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Andhra Pradesh High Court
Judges : P.RAMAKRISHNAM RAJU
Afsar Khan - Appellant
Versus
Col.Govindacharyula Narsing Rao, rep., by GPA Govindacharyula Venugopal Rao - Respondent
Decided On : 12-05-96
Held : A reading of this Rule shows that the parties shall not be entitled to produce additional evidence in the Appellate Court, but there are certain exceptions, they being (1) where the lower Court refused to admit evidence which ought to have been admitted; (2) in spite of exercising due diligence such evidence was not within his knowledge or could not be produced by him in the lower Court; (3) Appellate Court requires any document to pronounce judgment; (4) any other substantial causeThe evidence on record clearly establishes that the respondent has title to the property There are no gaps in the evidence of P Ws which throw any doubt or suspicion in the mind of the Court so as to call for additional evidence
additional evidence shall not be received by the appellate court except in exceptional cases, the exercise of the power is not unbridled or unguided The rule itself provides instances where the power can be exercised Apart from specific given circumstances the rule also allows certain amount of discretion to the Court However, such discretion has to be exercised in a judicious way and not arbitrarily and the power cannot be exercised contrary to the principles governing receipt of such evidence In fact in Nath Singh vs Finl Commissioner, Taxation, Puni (2 supra), the Supreme Court has left a note of caution that in case of improper exercise of discretion, the additional evidence brought on record will have to be ignored The true test applied should be whether the trial Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced
( 1 ) THE unsuccessful defendant is the appellant. The respondent-plaintiff filed the suit for declaration of his title and for possession of Plot No. 7 admeasuring 383. 75 sq. yards of vacant site situated in Survey No. AD 51/4 and 51/2 of Bagh Amberpet, University Road within the limits of Municipal Corporation of Hyderabad, and for consequential relief of mandatory injunction to demolish the existing building in the suit site at the cost of the defendant.
( 2 ) THE case of the respondent is that his father Sri Govindacharyula Ramarao purchased the plaint schedule site under a registered sale deed dt. 24-6-1963 from one P. V. P. Vithal Prasad. His father bequeathed the said property to him by his will dated 28-12-1975 which was duly probated in O. P. No. 243 of 1978. The respondent being the executor of the said will is competent to file the suit to safeguard the interest of himself and his brothers. As the appellant-defendant under ostensible plea of purchase from one Ramamohana Rao who has no title to the property seems to have obtained permission for construction of a multi-storeyed structure on the suit site and in pursuance thereof started construction. The respondent was serving in Indian Army and after his release, he was employed in Iraq. The respondent came to Hyderabad for vacation in December, 1983 and noticed the same. Even the sanction for construction of the building was obtained by fraud and by misrepresentation. He issued a notice to the appellant on 30-1-1984, but no reply was received. Meanwhile the illegal construction has reached the level of first floor. Hence the suit.
( 3 ) DENYING the material allegations, the appellant in his written statement contended that neither Mustaq Ali Khan nor Vithal Prasad was the owner of Survey No. 51/1, but the site belongs to Syed Ajam and others. But as seen from document No. 2001/60 dated 20-8-1960 Mustaq Ali Khan has included Survey No. 51/1 in the sale deed, although he has no right or title to survey No. 51/1. Hence the sale is not binding on the appellant. The respondent has nothing to do with the suit site as the appellant has not encroached any land of the respondent,
( 4 ) THE respondent examined three witnesses on his behalf including himself as P. W. I, besides marking Exs. A-1 to A-10. The appellant did not examine any witness nor marked any documents. Exs. X-1 and X-2 were marked through P. W. 3. The trial Court on a consideration of the material placed on record, decreed the suit, with costs.
( 5 ) THE point for consideration is whether the decree and judgment of the trial Court is liable to be interfered with?
( 6 ) POINT: As already stated P. W. I is the plaintiff-respondent. P. W. 2 is the attestor of Ex. A-3 sale deed, dated 24-6-1963 executed by P. V. P. Vithal Prasad in favour of plaintiff s father. Ex. A-4 is the plan attached to the sale deed. P. W. 2 also figured as identifying witness before the Sub-Registrar at the time of registration of Ex. A-3. Further, he also attested another sale deed executed by the same vendor in favour of one Yerramilli Subramaniam marked as Ex. A-5. This sale deed relates to plot No. 9 which is an extent of 498. 33 sq. yards which is abutting the suit plot on the Northern side. A Clerk working in the Office of Town Planner, Circle III, Municipal Corporation of Hyderabad, Barkatpura was examined as P. W. 3. He produced Exs. X-1 and X-2 which are letter from the Director, Town Planning dated 19-4-1963 and the plan respectively. From the evidence of P. Ws. 1 and 2 it is clear that the plaintiff s father G. Ramarao purchased plot No. 7 i. e. , the suit plot under Ex. A-3 sale deed. Ex. A-6 is the certified copy of the sale deed for sale of Plot No. 8 and from the sketch attached to Ex. A-6, it is clear that plot No. 7 which is the suit plot is on the Eastern side of the site under plot No. 8. These documents are proved by P. Ws. 1 and 2. Even in the cross-examination of P. Ws. l and 2 nothing was elici
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