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Petitioner v/s Respondent

    Second Appeal No. 251 of 2020
    Decided On, 21 September 2022
    At, High Court of Andhra Pradesh
    By, THE HONOURABLE MR. JUSTICE SUBBA REDDY SATTI
    For the Petitioner: ------ For the Respondent: ------


Judgment Text
The defendants 2, 4 and 5 are the appellants in the second appeal. The above second appeal is filed aggrieved by the judgment and decree dated 16.03.2020 in A.S.No.9 of 2014 on the file of the Principal District Judge, Chittoor, confirming the judgment and decree dated 12.07.2013 in O.S.No.211 of 2002 on the file of I Additional Junior Civil Judge, Chittoor.

2. For the sake of convenience, the parties to this judgment are referred to as they were arrayed in the suit.

3. Suit O.S.No.211 of 2002 was filed by the plaintiffs seeking permanent injunction restraining the defendants 2 to 5, their men, servants and other followers in any way obstructing the peaceful possession and enjoyment of the plaintiffs in respect of plaint schedule properties including ABCD plaint footpath shown in the plaint rough sketch and restraining the defendants 1 to 7 from making the plaint ABCD portion of footpath as plan marked footpath in F.M.B and in other revenue records.

4. In the plaint, it was contended interalia that father of plaintiffs and plaintiffs divided their family properties on 10.10.1998 by way of registered partition deed; that plaint A schedule properties were allotted to the share of 1st plaintiff; that plaint B schedule properties were allotted to the share of 2nd plaintiff; that the revenue authorities issued pattadar pass books and title deeds; that on northern and eastern side of plaint schedule properties, 1st defendant has got landed properties and the defendants 2 to 5 are having landed properties on the eastern side of plaint schedule properties; that plaintiffs and 1st defendant for their convenience and enjoyment, left 1 feet as footpath on ridge, which is shown as ABCD in the rough sketch for the purpose of reaching their fields; that it is not a plan marked footpath and it is absolutely private footpath; that due to Panchayat elections, dispute arose between the plaintiff and 1st defendant; that 1st defendant in collusion with defendants 2 to 5 is making hectic efforts to influence the 6th defendant to create plan marked footpath in ABCD portion shown in rough sketch; that 2nd plaintiff raised sugarcane crop in plaint B schedule property; that 1st plaintiff ploughed plaint A schedule property in order to raise sugarcane crop; that on 13.03.2002 at about 12 noon, defendants 1 to 5 brought 6th defendant along with Mandal Surveyor to the plaint schedule properties and attempted to create plan marked footpath to the existing footpath of ABCD portion; that the plaintiff thwarted the attempts of defendants; that defendants 2 to 5 attempted to restrain and obstruct the 1st plaintiff from ploughing the plaint A schedule property and eventually, filed the suit for the reliefs stated supra.

5. 1st Defendant filed written statement and contended inter alia that plaintiffs and 1st defendant left 1 feet footpath on the ridge as shown in the rough sketch to reach the lands of plaintiffs and 1st defendant; that it is purely a private footpath meant for use of plaintiffs and 1st defendant and defendants 2 to 5 have no right in it and they never used ABCD footpath. Having supported the case of plaintiffs, 1st defendant prayed the Court to dismiss the suit.

6. 2nd Defendant filed written statement and the same was adopted by defendants 3 to 5. In the written statement, it was contended interalia that lands of defendant are situated in S.Nos.19/1, 19/2B, 19/3, 19/4B, 19/5 in an extent of Ac.1.33 cents on the eastern side of plaintiffs’ land; that 2nd defendant is also having thatched house in the above said lands and also existing sugarcane crop ready for harvesting etc.; that Rastha shown in the rough plan is situated on the western side of road leading from Perumalla Kandriga village to the forest; that from this rastha there is a cart track leading to the land and house of 2nd defendant and passed through S.Nos.21/5, 22 and 21/4 and it is an ancient one and has been in existence from more than 16 years; that 2nd defendant and predecessors interest of 2nd defendant have been using the way; that in the documents of title of 2nd defendant and her predecessors in title, a mention is made about the existence of cart track and right of use of cart track; that 2nd defendant purchased 5 guntas of land from her mother under a registered sale deed dated 03.11.1970 and other 5 guntas were bequeathed by 2nd defendant; that 2nd defendant got remaining 10 guntas of land by way of succession; that 2nd defendant’s father purchased the property from his younger brother P.Gurrappa Naidu under a registered sale deed dated 04.07.1962; the vendor P.Gurrappa Naidu purchased the same under a registered sale deed dated 19.06.1954 from Gangakka and others; that the said Gangakka got title to the property from her husband under a registered sale deed dated 02.09.1949; that 1st plaintiff deliberately omitted to mention the source of title to property; that one Munigangama Naidu applied for Darkastu Patta for plaint schedule land in the year 1940; that villagers objected for the said Darkastu and the then Tahsildar refused to grant patta on the ground that the said land should be used for public purpose; however said Munigangama Naidu got mutated the property in the name of his farm servant Kitchama Naidu alias Bakkaiah Naidu and accordingly patta was granted to Kitchama Naidu in the year 1940 with No.120/4 dated 08.02.1940; that in the patta granted to Kitchama Naidu, it was mentioned that way leading to the said should be uninterrupted and the same was mentioned in condition No.7; that in the said assignment in S.Nos.21/4, 21/5, 22, a way (Bandi Baata) was left for communal purpose and in S.No.21/5 Bandi Baata with a width of 20 links and in S.Nos.21/5 and 22, a way with a width of 15 links was left for the lands going towards east; that lands of defendants is situated towards east of the said land; that defendants’ land in S.Nos.19 and 22 are to be reached through the plaint schedule land; that defendants used to take cattle, tractors for the purpose of cultivation to the said lands, that 2nd defendant and her predecessors in title have been using cart track for more than statutory period and perfected their rights; that defendants represented to M.R.O that the plaintiffs have been making efforts to narrow the cart track by ploughing the portion of the same; that M.R.O along with Mandal Surveyor visited the place and made measurements of cart track and directed the plaintiffs and brother of 2nd defendant to attend the office on 30.03.2002 and prayed to dismiss the suit.

7. 6th Defendant, Mandal Revenue Officer filed separate written statement and the same was adopted by 7th defendant. It was contended that one P.Narayanaswamy Naidu, S/o Chinnabbai Naidu of Perumalla Kandriga village made representation to the Revenue Divisional Officer, Chittoor on 11.02.2002 that cart track passing through S.No.21 etc., was high handedly obstructed by K.Babu Naidu and requested for restoration; that Mandal Surveyor visited the disputed site on S.Nos.21 and 22 on 13.03.2002 and fixed the stones in S.No.21/3 in the presence of petitioner and P.Chandrasekhara Naidu and others and at that point of time, plaintiffs filed the suit for injunction. 6th defendant admitted about issuance of pattadar pass books and title deeds to the plaintiffs. It was further contended that defendants and other local people have to reach their lands by passing through the pathway situated in S.Nos.21/2, 21/3 and 21/4 and 22 and the said pathway is situated since several years and eventually prayed to dismiss the suit.

8. Basing on the above pleadings, the trial Court framed the following issues:

(1) Whether the plaintiffs are in possession and enjoyment of the suit property?

(2) Whether the plaint rough sketch is true and correct?

(3) Whether the plaintiff and 1st defendant left out 1 feet width footpath as ABCD shown in the rough sketch being the property of them?

(4) Whether there is a cart track leading to the land and the house of the 2nd defendant and others passing through the suit survey numbers, which is said to be in existence more than 60 years?

(5) Whether the ABCD portion of footpath shown in the rough sketch is a plan marked footpath?

(6) Whether the plaintiffs are entitled for perpetual injunction as prayed in B prayer?

(7) To what relief?

9. During the trial, 1st plaintiff examined himself as P.W.1 and got examined P.Ws.2 and 3. Exs.A-1 to A-13 were marked. On behalf of defendants, 2nd defendant examined herself as D.W.1 and got examined D.Ws.2 to 4. Exs.B-1 to B-7 were marked.

10. Trial Court on consideration of entire evidence, both oral and documentary, decreed the suit with costs granting permanent injunction against the defendants 1 to 7. Aggrieved by the said judgment and decree, defendants 2, 4 and 5 filed appeal A.S.No.9 of 2014. Pending the appeal, appellants filed I.A.No.394 of 2018 under Order 41 Rule 27 of CPC to adduce additional evidence. It was contended in the affidavit that to substantiate that the suit schedule property is a Government land, assigned to Kichama Naidu and a plan marked cart track and pathway are existing, application was filed to receive the documents i.e. revenue records obtained under Right to Information Act issued by the Tahsildar, Chittoor.

11. Lower appellate Court, being the final fact finding Court framed the following point for consideration:

(1) Whether the petitioners/appellants are entitled to adduce additional evidence?

(2) Whether the plaintiffs before the trial Court have proved that the ABCD rough sketch plaint plan is a private pathway and that they are in possession and enjoyment of the same and that the defendants tried to interfere with the same by creating another pathway in the manner as pleaded?

(3) Whether the judgment and decree of the trial Court is sustainable under law and facts, and whether there are any grounds to interfere with the judgment of the trial Court?

(4) To what relief?

12. Lower appellate Court vide judgment and decree dated 16.03.2020 dismissed the appeal. I.A.No.394 of 2018 filed to receive additional documents was also dismissed. Aggrieved by the same, the present second appeal is filed.

13. This Court admitted the second appeal on 19.01.2022 and framed the following substantial questions of law:

(1) Whether there is justification for the appellate Court to confirm the finding of the trial Court granting permanent injunction on the premise that the burden is on the defendants to prove as to existence of cart track or footpath in the plaint schedule properties?

(2) Whether the appellate Court is justified in dismissing I.A.No.394 of 2018 filed under Order 41 Rule 27 of CPC and that non-consideration of such material vitiated the process of reasoning?

14. Heard Sri S.Lakshminarayana Reddy, learned counsel for appellants and Smt.Sodum Anvesha, learned counsel for 1st respondent and learned Government Pleader for Appeals on behalf of respondents 5 and 6. Though notices against other respondents were served, no vakalat was on their behalf.

15. Learned counsel for appellants would submit that cart track was existing to reach the lands of appellants, however the Courts below failed to consider the said fact. Ex.B-5 DKT Patta issued by the Tahsildar, Chittoor in favour of Kichama Naidu dated 08.02.1940 was not properly considered. He would further submit that plaintiffs did not have any title and exclusive possession over the cart track being used by the appellants. He would also submit that the Courts below wrongly placed the burden on the defendant without considering the order of the Revenue Divisional Officer dated 28.03.2002, whereby the Tahsildar was directed to restore the cart track with a width of 20 links in S.No.21/4 and footpath with 15 links in S.Nos.21/5 and 22. He would also submit that the lower appellate Court ought to have allowed I.A.No.394 of 2018, since the documents filed along with petition to receive the same as additional evidence would go to the root of the matter.

16. Learned counsel for 1st respondent would submit that suit is filed for injunction and the plaintiffs proved possession over the schedule property as on the date of filing of the suit, which is mandatory for grant of injunction. She would submit that the Courts below on proper consideration of evidence on record and held against the appellants. She would submit that since the Courts below recorded the concurrent findings of fact, the interference of this Court may not be called for under Section 100 of CPC.

17. In the appeal appellants filed I.A. to receive the following are the certified copies of documents sought to be filed as additional evidence:

(1) Certified copy of 1-B register extract obtained through mee-seva.

(2) Certified copies of adangals, six in number obtained through from mee-seva.

(3) Certified copy of letter addressed by Tahsildar, Chittoor in Roc.A/335/2015 dated 26.05.2016 to the Station House Officer, BNR Pet Police Station.

(4) Attested copy of letter in Roc.M/1017/2002 dated 28.03.2002 addressed by Revenue Divisional Officer, Chittoor to the Mandal Revenue Officer, Chittoor.

(5) Certified copy of endorsement in Roc.A/1951/12 dated 09.11.2012 issued by Tahsildar, Chittoor.

(6) Certified copy of letter addressed by Tahsildar, Chittoor in Roc.A/335/2015 dated 04.03.2014 to the Station House Officer, BNR Pet Police Station.

(7) Certified copy of letter addressed by Tahsildar, Chittoor in Roc.A/335/2015 dated 11.12.2015 to the Station House Officer, BNR Pet Police Station.

(8) Certified copy of notice in Roc.B/335/2015 dated 21.09.2017 issued by the Tahsildar, Chittoor to M.Neerajakshulu Naidu and M.Chinnabai Naidu.

(9) Certified copy of proceedings issued by the Tahsildar, Chittoor in Roc.A/335/2015 dated 09.10.2017.

18. The lower appellate Court dismissed I.A.No.394 of 2018 filed under Order 41 Rule 27 of CPC, which is extracted below:

“30. It is an application under Order 41 Rule 27 CPC and one cannot be permitted to adduce additional evidence in appeal as a matter of right unless the party is able to bring his case within the purview of Order 41 Rule 27 CPC. In the entire pleadings there is no whisper as to why the appellants were not able to seek to produce these documents before the trial Court. There is no pleading that the appellants were not aware of the knowledge of these documents. There are no pleadings in the present petition that in spite of exercise of due diligence, the appellants were not able to ascertain the availability of the evidence. In-fact, Order 41 Rule 27 CPC contemplates a situation for the parties to adduce additional evidence, if they are able to satisfy that the proposed additional evidence was not within their knowledge, inspite of the best efforts or inspite of exercise of due diligence, the evidence was not within their knowledge or where the appellate Court required any party to adduce additional evidence.

31. Here, it is never the situation that this Court on its suo-moto required the appellants to adduce any additional evidence. Apart-from-this, virtually, the petitioners did not plead the circumstances under which they were not aware of the availability of this evidence and that inspite of exercise of due diligence, they could not be able to ascertain the availability of this evidence. Virtually, there is no pleading in the entire contents of the affidavit enclosed to the petition brining the case of the appellants within the purview of Order 41 Rule 27 CPC. Under the circumstances, the petition in IA.No.394/2018 lacks merits so-as to enable the appellants to seek to adduce additional evidence, as such, it must fail.”

19. While dealing with the application under Order 41 Rule 27 of CPC, the lower appellate Court came to conclusion that there are no pleadings in the present petition that in spite of exercise of due diligence, the appellants were not able to ascertain the availability of the evidence. It also further held that the appellants failed to satisfy that proposed additional evidence was not within their knowledge and they could not secure the same and hence, dismissed the said application.

20. It is pertinent to mention here that suit was filed in the year 2002 by the plaintiffs and the trial Court decreed the suit on 12.07.2013. The documents sought to be filed as additional evidence at serial Nos.4 and 6 to 10 are of the years 2016, 2014, 2015 and 2017 respectively. When the suit itself was decided on 12.07.2013, the finding recorded by the lower appellate Court that the appellants failed to prove that due diligent test and also failed to satisfy the ingredients of Order 41 Rule 27 of CPC, in the opinion of this Court requires consideration. Consideration of the lower appellate Court with regard to I.A.No.394 of 2018, in the considered opinion of this Court is not in accordance with Order 41 Rule 27 of CPC.

21. In general, parties are not entitled to produce additional evidence, oral or documentary at appellate stage, unless (i) trial Court refused to admit evidence which ought to have been admitted; (ii) party could not produce evidence at trial stage in spite of his due diligence; and (iii) when appellate Court requires any document or witness for pronouncement of judgment or any other substantial clause. The appellate Court has to see whether it is able to pronounce judgment on the material before it without taking the additional evidence, is one of the test for admissibility of additional evidence.

22. Suit was filed seeking perpetual injunction. The case of the plaintiffs is that the plaintiffs and 1st defendant left 1 feet for their convenience and it is their exclusive property and that was shown as ABCD portion in the plaint plan which is marked as Ex.A-6. 1st defendant supported the case of the plaintiffs. Defendants 2 to 5 contended that ABCD portion shown in the plaint plan is the way to reach their lands and in fact in the Patta issued to Kichama Naidu, it was shown that the assignee had to leave 20 links as cart track. A perusal of Ex.B-5 DKT patta dated 08.02.1940 would discern the existence of cart track. The vernacular language used is extracted below, which the Courts below failed to consider:

“S.Nos.21/4, 21/5 “LANGUAGE”, S.No.21/5 “LANGUAGE”S.Nos.21/5, 22 “LANGUAGE”

23. In 1940 under Ex.B-5 an extent of Ac.0.29 cents in S.No.21/4, Ac.2.00 cents in S.No.21/5 and Ac.0.27 cents in S.No.22 was assigned in favour of Kichema Naidu. The extent of the property assigned in favourof Kichema Naidu is Ac.2.65 cents in S.Nos.21/4, 21/5 and 22. Munigangama Naidu, grandfather of plaintiffs purchased the property from Kichema Naidu. Plaintiffs traced out their title to the schedule property under Ex.A-3 and A-4. Under Ex.A-3 the extent of property purchased is Ac.1.36 cents. Under Ex.A-4 the property purchased is Ac.1.20 cents. Thus, the total extent is Ac.2.56 cents. Both A and B schedule properties mentioned as per the plaint comes to Ac.2.99 cents.

24. As narrated surpa, plaintiffs stated that they have succeeded to the properties. The majority of the documents in the petition to receive additional evidence are related to Ex.B-5 patta and proceedings relating to the said patta. They have bearing on the suit proceedings. When additional documents were filed in the appeal and those documents are relevant resolve the dispute between the parties, lower appellate Court, being final fact finding Court ought to have received those documents as additional evidence. Lower appellate Court could have allowed the application and received those documents as additional evidence by following the procedure under Order 41 Rules 27 and 28 of CPC to resolve the dispute between the parties.

25. In the normal course of litigation, Courts will decide the issues basing on the pleadings on the date of institution of the suit. However, if pending the litigation new facts surfaced relating to the issue in the interest of justice to resolve the disputes, the Court shall mould the relief. In the instant case suit is filed for injunction simplicitor. The plaint schedule property is correlated to the extent mentioned in Ex B-5. Documents filed by plaintiff also proved the same. Additional documents now filed pending the appeal are proceedings of revenue officials regarding Ex B-5. Thus, those documents, in the considered opinion of the Court, have a definite bearing on issue as to whether the plaintiffs are entitled to injunction or not.

26. In Gaiv Dinshaw Irani Vs. Tehmtan Irani (2014) 8 SCC 294), the Hon’ble Apex Court held thus:

“In ordinary course of litigation, the rights of parties are crystallized on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or on the entire purpose of the suit, the courts taking note of the same should mould the relief accordingly.”

27. The Hon’ble Apex Court in Om Prakash Gupta Vs. Ranbir B. Goyal (2002) 2 SCC 256) held thus:

“11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed or

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iginally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.” 28. Keeping in view of the judgments of the Hon’ble Apex referred supra, the appellate Court must consider whether the plaintiffs are entitled to injunction in view of additional evidence. Since the documents filed in the appeal have bearing to resolve the dispute between the parties, this Court came to conclusion and also the reasoning of lower appellate Court in disposing of I.A.No.394 of 2018 under Order 41 Rule 27 of CPC vitiated the judgment of the lower appellate Court. Thus the judgment under appeal is liable to be set aside. Lower appellate Court should receive the documents as additional evidence and consider those documents in accordance with law, after marking the same. 29. Lower appellate Court also shall frame point for consideration regarding as to whether the plaintiff is entitled to equitable relief of injunction in view the additional documents. Thus the appeal is remanded to the lower appellate Court by setting aside the judgment and to follow the procedure under Order 41 Rule 28 of CPC. 30. Lower Appellate Court shall give opportunity to both the parties regarding the additional documents and decide the appeal on merits. Lower appellate Court also consider that the subsequent events after filing of the suit, in the interests of justice, to resolve the dispute between the parties judiciously. 31. Accordingly, the second appeal is allowed and the judgment and decree dated 16.03.2020 in A.S.No.9 of 2014 on the file of the Principal District Judge, Chittoor is set aside and the matter is remanded to the lower appellate Court with a direction to dispose of the appeal afresh, by receiving the documents as additional evidence to resolve the dispute between the parties in terms of Order 41 Rule 27 and 28 of CPC. The lower appellate Court shall dispose of the appeal uninfluenced by any of the observations made by this Court in this second appeal. No order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.
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