2006 Supreme(SC) 338

2006(3) Supreme 754
SUPREME COURT OF INDIA
(From Gujarat High Court)
B.P. Singh and Arun Kumar, JJ.
The State of Gujarat & Anr.—Appellants
versus
Mahendrakumar Parshottambhai Desai (Dead) by L.Rs.—Respondents
Civil Appeal Nos. 7898-7900 of 2002
Decided on 10-4-2006
Counsel for the Parties :
For the Appellants : Uday U. Lalit, Sr. Advocate, Abhishek Mishra, Ramesh Singh, Hemantika Wahi, Advocates.
For the Respondent : Soli J. Sorabjee, Mukul Rohatgi, Sr. Advocates, Tushar Mehta, Mahesh Agarwal, Nikhil Sakardande, Nakul Dewan, Rishi Agarwal, Mani Krishnan, E.C. Agrawala, Jayant Mohan, Advocates.

IMPORTANT POINTS
1. Order XLI Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in a case.
2. When the findings recorded by the trial Court as well as by the High Court are based on the evidence on record, are reasonable and suffer from no illegality, they do not deserve to be interfered with in exercise of jurisdiction under Article 136 of the Constitution of India.

Headnote:Civil Procedure Code, 1908—Order XLI Rule 27—Bombay Land Revenue Code—Section 37(2)—Appeal—Application filed for leave to lead additional evidence—Maintainability—Respondent claiming to be owner of suit lands, objected to grant of a plot out of lands which were in possession of respondents—Collector ordered an enquiry u/s 37(2) of the Bombay Code in respect of claim of respondents—Assistant Collector reported that the lands in question belonged to Government—On appeal, Tribunal held that the lands in question measuring 53 Vighas 17 Vasas were in ownership and possession of respondents—State of Gujarat filed a suit for declaration that order of the Tribunal was illegal and without jurisdiction—Trial Court as well as the High Court dismissed the suit of the State—In appeal, application filed for leave to lead additional evidence was dismissed—High Court found that Rule 27(1)(b) of Order XLI can be invoked only if the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause—High Court held that appellants had sufficient opportunity to bring the evidence on record, the State did not produce the entire evidence before the trial Court and it was only 8 years after the dismissal of the suit that applications were filed for adducing evidence in the appeal—Whether there was any error in approach of the High Court while dismissing application for amendment—(No)—Whether findings recorded by the trial Court as well as by the High Court deserve to be interfered with—(No)—Constitution of India—Article 136.

       Held : Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.(Para 12)

       The trial court has also considered the evidence exhaustively and recorded a categoric finding that there was no evidence to prove that the records were tampered with. In fact there was no pleading to this effect in the suit. It considered Ext. 385 Hali maji register and found that the witness examined on behalf of the plaintiffs at Ext. 25, himself stated that Ext. 385 was prepared from disposal/settlement register and that if it did not tally with the original, it ought to be duly corrected. Thus, as between the Fesal Patrak and the Haji maji register, the entries in the Fesal Patrak had to be accepted since Hali maji register is prepared on the basis of the Fesal Patrak. Having considered the entire documentary evidence on record, it reached the conclusion that 53 vighas 18 vasas of land bearing Survey Nos. 371 and 372 belonged to the defendants as owners.(Para 19)

       The High Court has also appreciated the entire evidence on record and concurred with the findings recorded by the trial court. The High Court has noticed the evidence of Gulamnabi Rasul Shaikh, Ex. 25, who was examined as a witness on behalf of the appellants/plaintiffs to the effect that prior to the acquisition of lands for Fatehsinh Regiment, the total lands admeasuring 138 vighas 19 vasas was of private ownership. It, therefore, followed that if 85 vighas 1 vasa of lands, which were acquired under three notifications, were excluded from the total extent of the lands, the remaining lands admeasuring 53 vighas 18 vasas, which was never acquired, must belong to the respondents. Gulamnabi Rasul Shaikh, Ex. 25, in his deposition admitted that except the land mentioned in Mark 189 there was no endorsement in respect of any other land that the same had been acquired. He admitted this fact after referring to the original Fesal Patrak of which the appellants had produced certified copy, Ext. 458. The High Court, therefore, concurred with the finding of the trial court and held that it had rightly relied upon the Fesal Patrak and was justified in not placing any reliance on Pahani Patrak Ext. 486; Hali maji Patrak Ext. 489 and Notification dated October 14, 1915 mark 28/3. The High Court also noticed the finding recorded by the Tribunal and affirmed the finding holding that there was no evidence to prove that the entries in the Fesal Patrak has been interpolated, or that any fraud had been committed. It also affirmed the finding of the trial court that Haji maji Patrak, Ext. 489 was prepared on the basis of the Fesal Patrak and that Haji maji Patrak was prepared for the use of the Government as stated by Gulamnabi Rasul Shaikh, witness for the plaintiffs. He had further stated that if there was any mistake in the Fesal Patrak then it is required to be corrected in accordance with law. Any mistake in the Hali maji Patrak is required to be corrected as per Fesal Patrak. Considering these admissions made by the witness for the State, the High Court concluded that no reliance could be placed on the Haji maji Patrak.(Para 21)

       Lands admeasuring 2 vighas 5 vasas were in fact acquired, though the State authorities were remiss in not producing the Notification before the trial court by way of evidence and sought to do so only at the stage of the appeal. We are, on considerations of justice and equity, of the view that the declaration sought for by the appellants should be granted in respect of 2 vighas 5 vasas of land appertaining to Survey Nos. 398/1 and 398/2 only. We accordingly partly decree the suit of the State to this extent only and declare that the State of Gujarat is the owner of the lands so acquired to the extent of 2 vighas 5 vasas only appertaining to new Survey Nos. 398/1 and 398/2.(Para 25)