IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 FAO.No. 141 of 2008() ---------------------------- AS.298/1999 of ADDL.DISTRICT COURT, KOZHIKODE OS.148/1993 of PRL.M.C.KOZHIKODE-I .................... APPELLANTS/RESPONDENTS/PLAINTIFFS : -------------------------------------------------- 1. RADHA PICTURE PALACE, KOZHIKODE, REP. BY ITS MANAGING PARTNER, P.K.MURALI KRISHNAN, AGED 59 YEARS, S/O.LATE KERALA VARMA THAMPURAN, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. 2. P.K.MURALI KRISHNAN, AGED 59 YEARS, S/O.LATE KERALA VARMA THAMPURAN, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. 3. P.K.LALITHA, AGED 52, PARTNER RADHA PICTURE PALACE, D/O.LATE KERALA VARMA THAMPURAN, RESIDING AT MALABAR HOUSE, CHURCH LANDING ROAD, ERNAKULAM, KOCHI - 682 016. BY ADV. MR.T.KRISHNAN UNNI, SENIOR ADVOCATE MR.VINOD RAVINDRANATH RESPONDENTS/APPELLANTS/DEFENDANTS : ----------------------------------------------------- 1. KIZHAKKOTTIL MAMMOO HAJI, S/O.AMMED, 59 YEARS, RESIDING AT KARTHIKAPALLI AMSOM, KARUNGALODI DESOM, VADAKARA TALUK. 2. MUNDIYATT POKKAR HAJI, S/O.KUNJABDULLA, 59 YEARS, VILLIAPPALLI AMSOM, MAYYANNUR DESOM, VADAKARA TALUK. 3. MADATHIL SHAREEFA, D/O.MOIDU, 39 YEARS, -DO- -DO- FAO.No. 141/ 2008 4. NAZREL ISLAM JUMA-ATH PALLI AND MADRASA COMMITTEE, REP. BY ITS PRESIDENT KARANDOTH MOOSA HAJI, S/O.KUNHAMMED KUTTY, AGED 64 YEARS, VILLAPPALLI AMSOM AND DESOM, VADAKARA TALUK. 5. THEKKE EDAYATH AASYA, W/O.MALAYIL MOIDU HAJI, 53 YEARS, VILLAPPALLI AMSOM, MAYYANNUR DESOM, VADAKARA TALUK. 6. DAUGHTER SHABANAS, 30 YEARS, -DO- -DO- 7. BROTHER NIZAR, 28 YEARS, -DO- -DO- 8. SISTER SHAHASSEENA, 24 YEARS, -DO- -DO- ADV. MR.T.SETHUMADHAVAN FOR R1 TO 8 MR.K.JAYESH MOHANKUMAR FOR R1 TO 8 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/03/2009, ALONG WITH FAO NO.142 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : FAO.No. 141 /2008 ORDER ON I.A. NO.2222 OF 2008 IN FAO.No. 141 of 2008 DISMISSED SD/- 4/03/2009 M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A. TO JUDGE pac M.SASIDHARAN NAMBIAR, J. --------------------------------------- F.A.O. Nos.141 & 142 OF 2008 --------------------------------------- Dated this the 4th day of March, 2009 JUDGMENT The plaintiffs in O.S.No.148/1993, who are the defendants in O.S.No.37/1993 on the file of Munsiff Court, Kozhikkode are the appellants. Respondents are the plaintiffs in O.S.No.37/1993 and the defendants in O.S.No.148/1993. O.S.No.148/1993 was filed by the appellants for a permanent prohibitory injunction. O.S.No.37/1993 was originally filed for a permanent prohibitory injunction, which was later amended and converted to a suit for recovery of possession. Though in O.S.No.37/1993 respondents sought a decree for recovery of possession of the portion of the property which lies to the north of the property admittedly in the possession of respondents, before the appellate court claim in respect of the said portion of the property was given up and the subsisting claim is only in respect of the eastern portion of the property, in Survey No.46. Appellants had claimed right and possession of that property, also based on Exts.B1 to B3. Respondents also claimed title to the property based on Exts.A1 and A2, F.A.O.Nos.141 and 142 of 2008 2 sale deeds. Property admittedly belonging to the appellants which lies further to the east and north of the property, admittedly in the possession of the respondents as well as the property in the possession of the respondents obtained under Exts.A1 and A2 originally belonged to Kallingal Tharavad. According to the appellants, their property was outstanding in the possession of Bhavani Rao and as per an assignment deed from Bhavani Rao in 1922, it was obtained by Sait Nagji Purushotham and Company and later, the jenm right was transferred by Kallingal Tharavad in favour of Basha Saheb and Company and from them, the right was obtained by Pootheri Madhavan Nair and his brother Kuttikrishnan Nair, the predecessor-in-interest of the appellants. It is their case that O.S.1499/1944 was instituted by the assignees, for recovery of the possession of the property outstanding in the possession of Sait Nagji Purushotham and Company as lessees and the suit was settled and Ext.B1, compromise decree was passed where under, Sait Nagji Purushotham and Company had agreed not to effect any construction in the property, which lies to the east of the property in the possession of the F.A.O.Nos.141 and 142 of 2008 3 respondents as well as to the north of the property were Aryabhavan was functioning and the plaint schedule property in O.S.No.148/1993 is the said property. At the same time, respondents would contend that the disputed eastern portion of the property does not form part of Exts.B1 to B3 and appellants have no right over any property in Sy.No.46 and under Exts.B1 to B3 appellants have no title to the said property. It is their case that the disputed property, along with the remaining property admittedly in the possession of the respondents, is the property purchased by the respondents under Exts.A1 and A2 sale deeds and subsequent to the institution of the suit, appellants trespassed into the property and respondents are entitled to get a decree for recovery of possession on the strength of title. 2. Learned Munsiff after recording the evidence found that respondents did not produce the anterior title deed and from Exts.A1 and A2, it is not possible to find that they have title to the disputed property. Learned Munsiff also found that on the evidence, case of the respondents that appellants reduced the disputed portion of the property into their F.A.O.Nos.141 and 142 of 2008 4 possession subsequent to the suit, cannot be correct. Though appellants in their written statement in O.S.No.37/1993 has also raised a contention that even if respondents have title to the property, it was lost by adverse possession and limitation, was not considered, finding that as title of the respondents is not established question of adverse possession does not arise for consideration. O.S.No.37/1993 was dismissed and O.S. No.148/1993 was decreed and a permanent prohibitory injunction was granted in favour of the appellants against the respondents. Respondents challenged the judgment before Additional District Court, Kozhikode in A.S.No.297/1999 and A.S.No.298/1999. A.S.No.297/1999 was filed challenging the dismissal of O.S.No.97/1993 and A.S.No.298/1999, challenging the decree granted in O.S.No.148/1993. When the appeal was pending, respondents/appellants before the first appellate court filed I.A.No.3477/2001, an application under Rule 27 of Order XLI of Code of Civil Procedure, to receive 5 documents, which are the anterior title deeds, as additional evidence contending that the documents were misplaced and could not be traced out and when the appeals were pending, they were F.A.O.Nos.141 and 142 of 2008 5 advised to produce the same and on a thorough search, the documents were traced out and the documents are necessary to prove their case as the trial court had found that the anterior title deeds were not produced. Appellants filed an objection denying the reasons shown for receiving the documents as additional evidence. Learned District Judge without passing separate order in I.A.No.3477/2001, received them as additional evidence and remanded the suit to the trial court for fresh disposal. As per judgment dated 01.10.2007, this court set aside the order of remand and remanded the appeals back to the District court for fresh disposal. This court directed the appellate court to dispose of I.A.No.3477/2001 on merit in accordance with law and decide the appeals afresh on merits. 3. After remand, Additional District Judge allowed I.A.No.3477/2001 and once again remanded the suits to the trial court for fresh disposal. These appeals are filed challenging the order of remand. 4. Learned Senior counsel appearing for the appellants and the learned counsel appearing for the respondents were F.A.O.Nos.141 and 142 of 2008 6 heard. Learned senior counsel argued that when this court directed the first appellate court to consider I.A.No.3477/2001 afresh on merit, though learned District Judge was bound to consider the objections filed by the appellants to the said application, District Judge did not consider the objections at all and accepting the affidavit filed by the respondents in support of I.A.No.3477/2001 found that even after exercise of due diligence, respondents could not produce the additional documents along with Exts.A1 and A2 and therefore, there is valid reason to admit the documents as additional evidence. Learned senior counsel also pointed out that the other ground shown in the order is that the property is a valuable property and the documents are necessary to arrive at a correct conclusion. They are neither valid nor sufficient grounds and value of the property is not at all a relevant fact to be considered under Rule 27 of Order XLI of Code of Civil Procedure. Relying of the decision of the Apex Court in K.R.Mohan Reddy Vs. M/s.Network Inc.Rep.Tr.M.D. [AIR 2008 SC 579] and Haryana State Industrial Development Corporation Vs. Cork Manufacturing Co. [(2007) 8 SCC F.A.O.Nos.141 and 142 of 2008 7 120], learned senior counsel argued that when the application is filed to receive the additional documents as evidence invoking clause (aa) of sub rule (1) of Rule 27 of Order XLI of Code of Civil Procedure, sub clause (b) of Rule 27(1) of Order XLI cannot be invoked and in any case sub clause (b) could be invoked only after hearing the appeal on merits and the appellate court finds that for pronouncing a satisfactory judgment, the additional documents are necessary and the judgment of the first appellate court along with order in I.A.No.3477/2001 show that appeals were not heard on merits and therefore, clause (b) of Rule 27(1) of Order XLI of Code of Civil Procedure could not have been invoked by the first appellate court. Learned senior counsel also argued that respondents are not entitled to produce documents before the appellate court so as to fill up the lacuna and in such circumstances, first appellate court should not have allowed the application or received the documents as additional evidence and the order of remand is unsustainable. Learned senior counsel further argued that judgment of the first appellate court establish that the remand was solely due to the F.A.O.Nos.141 and 142 of 2008 8 acceptance of additional evidence and it is not justifiable or legal and therefore, the order of remand is to be set aside. 5. Learned counsel appearing for the respondents pointed out that the trial court dismissed the suit for recovery of possession on the strength of title for the sole reason that respondents did not produce the anterior title deeds and if the anterior title deeds were produced before the court trial court would not have dismissed the suit and when the anterior title deeds establish that respondents have title to the disputed property they are necessary to pronounce a better judgment. Learned counsel also argued that Exts.B1 to B3 relied on by the appellants to claim title to the disputed property establish that they have only right and title to the properties in Sy.No.45 and not in Sy.No.46 which is the disputed property and in such circumstances, additional documents are necessary to effectively resolve the dispute between the parties. Learned counsel also argued that when first appellate court exercised the discretion vested in it under Rule 27 of Order XLI of Code of Civil Procedure for valid reasons, it cannot be a substantial question of law as held by this court in Baby Vs. Sathy [1993 F.A.O.Nos.141 and 142 of 2008 9 (2) KLT 731]. Relying on the decision of the Apex court in Narayanan Vs. Kumaran [2004(2) KLT 312], learned counsel argued that when an appeal against an order of remand is maintainable only on a substantial question of law and the discretion exercised by the first appellate court under Rule 27 of Order XLI of Code of Civil Procedure cannot be a substantial question of law, the appeals are not maintainable and for that sole reason, the appeals are to be dismissed. Learned counsel relying on the decision of the Privy Council in Parsotim Thakur and others Vs. Lal Mohar Thakur and others [AIR 1931 PC 143] and that of the Apex court in Kamala Ranjan Roy Vs. Baijnath Bajoria [AIR 1951 SC 1] and the Constitution Bench decision in K.Venkataramiah Vs. A.Seetharama Reddy and others [AIR 1963 SC 1526] and the latest decision North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das [(2008) 8 SCC 511] argued that when dismissal of the suit on title was for non-production of the anterior title deeds and the anterior title deeds produced before the first appellate court are necessary to effectively decide the question of title, the first appellate court F.A.O.Nos.141 and 142 of 2008 10 and the court found that the documents are necessary for a satisfactory resolution of the dispute and without evidence, the suits cannot be disposed of on merits and received them as additional evidence and remanded the suits back to the trial court, the order of remand may not be interfered with. Learned counsel also argued that when the first appellate court in the order in I.A.No.3477/2001 found case of the respondents that the documents produced along with the applications were misplaced and could be traced out only later is correct, there is no reason to interfere with that finding and in the interest of justice for a proper resolution of the dispute the anterior title deeds are to be considered and the additional documents are to be proved there is no reason to interfere with the order of remand. 6. There is force in the argument of the learned senior counsel that the first appellate court had exercised the power provided under clause (b) of Rule 27(1) of Order XLI of Code of Civil Procedure also the appeal was not considered on merits or entered a specific finding that for pronouncing a satisfactory judgment, the documents produced along with F.A.O.Nos.141 and 142 of 2008 11 I.A.No.3477/2001 are necessary. The order in I.A.No.3477/2001 with the order of remand show that first appellate court found that the additional documents are to be received under clause (aa) of Rule 27(1) of Order XLI of Code of Civil Procedure and remanded the suit on that basis. While considering this aspect, it is to be borne in mind that the appeals were originally remanded by the first appellate court and this court set aside the order of remand with a direction to dispose the appeals afresh, after passing an appropriate order in I.A.No.3477/2001. In such circumstances, even if there is some irregularity in the disposal of appeals without considering the appeal on merits before invoking the power under clause (b) of Rule 27(1) of Order XLI of Code of Civil Procedure, I do not find that it is in the interest of justice to further remand the appeals back to the first appellate court. 7. Rule 27 of Order XLI of Code of Civil Procedure enables a party to adduce additional evidence, oral or documentary before the appellate court. Sub rule (1) of Rule 27 enables a party to adduce such evidence either under clause (a) or (aa) or (b). clause (a) deals with the evidence, F.A.O.Nos.141 and 142 of 2008 12 which was produced before the trial court but was not admitted in evidence by the trial court. Clause (b) deals with evidence which could not be produced before the trial court, in spite of exercise of due diligence. Clause (b) enable a party to adduce additional evidence if the appellate court requires such document to be produced or any witness to be examined to enable it to pronounce a judgment, or for any other substantial cause. Sub rule (2) of Rule 27 mandates that appellate court shall record reasons for admission of additional evidence, if additional evidence is allowed to be produced. Rule 27 of Order XLI reads : “27.Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been F.A.O.Nos.141 and 142 of 2008 13 admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) 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. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason F.A.O.Nos.141 and 142 of 2008 14 for its admission. ” 8. Apex court in K.R.Mohan Reddy's case (supra) considered the exercise of the power provided under clause (b), in an application filed under Rule 27 of Order XLI of Code of Civil Procedure invoking clause (aa). It was held that under clause (aa), additional documents could be permitted to be produced as additional evidence, if inspite of due diligence, the documents could not have been produced before the trial court, but good reason must be shown as to why the evidence was not produced in the trial court. It was further held that when an application is filed under clause (aa) of Rule 27 of Order XLI of Code of Civil Procedure, the question whether the documents are to be allowed to be produced is to be considered only under clause (aa) and clause (b) of Sub Rule (1) of Rule 27 can be exercised by the appellate court only when the entire evidence on record is appreciated and the appellate court comes to a conclusion that for pronouncing a satisfactory judgment, additional evidence is required. The learned senior counsel heavily relied on this observation and argued that when the first appellate court did not consider the F.A.O.Nos.141 and 142 of 2008 15 appeal on merits when I.A.No. 3477/2001 was considered and allowed clause (b) could not have been invoked and therefore to that extent, the order in I.A.No.3477/2001 is not sustainable. That proposition of law cannot be disputed. The power under clause (b) is to be exercised by the appellate court only on hearing the appeal and finding that for pronouncing a satisfactory judgment, the evidence on record alone is not sufficient and the additional evidence sought to be adduced is necessary. The question whether the additional evidence sought to be adduced is required or not, is to be decided only on hearing the appeal and not earlier. 9. The Constitution Bench in K.Venkataramiah's case (supra) had analysed clause (1)(b) of Rule 27 of Order XLI of Code of Civil Procedure, 1908. Approving the Privy Council decision in Parsotim Thakur and others' case (supra) it was held that the defect may be pointed out by a party, and the party is entitled to move the court pointing out the defect though under Rule 27(1) of Order XLI of Code of Civil Procedure, the requirement to produce additional document under clause (b) must be the requirement of the court, upon its F.A.O.Nos.141 and 142 of 2008 16 appreciation of evidence as it stands. It was held that appellate court has the power to allow additional evidence to be adduced not only if it requires such evidence “to enable it to pronounce the judgment” but also for “any other substantial cause” as provided under clause (b). There Lordship held that 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. Such a case will be one for allowing additional evidence “for any other substantial cause” under Rule 27(1)(b) of the Code. 10. Irrespective of the technicalities involved and the defect in the order passed by the first appellate court, on a proper appreciation of the facts of the case, it is absolutely clear that the dispute in the suits relate to the title of the disputed portion of the property in Sy.No.46 which lies to the east of the property admittedly belonging to the respondents F.A.O.Nos.141 and 142 of 2008 17 under Exts.A1 and A2. The dispute is whether the disputed portion, which lies to its east, forms part of the property of the respondents under Exts.A1 and A2 or whether it forms part of the property of the appellants under Exts.B1 to B3. True appellants have also contended that even if title belongs to respondents, that title has been lost by adverse possession and limitation. Learned Munsiff did not consider the claim for title raised by the appellants based on adverse possession and found that as respondents did not establish their title the question of adverse possession does not arise for consideration. The question of title of the respondents to the disputed property set up by the respondents was found against holding that the anterior title deeds were not produced. The documents now received by the first appellate court as per I.A.No.3477/2001 are the anterior title deeds relied on by the respondents. Exts.A1 and A2 show that as per the documents, the property was obtained on lease by Sreenivasa Rao in 1926 and subsequently the lease hold right was transferred to Sait Nagji under document No.1467 of 1936 and as per registered assignment deed 1833/1939, it was transferred to Naggar, the F.A.O.Nos.141 and 142 of 2008 18 minor son and later, when the minor attained majority, he transferred the right as per registered deed 143/1950 and that lease hold right was later assigned under registered document No.1169/1978 which vested with Saidalavi and another and they transferred it in favour of Mohammed by registered documents 2786/1982 and 790/1983. As per registered document No.885/1993 the right was obtained by the predecessor-in-interest of the respondents from whom title is claimed under Exts.A1 and A2 documents. The additional documents received by the first appellate court are the anterior title deeds shown in Exts.A1 and A2 and registered earlier. The first appellate court accepted the case of the respondents that those documents could not be produced earlier, in spite of exercise of due diligence as they were misplaced with other records. I do not find it proper for this court to interfere with the discretion rightly exercised by the first appellate court to reconsider the question, when interest of justice demands that for an adjudication of the title the documents are necessary. The suit by respondents as now stands after amendment is for recovery of possession on the F.A.O.Nos.141 and 142 of 2008 19 strength of title. When title is the question to be established, the title of the assignor of the respondents is also to be proved. Trial court dismissed the suit for the reason that the anterior title deeds were not produced. When those anterior title deeds are now produced and received by the first appellate court and as a result for proper proof of the document the suits were remanded. I find no reason to interfere with the order of remand passed by the first appellate court. The appeals are dismissed. Learned Munsiff is directed to dispose the suit expeditiously. M.SASIDHARAN NAMBIAR JUDGE pac