Point of Law : If court on it’s application of mind to issues framed by it, finds that a just and proper decision could only be taken with juncture of document proposed to be marked in additional evidence, it is empowered to receive it in additional evidence under Sub-clause (b) of Order XLI Rule 27 (1) CPC.

JUDGMENT :

1. This appeal is originated from a judgment passed on 27.06.2005 by Ist Additional Sub Court, Thiruvananthapuram (for short 'the trial court') in O.S. No.41 of 2000. Appellant is the additional 6th plaintiff, who is the daughter of the original plaintiff.

2. The trial court had dismissed the suit on the basis of a finding arrived at by it which is incorporated in paragraph 13 of the impugned judgment, extracted hereunder:

“13. The learned counsel for the plaintiff has relied on Exts.A1 and A2 to show that the plaintiff had got ownership, title and possession over the property. On the basis of the aforesaid documents, the learned counsel has submitted before court that the entire property belongs to the plaintiff and the same was wrongfully acquired by the officers of the defendant for constructing a road without providing compensation to the plaintiff. According to him, the action of the defendant is arbitrary and illegal. But I do not find any merit in the plea of the plaintiff as he failed to prove his ownership, title and possession of the property. The mutation of property does not confirm title over the same. So also the alleged patta produced by the plaintiff does not confirm title to the property. Here the sole claim of the plaintiff is that he obtained the property by virtue of a partition deed and PWs 1 to 4 spoke to the fact that the said partition deed was in the possession of the plaintiffs and that they failed to produce the same before court and the same can be considered as suppression of best evidence which would warrant an adverse inference regarding the claim made by the deceased first plaintiff and the other additional plaintiffs. At the same time the evidence of DW1 shows that the road was constructed by converting a bund road into a pacca road and the bund is lying through the property of the Government. There is nothing on the records to show that the defendant or his officers had trespassed upon the property of the plaintiff and annexed the entire property for constructing a road after causing damage to the owner. The fact that the plaintiff had not obstructed the construction of the road itself would show that he had no right over the property. His claim is not based on valid grounds. There is no material before court to show that the deceased plaintiff had got property comprised in Sy.No.1857 of Manacaud Village. The fact that another person has also filed a case based on the same Survey number would show that all these suits are filed on experimental basis in order to obtain unlawful gain. In a suit for damage, it is the duty of the plaintiff to prove that he is the title holder and possessor of the property and that the defendant had illegally trespassed upon his property causing damage. But in this case the plaintiff has thoroughly failed to prove the aforesaid aspects. In fact the plaint schedule description is mischievous and incorrect. There is no material before court to show that the defendant had actually trespassed upon the property allegedly possessed by the plaintiff. The adjacent property owners were not produced before court as witnesses to substantiate the plea of the plaintiff. PWs 1 to 4 are relatives and their interested testimony will not help the plaintiff to prove his claim. Since there is no evidence to show that he has got property in Sy.No.1857 of Manacuad Village, the question of obtaining consent for the acquisition of land does not arise at all. So also there is no need of issuing notice to the plaintiff under any of the provisions of law before constructing the road as the plaintiff has got no property near the road. Accordingly I do not find any wilful negligence on the part of the defendant. The suit itself is the result of wrong assumption of fact based on imaginary things and that the plaintiff cannot claim any amount as damage from the defendants. Accordingly these issues are found against the plaintiff.”

3. It is contended by Sri. V. Suresh, the learned counsel