*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.961 of 2010 % 03-08-2011 # Sajja Malleswara Rao ..Appellant And $ Sajja Nageswara Rao and others ..Respondents !Counsel for the appellant: Sri Nimmagadda Satyanarayana ^Counsel for respondents . : Sri T. Rama Koteswara Rao < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.961 of 2010 JUDGMENT: The respondents 1 and 2 herein filed O.S.No.8 of 1998 in the Court of Senior Civil Judge, Chirala, against the father of the appellant, by name, Somalingam (1st defendant) and respondents 3 to 9, for the relief of partition and separate possession of the suit schedule properties. During the pendency of the suit, the father of the appellant died, and accordingly the appellant was brought on record as defendant No.8. For the sake of convenience, the parties are referred to, as arrayed in the suit. The case of the plaintiffs was that one Sajja Mallaiah had five sons, by name, Somalingam, father of the appellant (8th defendant), Pardhasaradhi, husband of the 4th respondent, Sreenadham, father of the 3rd respondent, Kota Subbarao, father of the 2nd respondent, and Nageswara Rao, the 1st respondent. Mallaiah is said to have died intestate, leaving behind him 3 items of the suit schedule property. The plaintiffs stated that Sajja Nagarjuna, the only son of Pardhasaradhi, relinquished his share through a document dated 24- 10-1977, the properties remained joint, and that in spite of their demands, defendants 1 and 2 did not partition the suit schedule properties. Defendants 3 to 8 came to be added as parties, later on. The 1st defendant, i.e. the father of the appellant herein filed the written-statement, stating that partition among the sons of late Sajja Mallaiah has taken place long back and each party is enjoying his respective share. He further stated that item No.1 of the suit schedule fell to his share and items 2 and 3 fell to the shares of the 1st plaintiff and father of the 2nd plaintiff. He has also stated that the father of the 2nd plaintiff sold his property through a document dated 31-12-1970 in favour of the 8th defendant. The 3rd defendant filed a written-statement, stating that defendants 3 to 8 and Nagarjuna are legal representatives of Pardhasaradhi, entitled for 1/5th share and that defendants 3 to 8 have nothing to do with the relinquishment deed said to have been executed by Nagarjuna on 24-10-1977. The trial Court decreed the suit on finding that there was prior partition of the properties left by late Sajja Mallaiah, and that his sons were enjoying their respective shares. The plaintiffs filed A.S.No.143 of 2005 in the Court of I Additional District Judge, Ongole. The appeal was partly allowed, through judgment dated 31-05-2010 and a preliminary decree is passed, directing that the 1st plaintiff is entitled to 1/5 in items 1 to 3 of the plaint schedule property and the 2nd plaintiff is entitled to 1/35th share in item No.1 only. The shares of the defendants were also mentioned. Hence, this Second Appeal. Sri Nimmagadda Satyanarayana, learned counsel for the appellant submits that the lower Appellate Court committed a patent legal error in taking on record, additional evidence in the form of Exs.A-4 and A-5, a Will, dated 02-09-1991, and deed of relinquishment, dated 24-07-1977, without there being any oral evidence. He contends that the oral and documentary evidence on record clearly establish that there was a prior partition among the sons of Sajja Mallaiah and the suit for partition of the very items of the property is untenable. Learned counsel submits that the application filed by the plaintiffs under Rule 27 of Order 41 C.P.C., was totally untenable, since even according to the lower Appellate Court, they did not make out a case under Clause (a) or (aa) of Order 41, Rule 27 C.P.C. He submits that the lower Appellate Court was not justified in treating the additional evidence as the one, under Clause (b) of the said Rule. Sri T. Rama Koteswara Rao, learned counsel for the respondents, on the other hand, submits that the plea of prior partition raised by the defendants 1 and 2 was not proved and that the trial Court rendered a judgment, which was imperfect in many respects. He contends that though a document filed as an additional evidence must be proved by adducing evidence, such a necessity did not arise in the instant case, since the documents were registered long back. In the suit for partition filed by the plaintiffs, the trial Court framed three issues, viz., 1) Whether the plaintiffs are entitled for partition of the suit schedule properties into four equal shares and to allot two such shares to the plaintiffs and for delivery of possession as prayed for? 2) Whether the father of second plaintiff Sajja Kota Subbarao sell away his share of property on 31-12-70 to Sajja Malleswara Rao, son of first defendant? 3) Whether D3 and her children are entitled to 1/5th share in the suit schedule property as prayed for? On behalf of the plaintiffs, PWs 1 to 4 were examined and Exs.A-1 to A-3 were filed. The documentary evidence was hardly of any use, since it comprised of legal notice issued by them; a reply received thereto, and the genealogy. On behalf of the defendants, DWs 1 and 2 were examined, and Exs.B-1 and B-2, the registration extract of a sale deed executed by Sajja Kota Subbarao in favour of the 8th defendant, and a certificate issued by an Executive Officer of the Gram Panchayat were filed. The suit was dismissed by holding that there was a prior partition. In the appeal, the lower Appellate Court framed the following points for consideration: 1) Whether the defendants proved that there was partition among the sons of Sajja Mallaiah? 2) Whether the plaintiffs are entitled for producing additional evidence in the appeal? In the appeal, the plaintiffs filed I.A.No.100 of 2010 under Rule 27 of Order 41 C.P.C., with a prayer to receive, a Will dated 02-09-1991, and deed of relinquishment dated 24-10-1977. The second point framed by the lower Appellate Court covers the said application. Ultimately, the appeal was allowed and a preliminary decree was passed. The following substantial questions of law arise for consideration in this appeal: a) whether the documents filed as additional evidence in an appeal can be taken as proved by the lower Appellate Court, unless they were spoken to, by any witness; and b) whether the documents filed through an application filed under Rule 27 of Order 41 C.P.C., can be treated as those, required by the Court itself. The parties to the suit represented five branches of family of late Sajja Malaiah. While one of the sons and the daughter of another son pleaded for partition, one son and the legal representatives of other two sons opposed it, may be, in different ways. The trial Court recorded a finding to the effect that there was a prior partition within the family, so much so, the father of the 2nd plaintiff, who had 1/5th share to his property sold away his share through Ex.B-1. However, it needs to be mentioned that the judgment of the trial Court is totally unsatisfactory. All the three issues were discussed together. The three pages of discussion undertaken by it, is full of blanks. It appears that the trial Court intended to extract the relevant portion of the deposition of the concerned witnesses, but it merrily left the blanks unfilled. The judgment does not befit the one, to be rendered by a Court of law. The lower Appellate Court has pointed out the errors committed by the trial Court. It could have simply remanded the matter by giving necessary directions. However, it has taken on record two documents, a Will, and a relinquishment deed, marked as Exs.A-4 and A-5, in exercise of power under clause (b) of Rule 27 of Order 41 C.P.C. The provision reads. “R.27, O.41: 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 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” It is not uncommon that the parties to an appeal filed application with a prayer to receive additional evidence. The receiving of evidence at the stage of appeal is not a matter of course. Indiscriminate permission accorded, for filing of additional evidence at the appellate stage would lead to a situation, where the defects or lacunae pointed out by the trial Court in the evidence of one of the parties, can be filled by availing the opportunity. That is why, the Parliament restricted the circumstances under which, additional evidence can be received at the stage of appeal. Rule 27 of Order 41 C.P.C. mandates that the additional evidence can be received only a) when the trial Court refused to receive the evidence, which otherwise was admissible, or, b) where, in spite of its due diligence, the concerned party was precluded from placing such evidence before the trial Court. A specific finding must be recorded on these aspects, and it is only then, that permission can be accorded to adduce additional evidence. Even where permission is accorded, one of the two courses must be adopted by the lower Appellate Court: The first is that the additional evidence must be subjected to the same tests, as is done in the course of a trial. The second is that it must remand the matter to the trial Court, for the limited purpose of recording the evidence, and arriving at a finding thereon. In the instant case, the lower Appellate Court recorded a finding to the effect that the application made by the plaintiffs does not fit into Clauses (a) and (aa) of Order 41, Rule 27 C.P.C. Still, it has received evidence and straightaway proceeded as though the said two documents were proved. Not a single witness was examined, with reference to those two documents. Hence, the first substantial question of law is answered against the plaintiffs, and in favour of the appellant. The second substantial question of law arises in view of the fact that the lower Appellate Court received the additional evidence by invoking Clause (b). The said provision gets attracted only when the lower Appellate Court feels, ‘on its own accord’, that any document is required to be produced or any witness is to be examined. Nowhere in its judgment, the lower Appellate Court expressed the view that it needs any additional evidence, over and above what is there already on record. It has just chosen to treat the documents, which are sought to be marked as additional evidence, as those required by the Court itself. Such a course is totally impermissible in law and the lower Appellate Court committed an error in this regard. Therefore, the answer to the second question emerges in the negative. But for the fact that the judgment rendered by the lower Appellate Court was also defective, this Court would have simply allowed the Second Appeal and left the matter at that. Since the judgment rendered by the trial Court is equally defective, the only alternative is to set aside the judgments rendered by both the Courts and to remand the matter to the trial Court for fresh consideration and disposal. Accordingly, the Second Appeal is allowed, and the matter is remanded to the trial Court for fresh consideration and disposal, after giving opportunity to both the parties. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.03-08-2011. Note: L.R copy to be marked. (B/O) KO