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HIGH COURT OF KERALA
A. BADHARUDEEN, J
MUHAMMED SHEREEF – Appellant
Versus
KALYANI – Respondent
RSA 139 2021
CPC - Partition - Sections 100, 107, XLI Rule 27 - The court interpreted the provisions of CPC related to the acceptance of additional evidence in appellate proceedings, emphasizing the necessity for compliance and the significance of admitting relevant documents to ensure justice.
Fact of the Case:
This case involved an appeal regarding the partition of two properties. The appellant contended that one of the properties was no longer partible due to a release deed executed by the plaintiff, which was not accepted by the lower courts. Evidence related to the title of the property was not produced during the initial trial.
Issues: The primary issues were whether the appellate court erred in not allowing additional evidence concerning the release of rights to a property and the validity of the title deeds presented by the appellant.
Ratio Decidendi: The court established that under Order XLI Rule 27 of CPC, the appellate court must allow the production of additional evidence if proper reasons are provided. The decision to exclude evidence without consideration of its relevance and necessity undermines the pursuit of justice.
Final Decision: The appeal was allowed, the previous judgments regarding the partition of the property were set aside, and the matters were remanded to the trial court for reconsideration based on the newly admitted evidence.
JUDGMENT
Dated this the 21st day of September, 2023 This appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment in A.S.No.31/2017, dated 18.12.2019 on the files of the Sub Court, Manjeri and also against the judgment and decree, dated 8.1.2010 in O.S.No.44/2007 on the files of the Munsiff Court, Manjeri.
2. Heard the learned counsel for the appellant as well as the learned counsel for the 1st respondent.
3. As per order dated 2.3.2021, my learned predecessor raised the following, as questions of law:
(1) Whether the first appellate court is justified in not invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure to accept the Release Deed No.3251/87 of SRO, Nilambur, being a substantial cause to determine the issue No.(4) as to whether the plaintiff assigned her right over the plaint B schedule item No.1 property?
(2) Whether the first appellate court erred in not accepting the Release Deed No.3251/1987 of the SRO, Nilambur, particularly when the plaintiff had filed I.A.No.890/2010 against the 6th defendant for causing production of Release Deed No.3251/1987 of SRO, Nilambur before the trial court?
4. Originally, the suit was one filed for partition of the B schedule item Nos.1 and 2 properties in the plaint. Item No.1 is property, having an extent of 1 Acre in Re.Sy.No.52/1. Item No.2 is 90 cents of property in Re.Sy.No.64/1.
5. According to the plaintiff, the entire properties are liable to be partitioned. In this case, the 6th defendant, who is the appellant herein, filed written statement raising specific contention to the effect that, B schedule Item No.1 property originally belonged to Manjeri Kovilakam and the same was obtained by one Pukkodan Khalid. Thereafter, Pukkodan Khalid obtained patta in respect of the said property from Land Tribunal. Thereafter, the plaintiff along with defendants 2 and 3, purchased the same, as per sale deed No.76/1983. Later, as per release deed No.3251/1987, plaintiff released her right in Item No.1 in B schedule, in favour of defendant Nos.2 and 3. Later, defendant Nos.2 and 3 sold the same in favour of the 6th defendant, as per sale deed No.2753/2001. Therefore, it was contended that plaint B Item No.1 is the absolute property of the 6th defendant and the same is not partible.
6. Though such a contention was raised before the trial court, the 6th defendant failed to produce the title documents to prove the title in respect of plaint B Item No.1 property and thereby, the trial court passed preliminary decree, dated 8.1.2010 including plaint B Item No.1 property also, holding that the said item also is partible.
7. The 6th defendant/appellant herein filed appeal as A.S.No.31/2017 before the Sub Court, Manjeri and at the appellate stage, the appellant filed I.A.No.1211/2018 under Section 107 of the C.P.C. (deemed to be a petition filed under Section 100 r/w Order XLI Rule 27 of the C.P.C.) along with certified copies of documents viz., 3251/1987 and 2753/2001, with prayer to accept the same. But, the appellate court dismissed the said petition and concurred the finding of the trial court, whereby, plaint B Item No.1 property, where the appellant asserted title as above also was allowed to be partitioned.
8. At the outset, it has to be observed that, on perusal of the documents placed along with I.A.No.1211/2018, the title claimed by the 6th defendant, could be gathered, prima facie. No doubt, the title is one to be proved by the appellant herein by adducing evidence, since by way of amendment carried out in the plaint, the plaintiff specifically denied execution of the above documents.
9. Coming to the question as to what are the parameters to be considered, while producing additional evidence before the appellate court, it is necessary to extract Order XLI Rule 27 of the C.P.C. The same is extracted hereunder:
27. Production of additional evidence in Appellate Court.- (1) The
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