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Judgment
Dr. A.K. Rath, J. - This is plaintiff''s appeal against a reversing judgment in a suit for declaration and permanent injunction.
The case of the plaintiff is that the Government of Orissa had issued notifications for acquisition of the suit schedule land for the purpose of
construction of M.K.C.G. Medical College, Berhampur. The suit land had been recorded in the name of Government of Orissa in the Department
of Health and Family Planning. The final R.O.R. was published in the year 1979. The boundary wall of the Medical College had been constructed
over the suit land. On 28.10.1996, the defendant had damaged the boundary wall of the Medical College and started construction over the same.
The plaintiff informed the matter to the police about the illegal entry of the defendant over the suit land. The defendant has no semblance of right,
title and interest over the suit land.
Pursuant to issuance of summons, the defendant entered appearance and filed a written statement denying the assertions made in the plaint. It is
stated that his mother P. Managmma purchased the suit lands from one Tulasi Patra and Purna Chandra Mohanty under three registered sale
deeds and remained in possession of the same. The plaintiff had not acquired the suit land at any point of time, nor possessed the same. During the
last settlement operation, the suit lands were wrongly recorded in the name of the plaintiff. It is further stated that he and his family members were
staying away from Berhampur. When he learnt about the wrong recording of the suit land in the name of plaintiff, he filed a petition before the
Tahasildar to mutate the suit land in his favour. The Tahasildar demanded a no objection certification from the plaintiff. The plaintiff, after
discovering that the suit land had not been acquired and included in the Master Plan for Medical College, tried to ascertain from the Revenue
authorities and the Land Acquisition Authority about the real position and when the authority reported that the lands had not been acquired, the suit
was filed.
On the inter se pleadings of the parties, the learned trial court struck five issues. The same are as follows:-
Is the suit as laid maintainable in the eye of law ?
Has the plaintiff any cause of action to bring the suit ?
Is the plaintiff entitled for a declaration that he has right, title, interest over the suit land ?
Is the plaintiff entitled for a decree of permanent injunction as prayed for ?
To what other relief, if any, the plaintiff is entitled ?
To substantiate the case, the plaintiff had examined one witness and on its behalf, three documents were exhibited. The defendant no.1 was
examined as D.W.1 and on his behalf, twelve documents were examined. The suit was decreed. Assailing the judgment and decree passed by the
learned trial court, the defendant filed T.A.No.56 of 1998 in the court of the learned District Judge, Ganjam-Gajapati, Berhampur. The appeal was
allowed.
This Second Appeal was admitted on the following substantial questions of law:-
(i) Whether in absence of records of land acquisition, the lower appellate court committed an illegality in not accepting the letter dated 16.6.1975
of the Land Acquisition Officer, Ganjam indicating acquisition of the suit property under the Land Acquisition Act as an additional evidence ?
(ii) Whether the R.O.R. vide Ext.1 can be accepted as a proof of acquisition of the disputed land ?
Ms. Mishra, learned Additional Standing Counsel for the appellant, submitted that the suit land was acquired by the State of Orissa for the
purpose of construction of M.K.C.G. Medical College. In spite of the best efforts, the notifications issued by the State of Orissa could not be
produced. In course of hearing of the appeal, an application under Order 41, Rule 27 C.P.C. was filed to take into consideration the notifications
issued by the State of Orissa as additional evidence. But then the learned appellate court has not considered the said application and proceeded to
decide the appeal. She further submitted that the document, which was sought to be taken as additional evidence, is relevant to decide the real
issue in controversy. In view of the same, the matter may be remitted back to the learned lower appellate court to decide the application for
additional evidence and the appeal on merit. She cited the decision of the apex Court in the case of Jatinder Singh and another v. Mehar
Singh and others, (2009) 17 S.C.C. 465.
Per contra, Ms.Ghose, learned Advocate for respondent supported the judgment.
It is evident from the order no.11 dated 14.9.1999 of the learned lower appellate court in T.A.No.56 of 1998, an application under Order 41,
Rule 27 C.P.C. was filed by the appellant along with photostat copies of the documents, but then the learned trial court did not delve into the same
and proceeded to decide the appeal.
The question does arise as to whether the learned appellate court can decide the appeal without considering the application filed under Section
41 Rule 27 C.P.C.? In Jatinder Singh (supra), an application under Order 41, Rule 27 C.P.C. for acceptance of additional evidence was filed in
the Second Appeal. Though an application under Order 41, Rule 27 C.P.C. was filed for acceptance of additional evidence of the documents, but
the High Court failed to take notice of the said application. The apex Court held that when an application for acceptance of additional evidence
under Order 41, Rule 27 C.P.C. was filed by the appellant, it was the duty of the High court to deal with the same on merits. The judgment of the
High Court was set aside and the matter was remitted back. The same ratio proprio vigore applies to the facts of this appeal.
The next question arises for consideration whether the appellate court can consider the application for additional evidence at any stage of the
appeal ?
The subject matter of dispute is no more res integra. This Court in the case of Sankar Pradhan v. Premananda Pradhan (dead) and
others, 2015 (II) CLR 583 held thus:
In Persotim Thakur v. Lal Mohar Thakur and others, AIR 1931 Privy Council 143, it is held that under Clause (1) (b) of Rule 27 it is
only where the appellate Court ""requires"" it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court
to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical
reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to
adduce fresh evidence, but when on examining the evidence as it stands some inherent lacuna or defect becomes apparent. 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. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons
for so doing (emphasis laid). The same view was taken by this Court in the cases of Banchhanidhi Behera v. Ananta Upadhaya and others,
AIR 1962 Orissa 9 and State Bank of India v. M/s. Ashok Stores and others, 53 (1982) C.L.T.552.
Keeping in view the enunciation of law laid down by the Privy Council in Persotim Thakur (supra), this Court has examined the case. Hearing of
the appeal has not yet commenced. The appellate court is yet to examine the pleadings of the parties and evidence of both oral as well as
documentary to adjudge the requirement of provisions of clause (b). Application for adducing additional evidence can only be considered at the
time of hearing of the appeal. The learned lower appellate court has not exercised its discretionary power in a judicial manner.
(emphasis laid)
In the wake of the aforesaid, the judgment and decree dated 20.9.1999 and 25.9.1999 respectively passed by the learned District Judge,
Ganjam-Gajapati in Title Appeal No.56/98 are set aside. The appeal is allowed. The matter is remitted back to the learned lower appellate court
for de novo hearing. Since the matter is remitted back to the learned appellate court, this Court has not considered the substantial question of law
enumerated in Ground No.(ii). The learned lower appellate court shall decide the appeal in the light of the observations made above.