh opportunity of leading evidence in respect of their respective contentions.
Hence, the impugned order will have to be set aside. The parties will have to be given a fresh opportunity of leading evidence in support of their respective claim. The application for additional evidence will have to be allowed. Hence, the following order:
(i) Civil Application No. 6554/91 is allowed. No order as to costs.
(ii) The impugned judgment and order, dated 31.10.1977 in Land Acquisition Reference No. 7 of 1975 is set aside. The matter is remanded back to the learned trial Judge with the direction that the claimants be given a fresh opportunity of leading evidence in support of their claim;
(iii) The trial Court is also directed to give notice to the Charity Commissioner to put forth his contention and lead such evidence as may be necessary;
(iv) In view of the order passed today in Writ Petition No. 1040 of 1982, the petitioners in the said Writ Petition will have to be joined as parties in the said Land Acquisition Reference No. 7/75. Both Shri Dalvi and Shri Kanade have no objection to the petitioners in Writ Petition No. 1040 of 1982 being joined as parties in Land Acquisition Reference No. 7/75. The Trial Court will, therefore, also issue notices to the petitioners in Writ Petition No. 1040/82 while deciding the said Land Acquisition Reference No. 7/75;
(v) Since the matter is being remanded to the trial Court, I wish to make it clear that nothing said in this order will prejudice the contentions of any of the parties and the contentions of all the parties are kept open;
(vi) Since the matter arises out of a Reference of 1975, the trial Court is directed to hear and dispose of the matter as expeditiously as possible and preferably, by the end of this year;
(vii) Appeal allowed accordingly. No order as to costs.