1 [ENTITY] HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR SB:- Hon'ble Shri Justice [ENTITY] [ENTITY] [ENTITY] and Another vs. Smt. [ENTITY] (Dead) through LRs & Others Shri [ENTITY], counsel for appellants. Shri [ENTITY], counsel for respondent No.2. Shri [ENTITY], counsel for respondent No.4- Municipal Corporation. None for the remaining respondents. JUDGMENT
(Delivered on 23/11/2017) This First Appeal under [SECTION] of [ACT], has been filed against the judgment and decree dated 19-3-2011 passed by 8th Additional District Judge, Gwalior in [CASE NUMBER] by which the suit filed by the appellants for declaration of title and permanent injunction has been dismissed.
(2) The necessary facts for the disposal of the present appeal in short are that the appellants filed a civil suit against the respondents on the ground that the plaintiffs are the owner and in possession of a house situated at Farashkhana Ghosipura, Jiwajiganj, Lashkar, Gwalior (Disputed House). The total area of the disputed house is 4582 sq. ft. On some part of the land, the house is constructed and the remaining land is open land, however, the entire land is covered by boundary wall. In the month of January 1983, the appellants had purchased the said property from the respondent no.1 for a consideration of Rs.1,50,000/- and the vacant possession of the same was handed over to the appellants and from thereafter, the appellants are residing in the said property along with their family members. It was further pleaded that in the month of January 1983, the respondent no.1 had sold the said property after receiving the entire consideration amount of Rs.1,50,000/- and had handed over the possession and it was agreed that after obtaining ceiling permission and performing other necessary legal requirements, a sale deed would be executed. However, it was pleaded that in fact the respondent no.1 had already sold the house after receiving the full consideration amount. Thereafter, the respondent no.1 shifted to Kanpur and started living along with her daughter and son-in-law. That on 7-2-1990, the appellants contacted the respondent no.1 to execute the sale deed and the respondent no.1 came to Gwalior and once again assured the appellants, that they should not worry about the sale deed and since they are already in possession of the disputed property, therefore, the sale deed would be executed very soon. Thereafter on 16-2-1990, the respondent no.1 executed a power of attorney and accordingly on 16-2-1990 itself, an agreement to sell was executed by respondent No.3 on the strength of power of attorney in favour of the appellants. The appellants, thereafter remained in constant touch with the respondents and since, the case pending in the Municipal Corporation was not decided therefore, the sale deed could not be executed and time was extended. The respondent no.3, thereafter on the basis of power of attorney granted a last opportunity of 3 years to get the sale deed executed and since, the time was expiring on 15-12-1998, therefore, the appellants contacted the respondent no. 3 and insisted that the sale deed may be executed, therefore, the respondent no.3, with the permission of the respondent no.1, executed a sale deed in respect of the disputed property on 1-12-1998. After the execution of the sale deed, the appellants filed an application for mutation of their names in the Municipal record which was objected by the respondent no.2 and it was claimed that he is the owner of the disputed property on the ground that he has already purchased the disputed property from the respondent no.1 by registered sale deed dated 6-7-1998. When the appellants enquired from the office of Sub-Registrar, then they came to know that the respondent no. 1 has sold a part of the disputed property i.e., 1885 sq. ft. by sale deed dated 6-7-1998 and the said sale deed is void as the respondent no.1 was already aware of the fact that she has already sold the disputed property in the month of January 1983 after receiving the full consideration amount of Rs.1,50,000/- and had also handed over the vacant possession of the property in dispute. Thus, the suit was filed for declaration of title and permanent injunction.
(3) The respondents no. 1 and 2 did not appear before the Trial Court and they were proceeded ex parte. (4) The respondent no. 3 filed his written statement and admitted the claim of the appellants.
(5) The Trial Court after recording evidence of the appellants, dismissed the suit, on the ground that the plaintiffs have failed to prove that any consideration amount was paid to the respondent no.1 as well as the power of attorney is alleged to have been executed on 16-2-1990 and the agreement to sell was also executed on 16-2-1990. Although the power of attorney bears the signatures of the respondent no. 1, but the agreement to sell does not contain her signatures. When the respondent no.1 can execute the power of attorney on 16-2-1990, then why she did not execute the agreement to sell on 16-2-1990, also creates doubt with regard to the genuineness of the documents. Even otherwise, there is no mention in the agreement to sell that the disputed property was already sold in the year 1983. (6) Challenging the findings given by the Trial Court, it is submitted by the Counsel for the appellants, that the respondent no.1 had already sold the disputed property to them by oral sale deed after receiving the sale consideration. An application has also been filed under [SECTION] of [ACT] ([CASE NUMBER]) along with an agreement to show that the respondent no.1 had already received the entire consideration amount of Rs. 1,50,000/-. (7) Before proceeding further, it would be appropriate to consider the [CASE NUMBER], which is an application under [SECTION] of [ACT] It is mentioned in the application, that since, the document dated 6-3-2002 remained in the record and was misplaced, therefore, this document could not be filed during pendency of this appeal and when the appeal came up for hearing and the appellants had discussion with their counsel, then it came to their knowledge that the consent letter dated 6-3-2002 has not been placed on record, therefore, the application is being filed for taking additional evidence on record. A consent letter dated 6-3-2002 has also been filed along with the application. By filing the consent letter dated 06/03/2002, the appellants want to submit that the respondent No.1 had accepted that the consideration amount has been received. (8) The Supreme Court in the case of [PRECEDENT] has held as under :-
36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, [SECTION] [ACT] enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].)
37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal.
Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide [PRECEDENT]])
38. Under [SECTION] [ACT], the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. ([PRECEDENT].)
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. ([PRECEDENT] and [PRECEDENT].)
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause"
must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.
42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2 . It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.
43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. ([PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT])
45. In [PRECEDENT], while dealing with the issue, a three-Judge Bench of this Court held as under: (SCC p. 20, para 28) "28. We are of the 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 substantial 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 added) A similar view has been reiterated by this Court in [PRECEDENT].
46. A Constitution Bench of this Court in [PRECEDENT], while dealing with the same issue held: (AIR p. 1529, para 13) "13. It is very much to be desired that the courts of appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."
(emphasis added) In the said case, the Court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact situation, the order allowing such application did not vitiate for want of reasons.
47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. (9) If the application filed under [SECTION] of [ACT] is considered, then it would be clear that the appellants have not made out a case satisfying all the requirements of [SECTION] of [ACT] Furthermore, the document on which the appellants want to place reliance was executed during the pendency of this appeal. This Court is of the considered opinion that the document filed along with application under [SECTION] of [ACT] is not necessary for the just decision of the appeal. Accordingly, [CASE NUMBER], which is an application under [SECTION] of [ACT] is hereby rejected.
(10) So far as the merits of the case are concerned, a peculiar fact of the case is that the respondent no.1 and respondent no.3 are the real brother and sister, whereas the appellants are the real sons of respondent no.3. It is the case of the appellant that in the month of January 1983, after receiving an amount of Rs. 1,50,000/-, the respondent no. 1 had sold the disputed property to the appellants. Undisputedly, no sale deed was executed in favour of the appellants in the year 1983. There is no evidence to the effect that any consideration amount was paid to the respondent no.1 in the year 1983. It is the case of the appellants that on 16-2-1990, the respondent no.1 had executed a power of attorney, Ex.P.2 in favour of the respondent no.3 and on the very same day, the respondent no.3 executed an agreement to sell in favour of appellants, Ex.P.3 i.e., the father executed an agreement to sell in favour of his sons. If the respondent no.1 can execute a power of attorney on 16-2-1990, Ex. P.2, then no body had prevented her to execute an agreement to sell in favour of the appellants as the said document was also executed on 16-2- 1990, Ex. P.3. Further more, the sale deed was executed by the father (respondent no.3) in favour of his sons (appellants) on 1-12-1998 Ex. P.4 i.e., after the sale deed was executed by respondent no.1 in favour of respondent no.2. When the appellants had already paid the entire consideration amount, then why they waited till 1-12-1998 for execution of the sale deed. The power of attorney was executed on 16-2-1990 and according to the appellants that the entire consideration amount was already paid to the respondent, then what prevented the appellants for getting the sale deed executed on 16-2-1990 itself, and why an agreement to sell was executed? Further in sale deed dated 2-12-1998, Ex. P.4, it is mentioned that the respondent no. 1 has sold the disputed property on 16-2-1990, and it is not mentioned that the disputed property was already sold in the month of January 1983.
(11) [SECTION] of Transfer of Property reads as under :
54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property. (12) Thus, it is clear that if the value of the property is more than Rs.100/-, then the sale can be made only by a registered instrument. Thus, the contention of the appellants that the respondent no.1 had sold the disputed property by oral sale in the year 1983, cannot be accepted. (13) In the present case, the agreement to sell dated 16- 2-1990 Ex.P.3 and sale deed dated 1-12-1998 Ex.P.4 were executed by a father in favour of his sons, on the strength of a power of attorney, allegedly executed by respondent no.1 in favour of respondent no.3. The appellants claim to have purchased the disputed property in the year 1983, but still they waited for 15 long years to get a sale deed executed, which itself creates doubt because when the appellants had already paid the entire consideration amount to the respondent no.1, then no one had prevented them from getting the sale deed executed. It appears that after a sale deed was executed by the respondent no.1 in favour of respondent no.2, the appellants started claiming their title.
(14) Considering the totality of facts and circumstances of the case, this Court is of the considered opinion, that the plaintiffs/appellants have failed to prove their case. Accordingly, the Trial Court did not commit any mistake in dismissing the suit of the appellants. (15) Hence, the judgment and decree dated 19-3-2011 passed by 8th Additional District Judge, Gwalior in [CASE NUMBER] is hereby affirmed.
(16) The Appeal fails and is hereby dismissed. (17) No orders as to costs. Decree be drawn accordingly.
([ENTITY]) Judge *MKB* [ENTITY] 2017.11.30 15:47:50 +05'30'