Parappa Channappa Jabin vs S.M. Pukraj and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 29.02.2012 made in R.A. No. 58/2000 on the file of the Additional Senior Civil Judge, Gadag, confirming the judgment and decree dated 31.03.2000 made in O.S. No. 433/1989 on the file of the Addl. Civil Judge (Jr. Dn.) & JMFC, Gadag dismissing the suit for declaration and injunction.

The plaintiff filed the suit for declaration and permanent injunction contending that Parappa Channappa Jabin is a registered partnership firm. The plaintiff is a partner and he had succeeded as legal heir to the deceased Smt. Channamma W/o. Parappa Jabin and he was adopted son of Parappa. It is further contended that he is the owner of the suit property and he had purchased the suit schedule properties under a public auction held on 15.12.1964 in pursuance of the orders passed by the Civil Judge (Jr.Dn.) at Gadag in L.D. No. 99/1963. The right, title and interest of one Andanayya adopted father Kotrayya Prabhudevarmath, residing at Gadag was transferred in favour of plaintiff through the Court auction and the sale certificate. The plaintiff had obtained a decree against him in L.C. Suit No. 365/1961 in the Court of Munsiff at Hubli on 13.08.1962. The attachment warrant in respect of suit properties was executed in the execution proceedings on 15.07.1963. Accordingly, auction was held on 15.12.1964 and the sale was confirmed for a sum of Rs. 4425/- on 10.11.1965 and sale certificate was also issued on 11.01.1966 in L.D. No. 99/1963. The plaintiff was put in actual possession of suit properties on 05.12.1966 by the order of the learned Civil Judge Junior Division, Gadag in diary No. 150/1966 except a house in possession of Kallayya Mathad. The plaintiff further alleged that he did not take possession of the house in which Kallayya Mathad was residing as a mortgagee. The said Kallayya Mathad was residing in the north west portion in CTS No. 1196/3A/1 and then it was renumbered as 1196/3A/1B. The plaintiffs have obtained a decree against said Kallayya Mathad in O.S. No. 142/1969 in the Court of the II Addl. Munsiff, Gadag and suit was decreed and declared that the plaintiff is owner of the suit schedule property and he is entitled to redeem the mortgage after paying Rs. 1,000/- and he was entitled to the possession. He has filed this suit against the said Kallayya Mathad for redemption and also for possession. The 1st defendant without the knowledge of the plaintiff and without impleading the plaintiff as a party had brought the suit properties for sale in Execution Case No. 9/1975 in the Court of the Civil Judge at Gadag. Mischievously, defendants had brought the suit properties for sale in an execution petition against Andanayya Prabhudevarmath. The said Andanayya Prabhudevarmath had no title to the suit properties after 1965 and also not the owner and in possession of suit properties. But plaintiff had already acquired title over the suit properties in Court auction held on 15.12.1964 and he is in possession and enjoyment of the suit properties from 05.12.1966. Therefore, the defendants cannot get any right, title interest over suit properties. Hence, the auction sale in Execution Case No. 9/1975 is null and void etc. Therefore, the plaintiff filed the suit.

The defendants filed written statement, denied the entire plaint averments and contended that the defendants are bona fide purchasers without notice of the Court auction of the suit properties in the Court auction sale. Further they contended that the plaintiff being remained silent for all these years and now he is coming with a false allegation that he is the owner of the suit properties. As such, the plaintiff is put to strict proof of the alleged right and plaintiff is estopped from alleging the same. Though, the plaintiff alleges that his title to the suit properties by virtue of the Court auction, he never asserted his title since the year 1966 and is not in possession and the suit is barred by time and also contended that the suit properties are not valued properly. The valuation made by the plaintiff was in adequate and not proper. Since the properties were purchased by these defendants for a sum of Rs. 25,000/- as long back as in the year 1975 and 1981 and they are now worth more than that, as such valuation is not proper and Court fee paid is not sufficient and also contended that the defendants purchased the suit properties in Execution Case No. 9/1975 with permission of the Court after following all the legal procedure, even at the time of the said auction sale and subsequently at the time of taking possession of the suit properties through the Court under the sale certificate issued to them plaintiff was not in their possession and never asserted his title etc and prayed for dismissal of the suit.

Based on the pleadings, the Trial Court framed the following issues:

"i. Whether the plaintiffs prove that "Parappa Channappa Jabin" is a registered partnership firm and the plaintiff Jadiyappa is a partner?

ii. Whether the plaintiff Jadiyappa prove that he is the legal heir of deceased partner Smt. Channamma W/o. Parappa Jabin, and after her death he is the adopted son of Parappa S/o. Channappa Jabin?

iii. Whether the plaintiff prove that he is lawful and absolute owner in possession of the suit properties since 05.12.1966 by virtue of the auction purchase dated 15.12.1964 in L.D. 99/63, of the Civil Judge Junior Division Gadag?

iv. Whether the plaintiffs prove that the auction sale of the suit properties in execution case No. 9/75 of the Civil Judge Gadag, is liable to be declared as void and illegal?

v. Whether the plaintiff is entitled to be declared as the lawful absolute owner in possession of the suit properties?

vi. Whether the plaintiff is entitled for consequential relief of permanent injunction against the defendants?

vii. Whether the plaintiff prove that the proceedings in Execution Case No. 9/75 is barred by principles of Res judicata?

viii. Whether the defendants 1, 2, 3 prove that plaintiff had obtained a collusive decree and sale of the suit properties?

ix. Whether the defendants 1, 2, 3 prove that they are the bona fide purchasers of the suit properties for value without notice of previous auction sale?

x. Whether the defendants 1, 2, 3 prove that this suit filed by the plaintiff for declaration without asserting the title since 1966 is barred by limitation?

xi. Whether the defendants 1, 2 prove that this suit is not properly valued?

xii. What decree or order?

(Issues No. 7, 10, 11 are preliminary Issues)

Additional issues:--

i. Whether the suit is bad for non-joinder of necessary parties?

ii. Whether the cause of action survives against Defendant No. 1 A?

iii. Whether the defendant No. 3 proves that the present plff. firm has no subsisting title and rights to sue in respect of the suit properties as its has already been dissolved and the assets and liabilities of the old firm have been transferred and taken over by a new firm called as "P.C. Jabin & Sons"?"

In order to establish his case, the plaintiff examined himself as P.W. 1 and witnesses P.Ws. 2 and 3 and marked the documents as Exs. P-1 to P-13. The defendants examined themselves as D.Ws. 1 and 2 and marked documents as Exs. D-1 to D-10.

The Trial Court after considering the entire material on record, recorded a finding that the plaintiff failed to prove Parappa Channappa Jabin as a registered partnership firm and plaintiff Jadiyappa is a partner and also failed to prove that he is the legal heir of the deceased Smt. Channamma W/o. Parappa Jabin and after her death, he was adopted son of Kotrayya Prabhudevarmath and further plaintiff failed to prove that he is lawful and absolute owner in possession of suit property since 05.12.1966 by virtue of auction purchase dated 15.12.1964 and also failed to prove that the auction sale of suit properties in Execution Case No. 9/1975 is liable to be declared as void and illegal. Further the Trial Court recorded a finding that the plaintiff is not entitled to be declared as lawful owner in possession of suit properties and he has not entitled any relief of permanent injunction. The Trial Court further held that the plaintiff failed to prove that the proceedings in Execution Case No. 9/1975 is not barred by principles of res judicata and defendant Nos. 1 to 3 proved that plaintiff had obtained a collusive decree and sale of the suit properties and the defendant Nos. 1 to 3 proved that they are the bona fide purchasers of suit property for valuable consideration without notice of previous auction sale and defendant Nos. 1 to 3 also proved that the suit filed by the plaintiff for declaration without asserting of title since 1966 is barred by limitation. Accordingly, the suit came to be dismissed.

Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed R.A. No. 58/2000 before the Additional Senior Civil Judge, Gadag, who after hearing both the parties, by his impugned judgment and decree dated 29.02.2012 dismissed the appeal, confirming the judgment and decree of the Trial Court. Against the concurrent findings of facts recorded by the Courts below, the plaintiff did not deter preferring the present Regular Second Appeal.

I have heard the learned counsel for the appellant.

Shri Chennabasavaraj S. Shettar, learned counsel appearing on behalf of Shri M.G. Naganuri for the appellant strenuously contended that during the pendency of the appeal before the lower Appellate Court, the appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for permission to produce the additional evidence on 27.05.2004 along with the list of documents i.e., certified copy of the instrument of partnership of Parappa Channappa Jabin partnership firm dated 29.11.1943 and certified copy of the instrument of Paramma Channappa Jabin partnership firm dated 26.03.1966 and he also contended that the respondent also filed objections to the said applications on 17.06.2004. The lower Appellate Court without considering the said application has proceeded to pass the impugned judgment and decree, confirming the judgment and decree of the Trial Court erroneously which is contrary to the dictum of the Hon''ble Supreme Court in the case of Jatinder Singh and Another Minor through Mother Vs. Mehar Singh and Others, . Therefore, he sought to set aside the judgment and decree of the lower Appellate Court.

This Court while admitting the appeal has framed the following substantial question of law.

"Whether the lower Appellate Court is justified in reversing the judgment and decree of the Trial Court while deciding the appeal on merits without considering the application filed by the appellant under Order 41 Rule 27 of the Code of Civil Procedure, 1908 - additional evidence?"

I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and perused the entire material on record.

It is not in dispute that the suit filed by the plaintiff for declaration and injunction was dismissed by the Trial Court on considering both the oral and documentary evidence on record and the appellant filed appeal against the judgment and decree of the Trial Court. During the pendency of the appeal, an application was filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 on 27.05.2004 for production of additional evidence (documents) in support of his case. Admittedly, the lower Appellate Court has not considered the said application and proceeded to dispose of the appeal itself on merits.

The scrutiny of the entire material on record, it is not disclosed that the lower Appellate Court has considered and passed any orders on the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908. Therefore, it clearly depicts that the lower Appellate Court has not decided the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, before deciding the appeal on merits. Therefore, the judgment and decree of the lower Appellate Court has vitiated on account of non-consideration of the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908. It is well settled law that an application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 is to be considered at the time of hearing of the appeal on merits, so as to find out whether the documents or evidence sought to be adduced have any relevance or bearing on the issues involved. The admissibility of the additional evidence does not depend upon the relevance of the issue on hand or on the fact. Whether the applicant had an opportunity to adduce such evidence at earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce the judgment or for any other substantial cause and whether the lower Appellate Court is able to pronounce the judgment and decree on material before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only on the examination of the evidence and the Court come to the conclusion that some inherent lacuna depicts become part of the Court.

In the present case, admittedly lower Appellate Court without considering the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 has proceeded with the merits of the case. Before disposing of the appeal on merits, it is the duty of the lower Appellate Court to consider the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908. It should be considered at the first instance at the time of disposal of the appeal on merits. In the present case, the lower Appellate Court has not considered before deciding the appeal on merits or at the time of dispose of the appeal on merits and same is contrary to the dictum of the Hon''ble Supreme Court in the case of Jatinder Singh and Another Minor through Mother Vs. Mehar Singh and Others, , wherein in paragraphs 4 and 5 held as under:

"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of 23 additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.

For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs."

In view of the aforesaid reasons, the substantial of law answered in the negative holding that the Appellate Court has not justified in allowing the appeal on merits without considering the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 filed by the appellants. Therefore, the impugned judgment and decree of the lower Appellate Court vitiated and cannot be sustained.

In the result, the appeal is allowed in part. The judgment and decree of the lower Appellate Court dated 29.02.2012 made in R.A. No. 58/2000 on the file of the Additional Civil Judge is set aside and the matter is remanded to the lower Appellate Court for re-consideration and pass the orders on the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 filed by the appellant and proceed with the matters in accordance with law.

Ordered accordingly.