IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 190 of 2010. Reserved on: 23.09.2011. Decided on: 24.10.2011. ______________________________________________ Sakeen Chand. … Appellant. Versus Fateh Singh. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Bhupender Gupta, Senior Advocate with Mr. Ajeet Jaswal, Advocate. For the Respondent : Mr. Ajay Sharma, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.79-K/XIII-2007, dated 8.1.2010. 2. Material facts necessary for adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) filed a civil suit against the appellant/defendant (hereinafter referred to as “the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - defendant” for convenience sake) for possession. According to the plaintiff, the suit land is owned and possessed by him alongwith his brothers and a part of the suit land i.e. Khasra No.175/1 to the extent of 0-00-04 hectares was encroached upon by the defendant during the pendency of civil suit No.206/2000(1999). He had withdrawn the said suit with liberty to file fresh suit on the same cause of action. He took the demarcation of the suit land on 6.6.2003. On demarcation, the suit land to the extent of 0-00-04 hectares was found in possession of defendant. It is in these circumstances, the plaintiff filed the civil suit for a decree of possession directing the defendant to hand over the possession of the encroached portion to him. 3. The suit was contested by the defendant. According to the defendant, the house was constructed by him after taking demarcation. The plaintiff preferred an appeal against the order of demarcation. The appeal was dismissed by the Collector, Dehra. He preferred a revision before the Divisional Commissioner. The same was rejected by him. However, the plaintiff again obtained demarcation and in that demarcation the Kanungo has taken length of diagonals by 14 x 14 metres, which in fact, was 13½ - 13½ metres and due to that some portion of suit land has been shown in possession of defendant and area measuring 0-00-04 hectares is negligible. - 3 - 4. Replication was filed by the plaintiff. The learned trial Court framed the issues on 6.9.2005. The learned Civil Judge (Senior Division), Dehra dismissed the suit on 30.8.2007. The plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. He allowed the same on 8.1.2010. Hence, this regular second appeal against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala, dated 8.1.2010. 5. The regular second appeal was admitted on 15.7.2010 on the following substantial question of law:- “Whether the first appellate Court has committed an error in allowing the application under Order 41 Rule 27 of the Code of Civil Procedure moved by the respondent and mis-appreciated the evidence and ignored the demarcation conducted by the higher Officer, which was upheld upto the level of Division Commissioner?” 6. Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Ajeet Jaswal, Advocate for the defendant has supported the judgment and decree passed by the learned Civil Judge (Senior Division), Dehra, dated 30.8.2007. According to him, the application under Order 41 Rule 27 of the Code of Civil Procedure, preferred by the plaintiff has been wrongly allowed by the learned first appellate Court. He then argued that the learned first appellate Court could not ignore the demarcation report in favour of his client. - 4 - 7. Mr. Ajay Sharma, learned counsel for the plaintiff has supported the judgment and decree passed by the learned first appellate Court, dated 8.1.2010. 8. I have heard learned counsel for the parties at length and gone through the pleadings carefully. 9. Plaintiff has appeared as PW-1. In his affidavit, he has deposed that he is owner in possession of the land bearing Khasra No.175. The adjoining land belongs to the defendant. The defendant in July, 1999 threatened to raise construction over the suit land and collected construction material. He asked the defendant not to raise construction. He filed civil suit before the then learned Sub Judge, Dehra bearing No.206/2000(1999), copy whereof is Ex. P-1. The defendant raised construction during the pendency of the civil suit. He obtained demarcation from the revenue department. The encroachment to the extent of 0-00-04 hectares was found. He has withdrawn the suit with permission to file fresh suit on the same cause of action. Permission was granted by the civil Court. Thereafter, he applied for demarcation qua Khasra No.175. The demarcation was conducted in the presence of defendant and other respectables of the area. The Kanungo had found encroachment to the extent of 0-00-04 hectares of the plaintiff’s land. He has produced tatima Ex.P-5. The demarcation was confirmed by the Tehsildar on 8.7.2003. Defendant has not - 5 - filed any appeal against the same. The demarcation report is Ex.P-4. 10. PW-2, Mehar Chand has supported the version of the plaintiff. He has deposed by way of affidavit that in the year 2003, he was Pradhan of Gram Panchayat, Majheen. The demarcation Ex.P-4 was conducted in his presence. Parties were also present at the time of demarcation. Defendant had raised construction in the month of July, 1999. According to him, the Kanungo has located the encroached portion of the suit land. 11. Defendant has appeared as DW-1. According to the averments contained in the affidavit, Khasra No.176 adjoins the suit land. This Khasra number was owned and possessed by Roshan Lal and Madho Ram. Madho Ram obtained demarcation of Khasra No.176/1 through Naib Tehsildar in the year 1996 and boundaries of Khasra No.176/1 were fixed. Plaintiff filed an appeal before the Collector, Dehra, which was dismissed on 16.12.1998. He purchased the portion of Khasra No.176/1 measuring 0-00-80 hectares from Roshan Lal. He raised construction within the boundaries fixed by Naib Tehsildar, Khundian. The plaintiff also filed revision petition against the order of Collector, Dehra before the Divisional Commissioner, Kangra. He dismissed the same on 28.11.2002. According to him, the demarcation report had become final. According to him, the Field Kanungo has wrongly pointed out the encroachment to the extent of 0-00-04 hectares. However, - 6 - when Assistant Collector 1st Grade, Khundian compared the earlier report of Naib Tehsildar, Khundian with the report of Field Kanungo, he found that there was difference of ½ metre, which was negligible. Shri Parkash Chand Chaudhary, Field Kanungo visited the spot on 6.6.2003. He has denied the suggestion that Khasra No.175/1 was demarcated in his presence. 12. DW-2, Madho Ram has also tendered his affidavit in examination-in-chief. According to him also, Khasra No.176/1 adjoins the suit land. According to him, in 1999, Khasra No.176/1 was demarcated by the Naib Tehsildar. He was appointed Local Commissioner by the Deputy Commissioner, Kangra. He fixed the boundaries of Khasra No.176/1. This report was confirmed by the Assistant Collector 1st Grade. The appeal preferred by plaintiff was dismissed on merits on 16.12.1998. Thereafter the defendant purchased 0-00-80 hectares of land from Roshan Lal out of Khasra No.176/1. The plaintiff also filed a revision before the Divisional Commissioner against the demarcation report. The same was dismissed by him on 28.11.2002. According to him, the suit land is at a higher level vis-à-vis Khasra No.176/1, which is at the lower level. He has also deposed that the defendant has raised construction on Khasra No.176/1 and not on Khasra No.175. 13. The learned Civil Judge (Senior Judge), Dehra dismissed the suit filed by the plaintiff on the ground that the plaintiff has not approached the Court with clean hands. According - 7 - to the learned Civil Judge (Senior Division), the plaintiff has concealed the fact from the Court qua the earlier demarcation which was upheld upto the level of Divisional Commissioner. According to him, the demarcation obtained by the plaintiff was not in accordance with law. The learned Civil Judge returned a finding that the plaintiff has not examined the Filed Kanungo, who has carried out the demarcation Ex.P-4. According to him, the defendant has not encroached upon part of the suit land, i.e. Khasra No.175/1. He also returned a finding that as per tatima Ex.P-5, it cannot be said with certainty that the defendant has encroached upon the suit land. 14. The plaintiff had moved an application under Order 41 Rule 27 of the Code of Civil Procedure for examination of Field Kanungo before the first appellate Court. The application was allowed on 11.8.2009. The Filed Kanungo had appeared as Appellant Witness No.1. He deposed that in the year 2003, he was posted as Field Kanungo. He had demarcated the suit land in presence of the parties. He had fixed permanent points. According to him, the defendant has encroached upon an area measuring 0-00-04 hectares and the encroachment was shown vide Khasra No.175/1 and tatima was also prepared. He also recorded statements of the parties. He also deposed that copy of Musavi was placed in the original file. He has denied the suggestion that he did not demarcate the suit land from Aks - 8 - Musavi. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that the copy of Aks Musavi has not been placed on record. It has come in the statement of Field Kanungo, Parkash Chand Chaudhary that he has undertaken the demarcation on the basis of Aks Musavi and the Musavi was placed in the original file. On the specific suggestion, he has denied that the suit lane was not demarcated as per Aks Tatima. 15. RW-1, Subhash Chand has deposed that the record of case file No.12/96, decided on 20.7.1996 has been destroyed. H.L. Indoria, RW-2 has deposed that he demarcated the land in Khasra No.176/1 while posted as Naib Tehsildar, Khundian and submitted the report Ex.D-1. He has placed on record copy of the same as Ex.RW-2/A. 16. Plaintiff is recorded as one of the co-owners as per copy of jamabandi Ex.P-1. The defendant has not led any evidence in order to rebut the jamabandi Ex.P-1. The demarcation has been carried out by the Field Kanungo, Parkash Chand Chaudhary. He has deposed, as noticed above, that the demarcation has been carried out on the basis of copy of Aks Musavi. He has also deposed that permanent points were also located. It is established from the copy of demarcation report Ex.P-4 (Ex.AW-1/A) read with statement of Mr. Parkash Chand Chaudhary, Field Kanungo that the defendant has encroached upon the suit land. It has come in the statement of DW-2 that - 9 - there is litigation between him and the plaintiff. He is not an independent witness. RW-1, Subhash Chand and RW-2, H.L. Indoria were not present at the time when demarcation was carried out by the Field Kanungo. 17. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the demarcation has already been carried out and the order was upheld upto the level of Divisional Commissioner. 18. Now as far as this demarcation report is concerned, it only pertains to Khasra No.176/1 and not to Khasra No.175/1. Thus the demarcation carried out by the Naib Tehsildar qua Khasra No.176/1 is not relevant to determine whether the defendant has encroached upon Khasra No.175/1 or not. There is no evidence on record to establish that Khasra No.175/1 was ever demarcated by the higher Officer than Field Kanungo. The defendant has not preferred any appeal against the demarcation carried out by the Field Kanungo, namely, Shri Parkash Chand Chaudhary. The application under Order 41 Rule 27 of the Code of Civil Procedure, preferred by the plaintiff has been decided by the first appellate Court strictly in accordance with law. The defendant had the opportunity to cross-examine Mr. Parkash Chand Chaudhary, Field Kanungo, who has been produced as Appellant Witness No.1 by the plaintiff to prove the demarcation report. - 10 - 19. Their Lordships of the Hon’ble Supreme Court in Noth Eastern Railway Administration, Gorakhpur Versus Bhagwan Das (Dead) by LRs., (2008) 8 SCC 511 have held 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”. Their Lordships of the Hon’ble Supreme Court have held as under (paras 13, 14 and 15):- “Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said rule are found to exist. The circumstances under which additional evidence can be adduced are: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, [clause (a) of sub rule (1)], or (ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, [clause (aa), inserted by Act 104 of 1976], or - 11 - (iii) 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 [clause (b) of sub-rule (1)]. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: (AIR p.148) "…Under clause (1) (b) 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’." - 12 - Again in K. Venkataramiah Vs. A. Seetharama Reddy a Constitution Bench of this Court while reiterating the afore-noted observations in Parsotim case pointed out 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 its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.” 20. Accordingly, in view of the observations and discussions made hereinabove, it is held that the first appellate Court has correctly appreciated the documentary as well as oral evidence adduced by the parties. Consequently, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. October 24, 2011. (sck).