IMPORTANT POINT
The court affirmed the validity of the plaintiff's title through a registered sale deed, rejecting the defendants' claims due to lack of evidence for partition and ownership rights.

JUDGMENT :

(Rakesh Mohan Pandey, J.)

Heard.

This second appeal has been preferred by defendants No.1 to 3 against the judgment and decree passed by the learned Additional District Judge, Janjgir-Champa (C.G.) in Civil Appeal No.166-A/2018 dated 17.05.2019 whereby the appeal preferred by defendants No.1 to 3 under section 96 of the Civil Procedure Code was dismissed and the judgment and decree passed by the learned Civil Judge Class-I, Akaltara, District Janjgir-Champa (C.G.) in Civil Suit No.253-A/2011 dated 22.11.2018 was affirmed.

2. At the very outset, learned counsel appearing for the appellants/defendants No.1 to 3 would submit that the application under Order 41, Rule 27 of the CPC has been moved for taking additional evidence on the record as defendants No.1 to 3 could not produce relevant documents/the order passed by the Sub-Divisional Officer and certain revenue records before the learned Courts below. He would further submit that the documents go to the root of the case and they are necessary for the just decision of the case.

3. On the other hand, learned counsel appearing for the plaintiff would submit that the case is not yet admitted and if the case is dismissed at the admission stage, there is no need to decide the application filed under Order 41, Rule 27 of the CPC. In support of his contention, he has placed reliance on the judgment passed by this Court in the matter of Chandra Bhushan Shukla v. Surmila (dead) through Lr's and another in Second Appeal No.373 of 2008 decided on 24.02.2020 wherein in paras 10 & 11 it was held as under:-

"10. In the matter of Union of India v. Ibrahim Uddin and another, reported in 2012(8) SCC 148, Their Lordships of the Supreme Court have considered the stage, in which the application filed under Order 41, Rule 27 of CPC has to be considered and held as under:-

"49. An application under Order 41, Rule 27 CPC is to be considered at the time of hearing of appeal on merit so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of - additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage, or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial Cause. The true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect become apparent to the court.

52. Thus, from the above, it is crystal clear an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record, to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."

11. Similarly, in Khemchand Mulchand v. Government, of Madhya Pradesh, Bhopal, reported in 1972 MPLJ 524, The Madhya Pradesh High Court has admitting clearly the held that additional the application documents filed for at an appellate stage should be decided only after hearing of the appeal on merits and held as under:

"4. Even though the position that