Supreme Court of India
UNION OF INDIAversusIBRAHIM UDDIN & ANR.
- Citation
- 2012 INSC 288
- Decided
- 17 July 2012
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
The Supreme Court held that the plaintiff bore the burden of proving title, the Will could not be admitted as additional evidence, no adverse inference could be drawn, and the suit was barred under Section 34 of the Specific Relief Act, thereby restoring the trial court decree.
Summary
The plaintiff filed a suit seeking a declaration of title over agricultural land, alleging ancestral grant from the Maratha Government and a partition in 1819, while the Union of India contested the title. The trial court dismissed the suit, but the first appellate court reversed the decision by admitting a Will as additional evidence under Order XLI Rule 27 and shifting the burden of proof onto the Union of India, a view affirmed by the High Court. The Supreme Court held that the burden of proof remained on the plaintiff, the Will could not be admitted because it was not pleaded and not proved under Section 68 of the Evidence Act, and no adverse inference could be drawn under Section 114(g) of the Evidence Act. It also ruled that a suit for declaration of title without possession is barred by the proviso to Section 34 of the Specific Relief Act. Consequently, the judgments of the first and second appellate courts were set aside and the trial court decree restored.
Issues considered
- The burden of proof in a title suit and whether it could be shifted to the Union of India.
- The admissibility of a Will as additional evidence under Order XLI Rule 27 at the appellate stage without pleading.
- The effect of non‑production of documents on drawing adverse inference under Section 114(g) of the Evidence Act.
- The legal consequence of a declaration suit filed without seeking possession under Section 34 of the Specific Relief Act.
- The correctness of the High Court's framing and non‑answering of substantial questions of law under Section 100 CPC.
- The admissibility of certified copies of the General Land Register under Sections 65 and 74 of the Evidence Act.
Legislation cited
- Code of Civil Procedure, 1908s. Order XI, s. Order XII, s. Order XLI Rule 27, s. Section 100
- Indian Evidence Act, 1872s. Section 114(g), s. Section 58, s. Section 65, s. Section 68, s. Section 74, s. Section 90
- Specific Relief Act, 1963s. Section 34
Subjects
title suitburden of proofadditional evidenceOrder XLI Rule 27admissionadverse inferenceSpecific Relief ActSection 34second appealsubstantial question of lawCPCEvidence Act
Judgment
[2012] 8 S.C.R. 35
UNION OF INDIA A
v.
IBRAHIM UDDIN & ANR.
(Civil Appeal No. 1374 of 2008)
JULY 17, 2012
B
[DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]
Code of Civil Procedure, 1908:
Title suit - Burden of proof - Suit for declaration of title C
of ownership of property against Union of India - Suit
dismissed by trial court - Order set aside by District Judge
in first appeal on the finding that the defendant-Union of India
failed to prove its title over the suit land - Second appeal
dismissed by High Court - Held: The first appellate court as D
well as the High Court committed grave error in shifting the
burden of proof on the defendant-Union of India, though it was
exclusively on the plaintiff-respondent no. 1 to prove his case,
which the plaintiff-respondent no. 1 failed to do - The
documents produced by the Union of India were not properly
appreciated by the first appellate court and the High Court - E
The appellate courts decided the appeals in unwarranted
manner in complete derogation of the statutory requirements
and in flagrant violation of the provisions of CPC and the
Evidence Act - Decree of the trial court restored.
F
Order XII - Admission - Evidentiary value of - Held:
Admission made by a party though not conclusive, is a
decisive factor in a case unless the other party successfully
withdraws the same or proves it to be erroneous - Even if the
admission is not conclusive it may operate as an estoppel - G
Failure of a party to prove its defence does not amount to
admission, nor it can reverse or discharge the burden of proof
of the plaintiff.
35 H
36 SUPREME COURT REPORTS [2012) 8 S.C.R.
A Order XL/, Rule 27 - Additional evidence at the appellate
stage - Admissibility of - Recording of reasons, if required -
Held: The matter is entirely within the discretion of the
appellate court- The discretion is to be exercised by the court
judicially taking into consideration the relevance of the
B documents/evidence in respect of the issues involved in the
case and the circumstances under which such an evidence
could not be led in the court below and as to whether the
applicant had prosecuted his case before the court below
diligently and as to whether such evidence is required to
C pronounce the judgment by the appellate court - In absence
of satisfactory reasons for non-production of the evidence in
the trial court, additional evidence should not be admitted in
appeal - Whenever the appellate Court admits additional
evidence it should record its reasons for doing so - The
omission to record the reasons must be treated as a serious
D
defect - But this provision is only directory and not mandatory,
if reception of such evidence can be justified under the rule.
Order XL/, Rule 27 - Application for production of
additional evidence in appellate court - Stage of
E consideration - Held: Application under Order XL/ Rule 27
CPC is to be considered at the time of hearing of appeal on
merits so as to find whether the documents and/or the
evidence sought to be adduced have any relevance/bearing
on the issues involved - Such an application, even if filed
F during the pendency of the appeal, is to be heard at the time
of final hearing of the appeal - In case, such application 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
G to be taken on record to pronounce the judgment or not,
remains inconsequential/ inexecutable and is liable to be
ignored.
s.100 - Interference in second appeal - Scope -
Substantial question of law - Held: Generally, a Second
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 37
Appeal does not lie on question of facts or of law - However, A
there may be exceptional circumstances where the High Court
is compelled to interfere, notwithstanding the limitation
imposed by the wording of s.100 CPC - In second appeal,
the court frames the substantial question of law at the time of
admission of the appeal and is required to answer all the said B
questions unless the appeal is finally decided on one or two
of those questions or the court comes to the conclusion that
the question(s) framed could not be the substantial
question(s) of law - There is no prohibition in law to frame the
additional substantial question of law if the need so arises at c
the time of the final hearing of the appeal.
Specific Relief Act, 1963 - s.34 - Suit seeking relief of
declaration of title without seeking consequential relief -
Maintainability - Held: Not maintainable - Suit barred by the
proviso to s. 34 of the Act as the plaintiff was not in possession D
and yet he did not ask for restoration of possession or any
other consequential relief.
Evidence Act, 1872 - s. 114(g) - Presumption under -
When Court may draw adverse inference u/s. 114(g) - E
Relevant factors to be taken into consideration - Held: The
issue of drawing adverse inference is required to be decided
by the court taking into consideration the pleadings of the
parties and by deciding whether any document/evidence,
withheld, has any relevance at all or omission of its production F
would directly establish the case of the other side - The court
has to consider further as to whether the other side could file
interrogatories or apply for inspection and production of the
documents etc. under Order XI CPC - In case one party has
asked the court to direct the other side to produce the G
document and other side failed to comply with the court's
order, the court may be justified in drawing the adverse
inference - All the pros and cons must be examined before
the adverse inference is drawn - Code of Civil Procedure,
1908 - Order XI.
H
38 SUPREME COURT REPORTS f2012] 8 S.C.R.
A Respondent no.1 filed Original Suit in the Court of
Civil Judge, Agra on 25.7.1995, seeking a decree for
declaration that he was the owner of the suit property/
land, making averments that the suit land originally had
been with the Maratha Government (Scindia-Gwalior);
B that the ancestors of the plaintiff having close association
with the Maratha Government, were made a grant in
respect of the suit land in the year 1800 and later, the
land was partitioned between the ancestors of the
plaintiff in the year 1819; that subsequently, the plaintiff/
c respondent no.1 being the only heir (descendant)
became the absolute owner of the land; that the suit land
was given on rent to the State authorities in Agra by
executing a rent note for a sum of Rs.22/- per month and
that since the Union of India claimed title over the suit
land illegally and in an unauthorised manner on 22.2.1993
D
and afterwards, the cause of action arose to approach the
court. The trial court dismissed the suit.
Aggrieved, respondent no.1 preferred first appeal
before the District Judge, Agra. During pendency of the
E appeal, he preferred an application under Order XLI Rule
27 of CPC for adducing additional evidence, i.e., Will
executed by his maternal grandfather dated 1.3.1929 in
his favour bequeathing the suit property. The first
appellate court allowed the said application and
F thereafter also allowed the first appeal. The judgment of
the first appellate court was upheld in second appeal by
the High Court.
In the instant appeal, the appellants submitted that
there was no documentary evidence or trustworthy oral
G evidence that the suit property had been given to the fore-
fathers of the plaintiff/respondent no.1 by the Maratha
Government in the year 1800 or that there was partition
among the fore-fathers of plaintiff/respondent no.1 in the
year 1819; that the first appellate Court had no occasion
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 39
to decide the application under Order XLI Rule 27 CPC A
prior to the hearing of the appeal itself; that more so, as
there was no reference to the Will in the plaint or First
Appeal, it could not be taken on record for want of
pleadings in this respect; that taking the Will on record
did not mean that either the Will or its contents stood B
proved; that none had proved the said Will and thus, it
could not be relied upon and if the Will was ignored, there
was no evidence on record to prove the case of the
plaintiff/respondent no.1; that the High Court had framed
4 substantial questions of law at the time of admission c
of the appeal and 2 additional substantial questions at a
later stage but did not answer either of them nor recorded
any finding that none of them was, in fact, a substantial
question of law; and that merely because the Union of
India did not produce the revenue record before the trial D
Court, the first appellate Court could not have drawn
adverse inference under Section 114(g) of the Evidence
Act, 1872.
Allowing the appeal, the Court
E
HELD:
Presumption under Section 114(gl of the Evidence Act :
1.1. Generally, it is the duty of the party to lead the
best evidence in his possession, which could throw light F
on the issue in controversy and in case such material
evidence is withheld, the Court may draw adverse
inference under Section 114(g) of the Evidence Act
notwithstanding, that the onus of proof did not lie on
such party and it was not called upon to produce the G
said evidence. [Para 6] [61-E-F]
1.2. The issue of drawing adverse inference is
required to be decided by the court taking into
consideration the pleadings of the parties and by H
40 SUPREME COURT REPORTS [2012] 8 S.C.R.
A deciding whether any document/evidence, withheld, has
any relevance at all or omission of its production would
directly establish the case of the other side. The court
cannot loose sight of the fact that burden of proof is on
the party which makes a factual averment. The court has
B to consider further as to whether the other side could file
interrogatories or apply for inspection and production of
the documents etc. as is required under Order XI CPC.
Conduct and diligence of the other party is also of
paramount importance. Presumption or adverse
c inference for non-production of evidence is always
optional and a relevant factor to be considered in the
background of facts involved in the case. Existence of
some other circumstances may justify non-production of
such documents on some reasonable grounds. In case
0 one party has asked the court to direct the other side to
produce the document and other side failed to comply
with the court's order, the court may be justified in
drawing the adverse inference. All the pros and cons
must be examined before the adverse inference is drawn.
E Such presumption is permissible, if other larger evidence
is shown to the contrary. [Para 16] [66-A-E]
1.3. In the instant case, the plaintiff/respondent no.1
did not submit any interrogatory statement or an
application for making inspection or for production of the
F document as provided under Order XI CPC. In such a fact-
situation, it was not permissible for the first appellate
Court or the High Court to draw any adverse inference
against the appellant/defendant no.1. [Para 17] [66-F-H]
G Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba
Reddy & Ors. AIR 2003 SC 3342; Mohinder Kaur v. Kusam
Anand (2000) 4 SCC 214: 2000 (2) SCR 594; Takhaji Hiraji
v. Thakore Kubersing Chamansing & Ors. AIR 2001 SC
2328; Municipal Corporation, Faridabad v. Siri Niwas AIR
H 2004 SC 4681: 2004 (4) Suppl. SCR 145; Mahant Shri
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 41
Srinivas Ramanuj Das v. Surjanarayan Das & Anr. AIR 1967 A
SC 256: 1966 SCR 436; Ramrati Kuer v. Dwarika Prasad
Singh & Ors. AIR 1967 SC 1134: 1967 SCR 153; Ravi
Yashwant Bhoir v. District Collector, Raigad & Ors. AIR 2012
SC 1339: Smt. Indira Kaur & Ors. v. Shri Sheo Lal Kapoor
AIR 1988 SC 1074; Mahendra L. Jain & Ors. v. Indore B
Development Authority & Ors. (2005) 1 SCC 639: 2004 (6 )
Suppl. SCR 242; Manager, R.B.I., Bangalore v. S. Mani &
Ors. AIR 2005 SC 2179: 2005 (2) SCR 797; A. Jayachandra
v. Aneel Kaur AIR 2005 SC 534: 2004 (6) Suppl. SCR 599;
R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC c
355: 2005 (4) Suppl. SCR 1010 and Pratap Singh & Anr. v.
State of M.P. AIR 2006 SC 514: 2005 (5) Suppl. SCR 439 -
relied on.
Mt. Bi/as Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96;
Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi D
AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors. AIR 1953
SC 225: 1953 SCR 758; A. Raghavamma & Anr. v.
A.Chenchamma & Anr. AIR 1964 SC 136: 1964 SCR 933;
The Union of India v. Mahadeolal Prabhu Dayal AIR 1965
SC 1755: 1965 SCR 145; Gopal Krishnaji Ketkar v. E
Mohamed Haji Latif & Ors. AIR 1968 SC 1413: 1968 SCR
862; Mis. Bharat Heavy Electrical Ud. v. State of U.P. & Ors.
AIR 2003 SC 3024: 2003 (1) Suppl. SCR 625; Musauddin
Ahmed v. State of Assam AIR 2010 SC 3813 and Khatri
Hotels Pvt. Ltd. & Anr. v. Union of India & Anr. (2011) 9 SCC F
126 - referred to.
Admissions:
2.1. Order XII CPC deals with admission of the case,
admission of the documents and judgment on G
admissions. Admission made by a party though not
conclusive, is a decisive factor in a case unless the other
party successfully withdraws the same or proves it to be
erroneous. Even if the admission is not conclusive it may
H
42 SUPREME COURT REPORTS [2012] 8 S.C.R.
A operate as an estoppel. Law requires that an opportunity
be given to the person who has made admission under
cross-examination to tender his explanation and clarify
the point on the question of admission. Failure of a party
to prove its defence does not amount to admission, nor
B it can reverse or discharge the burden of proof of the
plaintiff. [Paras 19, 23] [67-E; 68-G-H; 69-A]
2.2. In the instant case, the first appellate Court held
that not filing any document in rebuttal of the Will dated
1.3.1929 amounts to admission of the said Will as well as
c its contents. It is evident that the first appellate court
misdirected itself so far as the issue of admission is
concerned. The finding recorded by it that appellant/
defendant No.1 failed to produce any document in
rebuttal of the Will is not only wrong but preposterous.
D [Para 24] [69-B-G]
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi & Ors. AIR 1960 SC 100: 1960 SCR 773;
Basant Singh v. Janki Singh & Ors., AIR 1967 SC 341: 1967
E SCR 1; Sita Ram Bhau Patil v. Ramchandra Nago Patil AIR
1977 SC 1712: 1977 (2) SCR 671; Sushi/ Kumar v. Rakesh
Kumar, AIR 2004 SC 230: 2003 (4) Suppl. SCR 802; United
Indian Insurance Co Ltd. v. Samir Chandra Choudhary (2005)
5 SCC 784: 2005 (1) Suppl. SCR 613; Charanjit Lal Mehra
F & Ors v. Kamal Saro} Mahajan & Anr. AIR 2005 SC 2765:
2005 (2 ) SCR 661; Udham Singh v. Ram Singh & Anr.
(2007) 15 SCC 529; Nagubai Ammal & Ors. v. B.Shama Rao
& Ors. AIR 1956 SC 593: 1956 SCR 451 and L/.C of India
& Anr v. Ram Pal Singh Bisen (2010) 4 SCC 491: 2010 (3)
G SCR 438 - relied on.
Slatterie v. Pooley, (1840) 6 M & W 664 - referred to.
Order XLI Rule 27 C.P.C.
3.1. The general principle is that the Appellate Court
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 43
should not travel outside the record of the lower court A
and cannot take any evidence in appeal. However, as an
exception, Order XLI Rule 27 CPC enables the Appellate
Court to take additional evidence in exceptional
circumstances. The Appellate Court may permit additional
evidence only and only if the conditions laid down in this B
rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, provision
does not apply, when on the basis of evidence on record,
the Appellate Court can pronounce a satisfactory
judgment. The matter is entirely within the discretion of c
the court and is to be used sparingly. [Para 25) [69-H; 70-
A-C]
3.2. It is not the business of the Appellate Court to
supplement the evidence adduced by one party or the
other in the lower Court. Hence, in the absence of D
satisfactory reasons for the non-production of the
evidence in the trial court, additional evidence should not
be admitted in appeal as a party guilty of remissness in
the lower court is not entitled to the indulgence of being
allowed to give further evidence under this rule. So a E
party who had ample opportunity to produce certain
evidence in the lower court but failed to do so or elected
not to do so, cannot have it admitted in appeal. Whenever
the appellate Court admits additional evidence it should
record its reasons for doing so. The omission to record F
the reasons must, therefore, be treated as a serious
defect. But this provision is only directory and not
mandatory, if the reception of such evidence can be
justified under the rule. [Paras 28 and 31) [71-13-D, H; 72-
8-C] G
3.3. The application for taking additional evidence on
record at a belated stage cannot be filed as a matter of
right. The court can consider such an application with
circumspection, provided it is covered under either of the
prerequisite condition incorporated in the statutory H
44 SUPREME COURT REPORTS [2012] 8 S.C.R.
A provisions itself. The discretion is to be exercised by the
court judicially taking into consideration the relevance of
the document in respect of the issues involved in the
case and the circumstances under which such an
evidence could not be led in the court below and as to
B whether the applicant had prosecuted his case before
the court below diligently and as to whether such
evidence is required to pronounce the judgment by the
appellate court. In case the court comes to the conclusion
that the application filed comes within the four corners
c of the statutory provisions itself, the evidence may be
taken on record, however, the court must record reasons
as on what basis such an application has been allowed.
[Para 37] [74-E-H; 75-A]
K. Venkataramiah v. A Seetharama Reddy & Ors. AIR
D 1963 SC 1526: 1964 SCR 35; The Municipal Corporation of
Greater Bombay v. Lala Pancham & Ors. AIR 1965 SC
1008: 1965 SCR 542; Soonda Ram & Anr. v. Rameshwaralal
& Anr. AIR 1975 SC 479: 1975 (3) SCR 146; Syed Abdul
Khader v. Rami Reddy & Ors. AIR 1979 SC 553; Haji
E Mohammed /shaq Wd. S. K. Mohammed & Ors. v. Mohamed
Iqbal and Mohamed Ali and Co. AIR 1978 SC 798: 1978 (3)
SCR 571; State of UP. v. Manbodhan Lal Srivastava AIR
1957 SC 912: 1958 SCR 533; S. Rajagopa/ v. C.M.
Armugam & Ors. AIR 1969 SC 101: 1969 SCR 254; State
F of Orissa v. Dhaniram Luhar AIR 2004 SC 1794: 2004 (2)
SCR 68; State of Uttaranchal & Anr. v. Sunil Kumar Singh
Negi AIR 2008 SC 2026: 2008 (4) SCR 804; The Secretary
& Curator, Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity & Ors. AIR 2010 SC 1285: 2010 (3) SCR 190;
G Sant Lal Gupta & Ors. v. Modem Cooperative Group Housing
Society Limited & Ors. (2010) 13 SCC 336: 2010 (13) SCR
621; The Land Acquisition Officer, City Improvement Trust
Board, Bangalore v. H. Narayanaiah etc. etc. AIR 1976 SC
2403: 1977 (1) SCR 178 and Basayya I. Mathad v. Rudrayya
S. Mathad and Ors. AIR 2008 SC 1108: 2008 (1) SCR 1155-
H relied on.
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 45
Order XU Rule 27 C.P.C. - Stage of Consideration : A
4.1. An application under Order XU Rule 27 CPC is
to be considered at the time of hearing of appeal on
merits so as to find whether the documents and/or the
evidence sought to be adduced have any relevance/ 8
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 llad-anOPportunity for adducing such evidence
at an earlier stage or not, but it depends upon whether C
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 evidence sought to be D
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 becomes
apparent to the Court. [Para 38] [75-B-E]
E
4.2. 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 final
hearing of the appeal at a stage when after appreciating
the evidence on record, the court reaches the conclusion F
that additional evidence was required to be taken on
record in order to pronounce the judgment or for any
other. substantial cause. In case, application for taking
additional evidence on record has been considered and
allowed prior to the hearing of the appeal, the order being G
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 fudgment or not, remains
inconsequential/inexecutable and is liable to be ignored.
In the instant case, the application under Order XU Rule H
46 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 27 CPC was filed on 6.4.1998 and it was allowed on
28.4.1999 though the first appeal was heard and disposed
of on 15.10.1999 and thus, the order dated 28.4.1999 is
just to be ignored. [Para 41) [76-H; 77-A-B]
B 4.3. The High Court while admitting the appeal had
framed 4 substantial questions of law, but admittedly did
not answer any of them, though had the question Nos.
2, 3 and 4 been decided, the result would have been
otherwise. [Para 42) [77-D, 78-8)
C Arjan Singh v. Kartar Singh & Ors. AIR 1951 SC 193:
1951 SCR 258 and Natha Singh & Ors. v. The Financial
Commissioner, Taxation, Punjab & Ors. AIR 1976 SC 1053:
1976 (3) SCR 620 - relied on.
o Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors. AIR
1931 PC 143 and !ndirajit Pratab Sahi v. Amar Singh AIR
1928 P.C. 128 - referred to.
Section 34 of the Specific Relief Act, 1963 :
E 5.1. Section 34 of the Specific Relief Act, 1963
provides that courts have discretion as to declaration of
status or right, however, it carves out an exception that
a court shall not make any such declaration of status or
right where the complainant, being able to seek further
F relief than a mere declaration of title, omits to do so. [Para
43) [78-C-D]
5.2. It is not permissible to claim the relief of
declaration without seeking consequential relief. In the
G instant case, suit for declaration of title of ownership had
been filed though, the plaintiff/respondent no. 1 was
admittedly not in possession of the suit property. Thus,
the suit was barred by the provision of Section 34 of the
Specific Relief Act and, therefore, ought to have been
dismissed solely on this ground. The High Court though
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 47
framed a substantial question on this point but for A
unknown reasons did not consider it proper to decide
the same. [Para 46] [78-G-H, 79-A-B]
Ram Saran & Anr. v. Smt. Ganga Devi AIR 1972 SC
2685: 1973 (2) SCC 60; Vinay Krishna v. Keshav Chandra B
& Anr. AIR 1993 SC 957 and Gian Kaur v. Raghubir Singh
(2011) 4 sec 567: 2011 (2) SCR 486 - relied on.
Section 100 CPC :
6. Section 100 CPC provides for a second appeal
only on the subs'tantial question of law. Generally, a C
Second Appeal does not lie on question of facts or of law.
However, there may be exceptional circumstances where
the High Court is compelled to interfere, notwithstanding
the limitation imposed by the wording of Section 100
CPC. It may be necessary to do so for the reason that D
after all the purpose of the establishment of courts of
justice is to render justice between the parties, though the
High Court is bound to act with circumspection while
exercising such jurisdiction. In second appeal the court
frames the substantial question of law at the time of E
admission of the appeal and the Court is required to
answer all the said questions unless the appeal is finally
decided on one or two of those questions or the court
comes to the conclusion that the question(s) framed
could not be the substantial question(s) of law. There is F
no prohibition in law to frame the additional substantial
question of law if the need so arises at the time of the
final hearing of the appeal. In the instant case, none of
the substantial questions framed by the High Court had
been answered. [Paras 47, 57 and 58] [79-C, 83-E-H, 84- G
A]
State Bank of India & Ors. v. S.N. Goyal AIR 2008 SC
2594: 2008 (7) SCR 631; Sir Chunila/ V. Mehta & Sons Ltd.
v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC
1314: 1962 Suppl. SCR 549; Vijay Kumar Ta/war v. H
48 SUPREME COURT REPORTS [2012) 8 S.C.R.
A Commissioner of Income Tax, New Delhi (2011) 1 SCC 673:
2010 (14) SCR 499; Rajeshwari v. Puran lndoria (2005) 7
SCC 60: 2005 (2) Suppl. SCR 1016; Jagdish Singh v. Nathu
Singh, AIR 1992 SC 1604: 1991 ( 2 ) Suppl. SCR 567; Smt.
Prativa Devi (Smt.) v. T. V Krishnan (1996) 5 SCC 353:
B Satya Gupta (Smt.)@ Madhu Gupta v. Brijesh Kumar (~998)
6 SCC 423: 1998 (3) SCR 1183; Ragavendra Kumar v. Firm
Prem Machinary & Co. AIR 2000 SC 534: 2000 (1) SCR 77;
Molar Mal (dead) through Lrs. v. Mis. Kay Iron Works Pvt. Ltd.
AIR 2000 SC 1261: 2000 (4) SCC 285; Bharatha Matha &
c Anr. v. R. Vijaya Renganathan & Ors. AIR 2010 SC 2685:
2010 (7) SCR 154; Dinesh Kumar v. Yusuf Ali (2010) 12
SCC 740: 2010 (7) SCR 222; Jai Singh v. Shakuntala AIR
2002 SC 1428: 2002 (2) SCR 431; Kashmir Singh v. Hamam
Singh & Anr. AIR 2008 SC 1749: 2008 (3) SCR 763 and
Mysore State Road Transport Corporation v. Mirja Khasim Ali
0
Beg & Anr. AIR 1977 SC 747: 1977 (2) SCR 282 - relied
on.
Gadakh Yashwantrao Kankarrao v. E. V. alias Balasaheb
Vikhe Patil & ors. AIR 1994 SC 678: 1994 (1) SCC 682; Smt
E Bibhabati Devi v. Ramendra Narayan Roy & Ors. AIR 1947
PC 19; Suwalal Chhogalal v. Commissioner of Income Tax
(1949) 17 ITR 269; Oriental Investment Company Ltd. v.
Commissioner of Income Tax, Bombay AIR 1957 SC 852:
1958 SCR 49 and Sree Meenakshi Mills Ltd., Madurai v.
F Commissioner of Income Tax, Madras AIR 1957 SC 49:
1956 SCR 691 - referred to.
7.1. In the instant case, much reliance was placed on
the Will which was liable to be ignored. Even otherwise,
G the Will could not be relied upon for want of pleadings.
Relief not founded on the pleadings cannot be granted.
[Paras 58 and 62] [83-H; 84-A; 86-F]
7.2. There is nothing on record to show that Maratha
Government had made a gift to the ancestors of the
H plaintiff. The claim of the plaintiff to get a title by virtue of
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 49
the Will cannot be taken note of being not based on A
pleadings. Even this Will is dated 1.3.1929, affidavits filed
by the plaintiff/respondent no.1 before this Court reveal
that on 26.3.2012 he was 80 years of age. The date of Will
is 1.3.1929. So, it appears that the Will had been executed
prior to the birth of the plaintiff/respondent no.1. In such B
a fact-situation, it could not have been taken into
consideration without proper scrutiny of facts and, that
too, without any pleading. In the plaint, the plaintiff for the
reasons, best known to him, did not even make reference
to the Will. In absence of any factual foundation of the c
case, based on Will, the first appellate Court committed
a grave error taking into consideration the said Will. More
so, the Will had not been proved as required under
Section 68 of the Evidence Act. [Para 63] [87-B-E]
7.3. The High Court had placed a very heavy reliance D
on the rent note allegedly executed by the fore-fathers
of the plaintiff/ respondent no.1, however, the said rent
note does not provide any description of the property nor
does it bear any date, so it cannot be determined as on
what date it was executed; what was the duration of the E
lease; in whose favour the lease had been executed; and
what was the lease rent because it simply mentions that
the rent to be Rs.22/-. It is not evident whether it was a
rent for a month, or a year or for a total indefinite period.
The rent note does not provide any period at all. In fact, F
such a vague document could not be linked in the
circumstances proving the title. [Para 64] [87-F; 88-B-C]
7.4. The appellant/defendant No.1 produced the
certified copies of the Extract from General Land Register G
prepared on 15.3.1948 in support of its case and denying
title of the plaintiff/respondent No.1. The High Court
considered the said entries and rejected the same on the
ground that the partition among the ancestors of the
plaintiff/respondent No.1 had taken place prior to
H
50 SUPREME COURT REPORTS [2012) 8 S.C.R.
A enactment of the Cantonment Land Administration
Rules, 1925, though there is nothing on record to prove
the said partition. More so, the partition made among the
ancestors of plaintiff/respondent No.1 in 1819 would not
be a conclusive factor to determine the title of ownership
B in favour of the plaintiff/respondent No.1. The High Court
dealt with the issue in an unwarranted manner. The
General Land Register and other documents maintained
by the Cantonment Board under the Cantonment Act,
1924 and the Rules made thereunder are public
C documents and the certified copies of the same are
admissible in evidence in view of the provisions of
Section 65 read with Section 74 of the Evidence Act. The
entries made in General Land Register maintained under
Cantonment Land Administration Rules is conclusive
evidence of title. [Paras 65, 66] [88-D; 89-B-C, F-G]
0
7.5. The appellate courts dealt with the case in an
unwarranted manner giving a complete go-by to the
procedure prescribed by law. The appellate courts
examined the title of government instead of the plaintiff/
E respondent no.1. Such a course was not warranted. The
title of government cannot be disputed. In any event
possession of government for decades is not disputed.
The plaintiff shifted the case from time to time but failed
to prove his title. [Paras 67 and 68] [90-A-C]
F
Kalyan Singh Chouhan v. C.P. Joshi AIR 2011 SC 1127:
2011 (2) SCR 216; Bachhaj Nahar v. Nilima Manda/ & Ors.
AIR 2009 SC 1103: 2008 (14) SCR 621; Chief Executive
Officer v. Surendra Kumar Vakil AIR 1999 SC 2294: 1999 (2)
G SCR 118 and Union of India & Ors. v. Kam/a Venna (2010)
13 sec 511 - relied on.
Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar AIR
1953 SC 235: 1953 SCR 780; Om Prakash Gupta v. Ranbir
B. Goyal AIR 2002 SC 665: 2002 (1) SCR 359; /shwar Dutt
H v. Land Acquisition Collector & Anr. AIR 2005 SC 3165: 2005
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 51
(1) Suppl. SCR 903 and State of Maharashtra v. Mis. A
Hindustan Construction Company Ltd. AIR 2010 SC 1299:
2010 (4) SCR 46 - referred to.
8.1. In conclusion it is held as follows: (i) The first
appellate court as well as the High Court committed grave
8
error in shifting the burden of proof on the Union of India,
appellant/defendant No.1, though it could have been
exclusively on the plaintiff/respondent No.1 to prove his
case. (ii) There is nothing on record to prove the grant/
gift by the Maratha Government in favour of ancestors
of plaintiff/respondent No.1 in the year 1800. (iii)Plaintiff/ C
Respondent No.1 miserably failed to prove the pedigree
produced by him. (iv) The alleged partition in the year
1819 among the ancestors of plaintiff/respondent No.1
even if had taken place, cannot be a proof of title of the
plaintiff/respondent No.1 over the suit property as the D
pedigree has not been proved. Presumption under
Section 90 of the Evidence Act in respect of 30 years' old
document coming from proper custody relates to the
signature, execution and attestation of a document i.e.
to its genuineness but it does not give rise to E
presumption of correctness of every statement contained
in it. The contents of the document are true or it had been
acted upon have to be proved like any other fact. More
so, in case the Will is ignored, there is nothing on record
to show as how the plaintiff/respondent no. 1 could claim F
the title. (v) The rent note produced by the appellant/
defendant No.1 before the court below does not prove
anything in favour of the plaintiff/respondent. The same
being a vague document is incapable of furnishing any
information and, thus, is liable to be rejected. The said G
document does not make .it clear as who has executed
it and in whose favour the same stood executed. It does
not bear any date as it cannot be ascertained when it was
executed. The lease deed cannot be executed without the
signature/thumb impression of the lessee. The said lease H
52 SUPREME COURT REPORTS [2012] 8 S.C.R.
A does not contain any signature/thumb impression of any
lessee and also the tenure of the lease has not been
mentioned therein. The rent has been mentioned as
Rs.22/- without giving any detail as to whether it was per
day, fortnightly, monthly, quarterly or yearly or for ever.
B More so, there is no reference to the said rent note in the
pleadings contained in the plaint, therefore, it is just to
be ignored. (vi) Had there been any Will in existence and
not available with the plaintiff/respondent No.1 for any
reason whatsoever at the time of institution of the suit,
c the plaintiff/respondent No.1 could have definitely
mentioned that Will had been executed in his favour by
his maternal grand-father which could not be traced.
Therefore, the application under Order XLI Rule 27 CPC
was liable to be rejected. Even otherwise, the Will in
absence of any pleading either in the plaint or first appeal
0
could not be taken on record. More so, the Will was not
proved in accordance with law i.e. Section 68 of the
Evidence Act. (vii)The court cannot travel beyond the
pleadings as no party can lead the evidence on an issue/
point not raised in the pleadings and in case, such
E evidence has been adduced or a finding of fact has been
recorded by the Court, it is just to be ignored. Though it
may be a diffe.rent case where in spite of specific
pleadings, a particular issue is not framed and parties
having full knowledge of the issue in controversy lead the
F evidence and the court records a finding on it. (viii) The
first appellate court committed a grave error in deciding
the application under Order XLI Rule 27 CPC much prior
to the hearing of the appeal. Thus, the order allowing the
said application is liable to be ignored as the same had
G been passed in gross violation of the statutory
requirement. (ix) The documents produced by the Union
of India have not been properly appreciated by the first
appellate court and the High Court. (x) The courts below
further committed an error holding that in case the
H document is taken on record, the document as well as
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 53
the content thereof would be deemed to have been A
proved. (xi)The appellate courts have also wrongly
rejected the certified copies of the documents prepared
by the Cantonment Board which were admissible in
evidence. (xii)The High Court committed a grave error in
not addressing itself to the substantial questions of law B
framed at the time of admission of the appeal and it ought
to have decided the same or after discussing the same a
finding could have been recorded that none of them was
substantial question of law. (xiii) The suit was barred by
the proviso to Section 34 of the Specific Relief Act, for the c
reason that plaintiff/respondent No.1, admittedly, had not
been in possession and he did not ask for restoration of
possession or any other consequential relief. (xiv)The
first appellate court as well as the High Court recorded a
finding that the Union of India failed to prove its title over D
the suit land. The said courts did not realise that this was
not the issue to be determined, rather the issue had been
as to whether the plaintiff/respondent No.1 was the owner
of the suit land. (xv)The first appellate court has not
decided the issue of admission of documents in correct
perspective and recorded a perverse finding. (xvi) E
Question of filing a document in rebuttal of a Will could
not arise. The other party has to admit or deny the
document as required under Order XII CPC. There could
be no Will in favour of the Union of India by the
predecessors of the plaintiff, on the basis of which it F
could also claim title. (xvii) The courts below had wrongly
drawn adverse inference against the appellant/defendant
No.1 for not producing the documents as there was no
direction of the court to produce the same. Neither the
plaintiff/respondent No.1 had ever made any application G
in this respect nor he filed any application under Order
XI CPC submitting any interrogation or for inspection or
production of document. (xviii) The appellate courts have
decided the appeals in unwarranted manner in complete·
derogation of the statutory requirements. Provisions of H
54 SUPREME COURT REPORTS (2012] 8 S.C.R.
A CPC and Evidence Act have been flagrantly violated.
[Para 69] [90-C-H; 91-A-H; 92-A-H; 93-A-H; 94-A-B]
8.2. The judgments and decrees of the first and
second appellate courts are set aside and the judgment
and decree passed by trial court is restored. [Para 70] [94-
B
C]
Case Law Reference:
AIR 1917 PC 6 referred to Para 6
c 1953 SCR 758 referred to Para 6
1964 SCR 933 referred to Para6
1965 SCR 145 referred to Para 6
D 1968 SCR 862 referred to Para 6, 9
2003 (1) Suppl. SCR 625 referred to Para 6
AIR 2010 SC 3813 referred to Para 6
(2011) 9 sec 126 referred to Para 6
E
AIR 1915 PC 96 referred to Para7
AIR 2003 SC 3342 relied on Para 8
2000 (2) SCR 594 relied on Para 8
F AIR 2001 SC 2328 relied on Para 8
2004 (4) Suppl. SCR 145 relied on Para 9
1966 SCR 436 relied on Para10
G 1967 SCR 153 relied on Para11
AIR 2012 SC 1339 relied on Para 11
AIR 1988 SC 1074 relied on Para 13
2004 (6) Suppl. SCR 242 relied on Para 13
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 55
2005 (2) SCR 797 relied on Para 14 A
2004 (6) Suppl. SCR 599 relied on Para 14
2005 (4) Suppl. SCR 1010relied on Para 14
2005 (5) Suppl. SCR 439 relied on Para 14
B
1960 SCR 773 relied on Para 20
1967 SCR 1 relied on Para 20
1977 (2) SCR 671 relied on Para 20
c
2003 (4) Suppl. SCR 802 relied on Para 20
2005 (1) Suppl. SCR 613 relied on Para 20
2005 (2) SCR 661 relied on Para 20
(2001) 15 sec 529 relied on Para 20 D
1956._SCR 451 relied on Para 21
(1840) 6 M & W 664 referred to Para 21
2010 (3) SCR 438 relied on Para 22 E
1964 SCR 35 relied on Paras 25, 35
1965 SCR 542 relied on Paras 25, 27
1975 (3) SCR 146 relied on Para 25
F
AIR 1979 SC 553 relied on Para 25
1978 (3) SCR 571 relied on Para 26
1958 SCR 533 relied on Para 28
G
1969 SCR 254 relied on Para 28
2004 (2) SCR 68 relied on Para 33
2008 (4) SCR 804 relied on Para 33
H
56 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 2010 (3) SCR 190 relied on Para 33
2010 (13) SCR 621 relied on Para 33
1977 (1) SCR 178 relied on Para 34
2008 (1) SCR 1155 relied on Para 34
B
1951 SCR 258 relied on Paras 38, 40
1976 (3) SCR 620 relied on Para 38
AIR 1931 PC 143 referred to Para 39
c AIR 1928 P.C. 128 referred to Para 39
1973 (2) sec 60 relied on Para 44
AIR 1993 SC 957 relied on Para 45
D 2011 (2) SCR 486 relied on Para 45
2008 (7) SCR 631 relied on Para 48
1962 Suppl. SCR 549 relied on Para 48
2010 (14) SCR 499 relied on Para 49
E
2005 (2) Suppl. SCR 1016relied on Para 49
1994 (1) sec 682 referred to Para 50
AIR 1947 PC 19 referred to Para 51
F
(1949) 17 ITR 269 referred to Para 52
1958 SCR 49 referred to Para 53
1956 SCR 691 referred to Para 53
G 1991 (2) Suppl. SCR 567 relied on Para 54
(1996) 5 sec 353 relied on Para 54
1998 (3) SCR 1183 relied on Para 54
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 57
2000 (1) SCR 77 relied on Para 54 A
2000 (4) sec 285 relied on Para 54
2010 (7) SCR 154 relied on Para 54
2010 (7) SCR 222 relied on Para 54
B
2002 (2) SCR 431 relied on Para 55
2008 (3) SCR 763 relied on Para 55
1977 (2) SCR 282 relied on Para 56
c
2011 (2) SCR 216 relied on Para 62
1953 SCR 780 referred to Para 62
2002 (1) SCR 359 referred to Para 62
2005 (1) Suppl. SCR 903 referred to Para 62 D
2010 (4) SCR 46 referred to Para 62
2008 (14) SCR 621 relied on Para 63
0
1999 (2) SCR 118 relied on Para 66 E
(2010) 13 sec 511 relied on Para 66
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1374 of 2008.
F
From the Judgment & Order dated 19.4.2007 of the High
Court of Judicature at Allahabad in Second Appeal No. 289 of
2000.
R.P. Bhatt, Madhurima Talia, B. Krishna Prasad for the
Appellant. G
A.K Ganguly, C.L. Pandey, J.M. Sharma, Vibhor Garg,
Anmanya Pandey, Satya Mitra Garg, N. Sheba, Sri Ram J.
Thalapathy, V.Adhmoolam for the Respondents.
H
58 SUPREME COURT REPORTS [2012] 8 S.C.R.
A The Judgment of the Court was delivered by
DR. 8.S. CHAUHAN, J. 1. This appeal has been
preferred against the impugned judgment and decree dated
19.4.2007 passed by the High Court of Judicature at Allahabad
B in Second Appeal No.289 of 2000 by which it has upheld the
judgment and decree of the first appellate Court dated
15.10.1999 passed in Civil Appeal No.81 of 1998 by which the
first appellate Court had reversed the judgment and decree of
the Civil Court dated 20.1.1998 passed in Original Suit No.442
of 1995 wherein the plaintiff/respondent no.1 had sought
C declaration of title of the ownership in respect of the suit
property.
2. Facts and circumstances giving rise to this appeal are:
D A. Plaintiff/respondent no.1-lbrahim Uddin filed Original
Suit No.442 of 1995 in the Court of Civil Judge, Agra on
25.7.1995 seeking a decree for declaration that he was the
owner of the suit property (Agriculture land measuring 25
bighas), making averments that the suit land originally had been
E with the Maratha Government (Scindia-Gwalior). The ancestors
of the plaintiff having close association with the Maratha
Government, were made a grant in respect of the suit land in
the year 1800. Subsequently, the land was partitioned between
the ancestors of the plaintiff in the year 1819. The plaintiff/
F respondent no.1 being the only heir (descendant) of Sm!. Hasin
Begum and Zafaruddin became the absolute owner of the land
after the death of his mother Sm!. Hasin Begum. The said land
was never sold, alienated, transferred or gifted to any person
either by the plaintiff or his ancestors at any point of time. The
suit land was given on rent to the State authorities in Agra by
G executing a rent note for a sum of Rs.22/- per month. The Union
of India claimed title over the suit land illegally and in an
unauthorised manner on 22.2.1993 and afterwards, thus the
cause of action arose to approach the court. ·
H B. The defendant no.1 /appellant filed the written statement
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 59
[DR. B.S. CHAUHAN, J.]
denying the averments and ownership of the plaintiff/respondent A
no.1 and averred that the land belonged to the Ministry of
Defence, i.e., Union of India, a part of which has been leased
out to several persons for agriculture work and their lease has
been renewed from time to time. As they became unauthorised
occupants, proceedings had been initiated in accordance with B
law and eviction order had been passed against the occupants/
tenants.
C. In view of the pleadings, 8 issues were framed by the
Trial Court and after appreciating the evidence on record, the C
trial Court came to the conclusion that Pedigree produced by
the plaintiff alongwith the plaint was not successfully proved; the
plaintiff could not prove any kind of grant by the Maratha
Government to his ancestors/great-grandfathers in the year
1800. Plaintiff failed to prove the partition between his
ancestors in 1819. The lease deed alleged to have been D
executed in favour of the Military Estate Officer under the Union
of India, appellant/defendant No.1, was not successfully proved.
In view of the above, the suit was dismissed vide judgment and
decree dated 20 .1.1998.
E
D. Aggrieved, the plaintiff/respondent no.1 preferred the
first appeal before the District Judge, Agra. During the
pendency of the said appeal, he preferred an application under
Order XLI Rule 27 of the Code of Civil Procedure 1908
(hereinafter called "CPC") on 6.4.1998 for adducing additional F
evidence, i.e., Will executed by his maternal grandfather dated
1.3.1929 in his favour bequeathing the suit property. The said
application was allowed by the first appellate Court vide order
dated 28.4.1999. The First Appeal itself stood allowed by the
first appellate Court vide judgment and decree dated G
15.10.1999 wherein the first appellate Court came to the
conclusion that Maratha Government had made the gift of land
in favour of plaintiffs fore-fathers which was subsequently
partitioned. The registered partition deed stood duly proved
and it was the proof of the title of the plaintiff/respondent no.1. H
60 SUPREME COURT REPORTS [2012] 8 S.C.R.
A The plaintiff/respondent no.1 made an application for inspection
of the record before the officers of the appellant/defendant no.1
but perusal of the record was not permitted. The appellant/
defendant no.1 did not produce any document to show its title
and failed to produce the original record, thus, adverse
B inference was drawn against it in view of the provisions of
Section 114 clause(g) of the Indian Evidence Act, 1872
(hereinafter called the Evidence Act). The Will, taken on record
as an additional evidence at appellate stage stood proved and
thus, contents thereof automatically stood proved.
c E. Aggrieved, the appellant preferred Second Appeal
before the High Court which has been dismissed vide
impugned judgment and decree. Hence, this appeal.
3. Shri R.P. Bhatt, learned Senior counsel duly assisted
D by Ms. Madhurima Tatia, Advocate has submitted that there
was no documentary evidence or trustworthy oral evidence that
the suit property had been given to the fore-fathers of the
plaintiff/respondent no.1 by the Maratha Government in the year
1800. Same remained the factual aspect in respect of alleged
E partition among his fore-fathers in the year 1819. The first
appellate Court had no occasion to decide the application
under Order XLI Rule 27 CPC prior to the hearing of the appeal
itself. More so, as there has been no reference to the Will in
the plaint or First Appeal, thus, it could not be taken on record
F for want of pleadings in this respect. Further, taking the Will on
record did not mean that either the Will or its contents stood
proved. None had proved the said Will and thus, could not be
relied upon. If the Will is ignored, there is no evidence on record
to prove the case of the plaintiff/respondent no.1.
G The High Court had framed 4 substantial questions of law
at the time of admission of the appeal and 2 additional
substantial questions at a later stage but did not answer either
of them nor recorded any finding that none of them was, in fact,
a substantial question of law, rather the appeal has been
H decided placing reliance on the Will, which was liable to be
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 61
[DR. B.S. CHAUHAN, J.]
ignored altogether and making reference to the record of the A
Cantonment Board. In case, the Union of India did not produce
the revenue record before the trial Court, the first appellate
Court has wrongly drawn adverse inference under Section
114(g) of the Evidence Act. Thus, the appeal deserves to be
allowed. B
4. Per contra, Shri Asok Ganguly and Shri C.L. Pandey,
learned Senior counsel with Shri Vibhor Garg, Advocate
·vehemently opposed the appeal contending that concurrent
findings recorded by the first and second appellate Court are C
not liable to be interfered with in discretionary jurisdiction under
Article 136 of the Constitution of India, 1950. The registered
partition deed of 1819 is the proof of title of the plaintiff/
respondent no. 1. In view of the fact that the Second Appeal
could be decided on limited issues, the High Court was not
bound to answer the substantial questions of law, framed by it. D
The appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
E
Presumption under Section 114(9) of the Evidence Act :
6. Generally, it is the duty of the party to lead the best
evidence in his possession, which could throw light on the issue
in controversy and in case such material evidence is withheld,
the· Court may draw adverse inference under Section 114(g) F
of the Evidence Act notwithstanding, that the onus of proof did
not lie on such party and it was not called upon to produce the
said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha
Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal
& Ors., AIR 1953 SC 225; A. Raghavamma & Anr. v. A. G
Chenchamma & Anr., AIR 1964 SC 136; The Union of India
v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal
Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC
1413; Mis. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors.,
AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam, AIR H
62 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of
India & Anr., (2011) 9 SCC 126).
7. However, in Mt. Bi/as Kunwar v. Desraj Ranjit Singh,
AIR 1915 PC 96, a view has been expressed that it is open to
a litigant to refrain from producing any document that he
8
considers irrelevant; if the other litigant is dissatisfied, it is for
him to apply for interrogatories/inspections and production of
documents. If he fails to do so, neither he nor the Court at his
suggestion, is entitled to draw any inference as to the contents
of any such documents.
c
8. In Kamma Otukunta Ram Naidu v. Chereddy Pedda
Subba Reddy & Ors., AIR 2003 SC 3342, this Court held that
all the pros and cons must be examined before drawing an
adverse inference against a party. In that case the issue had
D been, as to whether two persons had been travelling together
in the vehicle and presumption had been drawn only on the
basis that the bus tickets of both the persons were not
produced. This Court held that presumption could not have
been drawn if other larger evidence was shown to the contrary.
E (See also: Mohinder Kaur v. Kusam Anand, (2000) 4 SCC
214; and Takhaji Hiraji v. Thakore Kubersing Chamansing &
Ors., AIR 2001 SC 2328).
9. In Municipal Corporation, Faridabad v. Siri Niwas, AIR
2004 SC 4681, this Court has taken the view that the law laid
F down by this Court in Gopa/ Krishnaji Ketkar (supra) did not
lay down any law, that in all situations the presumption in terms
of clause (g) of Section 114 of the Evidence Act must be drawn.
10. In Mahant Shri Srinivas Ramanuj Das v.
G Surjanarayan Das & Anr., AIR 1967 SC 256, this Court held
that mere withholding of documentary evidence by a party is
not enough to draw adverse inference against him. The other
party must ask the party in possession of such evidence to
produce the same, and in case the party in possession does
H not produce it, adverse inference may be drawn:
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 63
[DR. B.S. CHAUHAN, J.]
"It is true that the defendant-respondent also did not call A
upon the plaintiff-appellant to produce the documents
whose existence was admitted by one or the other witness
of the plaintiff and that therefore, strictly speaking, no
inference adverse to the plaintiff can be drawn from his
non-producing the list of documents. The Court may not B
be in a position to conclude from such omission that those
documents would have directly established the case for the
respondent. But it can take into consideration in weighing
the evidence or any direct inferences from established
facts that the documents might have favoured the c
respondent case."
11. In Ramrati Kuer v. Dwarika Prasad Singh & Ors., AIR
1967 SC 1134, this Court held:
"It is true that Dwarika Prasad Singh said that his father D
used to .keep accounts. But no attempt was made on
behalf of the appellant to ask the court to order Dwarika
Prasad Singh to produce the accounts. An adverse
inference could only have been drawn against the
plaintiffs-respondents if the appellant had asked the court E
to order them to produce accounts and they had failed
to produce them after admitting that Basekhi Singh used
to keep accounts. But no such prayer was made to the
court, and in the circumstances no adverse inference could
be drawn from the non-production of accounts." F
(See also: Ravi Yashwant Bhoir v. District Collector,
Raigad & Ors., AIR 2012 SC 1339).
12. In Smt. Indira Kaur & Ors. v. Shri Shea Lal Kapoor,
AIR 1988 SC 1074, the lower courts drew an adverse inference G
against the appellant-plaintiff on the ground that the plaintiff was
not ready and willing to perform his part of the contract. The
question arose as to whether the party had the means to pay.
The court further held that before the adverse inference is drawn
against a particular party, the conduct and diligence of the H
64 SUPREME COURT REPORTS (2012] 8 S.C.R.
A other party is also to be examined. Where a person deposed
that as he had deposited the money in the Bank and the other
party did not even ask as on what date and in which Bank the
amount had been deposited and did not remain diligent
enough, the question of drawing adverse inference against
B such a person for not producing the Pass Book etc. cannot be
drawn.
13. In Mahendra L. Jain & Ors. v. lndort1 Development
Authority & Ors., (2005) 1 SCC 639, this Court held that mere
non-production of documents would not result in adverse
C inference. If a document was called for in the absence of any
pleadings, the same was not relevant. An adverse inference
need not necessarily be drawn only because it would be lawful
to do so.
D 14. In Manager, R.8.1., Bangalore v. S. Mani & Ors., AIR
2005 SC 2179, this Court dealt with the issue wherein the
Industrial Tribunal directed the employer to produce the
attendance register in respect of the first party workmen. The
explanation of the appellant was that the attendance registers
E being very old, could not be produced. The Tribunal, however,
in its award noticed the same and drew an adverse inference
against the appellants for non-production of the attendance
register alone. This Court reversed the finding observing:
"As noticed hereinbefore, in this case also the
F respondents did not adduce any evidence whatsoever.
Thus, in the facts and circumstances of the case, the
Tribunal erred in drawing an adverse inference.
The initial burden of proof was on the workmen to show
G that they had completed 240 days of service. The Tribunal
did not consider the question from that angle. It held that
the burden of proof was upon the appellant on the premise
that they have failed to prove their plea of abandonment
of service"
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 65
[DR. B.S. CHAUHAN, J.]
(See also: A. Jayachandra v. Aneel Kaur, AIR 2005 SC A
534; R.M. Yellatti v. Assistant Executive Engineer AIR 2006
SC 355; and Pratap Singh & Anr. v. State of M.P., AIR 2006
SC 514).
15. Order XI CPC contains certain provisions with the
8
object to save expense by obtaining information as to material
facts and to obtain admission of any fact which he has to prove
on any issue. Therefore, a party has a right to submit
interrogatories relating to the same matter in issue. The
expression "matter'' means a question or issue in dispute in the C
action and not the thing about which such dispute arises. The
object of introducing such provision is to secure all material
documents and to put an end to protracted enquiry with respect
to document/material in possession of the other party. In such
a fact-situation, no adverse inference can be drawn against a
party for non-production of a document unless notice is served D
and procedure is followed. Under Rule 14 of Order XI, the court
is competent to direct any party to produce the document
asked by the other party which is in his possession or power
and relating to any material in question in such suit. Rule 15
Order XI provides for inspection of documents referred to in E
pleadings or affidavits. Rule 18 thereof, empowers the court to
issue order for inspection. Rule 21 thereof provides for very
stringent consequences for non-compliance with the order of
discovery, as in view of the said provisions in case the party
fails to comply with any order to answer interrogatories or for F
discovery or inspection of documents, he shall, if he is a plaintiff,
be liable to have his suit dismissed for want of prosecution and
if he is a defendant, to have his defence, if any, struck out and
to be placed in the same position as if he had not defended,
and the party interrogating or seeking discovery or inspection G
may apply to the court for an order to that effect. Thus, in view
of the above, the suit may be dismissed for non-compliance of
the aforesaid orders by the plaintiff and the plaintiff shall also
be precluded from bringing a fresh suit on the same cause of
action. Similarly, defence of the defendant may be struck off H
66 SUPREME COURT REPORTS [2012] 8 S.C.R.
A for non-compliance of such orders.
16. Thus, in view of the above, the law on the issue can
be summarised to the effect that, issue of drawing adverse
inference is required to be decided by the court taking into
B consideration the pleadings of the parties and by deciding
whether any document/evidence, withheld, has any relevance
at all or omission of its production would directly establish the
case of the other side. The court cannot loose sight of the fact
that burden of proof is on the party which makes a factual
averment. The court has to consider further as to whether the
c other side could fil~ interrogatories or apply for inspection and
production of the documents etc. as is required under Order
XI CPC. Conduct and diligence of the other party is also of
paramount importance. Presumption or adverse inference for
non-production of evidence is always optional and a relevant
D factor to be considered in the background of facts involved in
the case. Existence of some other circumstances may justify
non-production of such documents on some reasonable
grounds. In case one party has asked the court to direct the
other side to produce the document and other side failed to
E comply with the court's order, the court may be justified in
drawing the adverse inference. All the pros and cons must be
examined before the adverse inference is drawn. Such
presumption is permissible, if other larger evidence is shown
to the contrary.
F
17. In the instant case, admittedly, the plaintiff/respondent
no.1 during the pendency of his suit had made an application
before the authorities under the control of the appellant/
defendant no.1 to make the inspection. However, he was not
G permitted to have any inspection. The plaintiff/respondent no.1
did not submit any interrogatory statement or an application for
making inspection or for production of the document as
provided under Order XI CPC. In such a fact-situation, in view
of the law referred to hereinabove, it is not permissible for the
H first appellate Court or the High Court to draw any adverse
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 67
[DR. B.S. CHAUHAN, J.]
inference against the appellant/defendant no.1. A
Admissions:
18. The first appellate court while dealing with the issue
of admission and proof of documents held as under:
B
"The plaintiff has produced will dated 1.3.1929 of his
maternal grandfather, Syed Nazim Ali which the court had
taken on record on 28.4.99 and the defendant No.1 was
given one week time for producing the rebuttal, but the
defendant No. 1 did not produce any paper against the c
Will. Therefore, it has been given in section 58 of the
Evidence that if the defendant does not produce any paper
in rebuttal, then it means that he admitted the paper
produced by the plaintiff. There is no need of proving the
same." (Emphasis added) D
19. The question does arise as to whether not filing a
document in rebuttal of a document amounts to an admission
and whether the provisions of Section 58 of the Evidence Act
are attracted.
E
Order XII CPC deals with admission of the case,
admission of the documents and judgment on admissions. Rule
1 thereof provides that a party to a suit may give notice by his
pleading or otherwise in writing that he admits the truth of the
whole or any party of the case of any other party. Rule 2 deals F
with notice to admit documents - it provides that each party
may call upon the other party to admit within 7 days from the
date of service of the notice of any document saving all such
exceptions. Rule 2A provides that a document could be deemed
to have been admitted if not denied after service of notice to G
admit documents.
20. Admission is the best piece of substantive evidence
that an opposite party can rely upon, though not conclusive, is
decisive of the matter, unless successfully withdrawn or proved
H
68 SUPREME COURT REPORTS [2012] 8 S.C.R.
A erroneous. Admission may in certain circumstances, operate
as an estoppel. The question which is needed to be considered
is what weight is to be attached to an admission and for that
purpose it is necessary to find out as to whether it is clear,
unambiguous and a relevant piece of evidence, and further it
B is proved in accordance with the provisions of the Evidence Act.
It would be appropriate that an opportunity is given to the person
under cross-examination to tender his explanation and clear the
point on the question of admission. (Vide: Narayan
Bhagwantrao Gosavi Ba/ajiwale v. Gopal Vinayak Gosavi &
C Ors., AIR 1960 SC 100; Basant Singh v. Janki Singh & Ors.,
AIR 1967 SC 341; Sita Ram Bhau Patil v. Ramchandra Nago
Patil, AIR 1977 SC 1712; Sushi/ Kumar v. Rakesh Kumar,
AIR 2004 SC 230; United Indian Insurance Co Ltd. v. Samir
Cl1andra Choudhary., (2005) 5 SCC 784; Charanjit !al Mehra
& Ors v. Kamal Saro} Mahajan & Anr., AIR 2005 SC 2765;
0
and Udham Singh v. Ram Singh & Anr., (2007) 15 SCC 529.)
21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors.,
AIR 1956 SC 593, this Court held that admission made by a
party is admissible and best evidence, unless it is proved that
E it had been made under a mistaken belief. While deciding the
said case reliance has been placed upon the judgment in
S!atterie v. Pooley, (1840) 6 M & W 664, wherein it had been
observed "What a party himself admits to be true, may
reasonably be presumed to be so."
F
22. In L./.C of/ndia &Anr v. Ram Pal Singh Bisen, (2010)
4 SCC 491, this Court held that "failure to prove the defence
does not amount to an admission, nor does it reverse or
discharge the burden of proof of the plaintiff."
G 23. In view of the above, the law on the admissions can
be summarised to the effect that admission made by a party
though not conclusive, is a decisive factor in a case unless the
other party successfully withdraws the same or proves it to be
erroneous. Even if the admission is not conclusive it may
H operate as an estoppel. Law requires that an opportunity be
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 69
[DR. B.S. CHAUHAN, J.]
given to the person who has made admission under cross- A
examination to tender his explanation and clarify the point on
the question of admission. Failure of a party to prove its
defence does not amount to admission, nor it can reverse or
discharge the burden of proof of the plaintiff.
B
24. In the instant case, the Court held that not filing any
document in rebuttal of the Will dated 1.3.1929 amounts to
admission of the said Will as well as it contents. Without
following the procedure as required under Order XII CPC or
admission having not been made during the course of hearing C
before the Court, the question of application of Section 58 of
the Evidence Act could not arise. Section 58 provides that a
fact may not need to be proved in any proceeding which the
parties thereto agreed to admit at the hearing or which, before
the hearing, they agree to admit by any writing under their hands
or which they admitted by their pleading, even in that case court D
may, in its discretion, even if such a admission has been made
by the party, require the fact admitted to be proved otherwise
than by such admission. In fact, admission by a party may be
oral or in writing. 'Admissions' are governed under Sections
17 to 31 of the Evidence Act and such admission can be E
tendered and accepted as substantive evidence. While
admission for purposes of trial may dispense with proof of a
particular fact. Section 58 deals with admissions during trial i.e.
at or before the hearing, which are known as judicial
admissions or stipulations dispense it with proof. Admissions F
are not conclusive proof but may operate as estoppel against
its maker. Documents are necessarily either proved by witness
or marked on admission.
In view of above, it is evident that the first appellate court G
has misdirected itself so far as the issue of admission is
concerned. The finding recorded by it that appellant/defendant
No.1 failed to produce any document in rebuttal of the Will is
not only wrong but preposterous.
H
70 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Order XLI Rule 27 C.P.C.
25. The general principle is that the Appellate Court should
not travel outside the record of the lower court and cannot take
any evidence in appeal. However, as an exception, Order XLI
B Rule 27 CPC enables the Appellate Court to take additional
evidence in exceptional circumstances. The Appellate Court
may permit additional evidence only and only if the conditions
laid down in this rule are found to exist. The parties are not
entitled, as of right, to the admission of such evidence. Thus,
C provision does not apply, when on the basis of evidence on
record, the Appellate Court can pronounce a satisfactory
judgment. The matter is entirely within the discretion of the court
and is to be used sparingly. Such a discretion is only a judicial
discretion circumscribed by the limitation specified in the rule
itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy &
D Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater
Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda
Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and
Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
E 26. The Appellate Court should not, ordinarily allow new
evidence to be adduced in order to enable a party to raise a
new point in appeal. Similarly, where a party on whom the onus
of proving a certain point lies fails to discharge the onus, he is
not entitled to a fresh opportunity to produce evidence, as the
F Court can, in such a case, pronounce judgment against him and
does not require any additional evidence to enable it to
pronounce judgment. (Vide: Haji Mohammed lshaq Wd. S. K.
Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and
Co., AIR 1978 SC 798).
G 27. Under Order XU , Rule 27 CPC, the appellate Court
has the power to allow a document to be produced and a
witness to be examined. But the requirement of the said Court
must be limited to those cases where it found it necessary to
obtain such evidence for enabling it to pronounce judgment.
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 71
[DR. B.S. CHAUHAN, J.]
This provision does not entitle the appellate Court to let in fresh A
evidence at the appellate stage where even without such
evidence it can pronounce judgment in a case. It does not entitle
the appellate Court to let in fresh evidence only for the purpose
of pronouncing judgment in a particular way. In other words, it
is only for removing a lacuna in the evidence that the appellate B
Court is empowered to admit additional evidence. [Vide: Lala
Pancham & Ors. (supra) ].
28. It is not the business of the Appellate Court to
supplement the evidence adduced by one party or the other in
the lower Court. Hence, in the absence of satisfactory reasons C
for the non7production of the evidence in the trial court,
additional evidence should not be admitted in appeal as a party
guilty of remissness in the lower court is not entitled to the
indulgence of being allowed to give further evidence under this
rule. So a party who had ample opportunity to produce certain D
evidence in the lower court but failed to do so or elected not to
do so, cannot have it admitted in appeal. (Vide: State of U.P.
v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S.
Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).
E
29 ..The inadvertence of the party or his inability to
understand the legal issues involved or the wrong advice of a
pleader or the negligence of a pleader or that the party did not
realise the importance of a document does not constitute a
"substantial cause" within the meaning of this rule. The mere F
fact thaf certain evidence is important, is not in itself a sufficient
ground for admitting that evidence in appeal.
30. The words "for any other substantial cause" must be
read with the word "requires" in the beginning of sentence, so
that it is only where, for any other substantial cause, the G
Appellate Court requires additional evidence, that this rule will
apply, e.g., when evidence has been taken by the lower Court
so imperfectly that the Appellate Court cannot pass a
satisfactory judgment.
H
72 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 31. Whenever the appellate Court admits additional
evidence it should record its reasons for doing so. (Sub-rule
2). It is a salutary provision which operates as a check against
a too easy reception of evidence at a late stage of litigation
and the statement of reasons may inspire confidence and
s disarm objection. Another reason of this requirement is that,
where a further appeal lies from the decision, the record of
reasons will be useful and necessary for the Court of further
appeal to see, if the discretion under this rule has been properly
exercised by the Court below. The omission to record the
C reasons must, therefore, be treated as a serious defect. But
this provision is only directory and not mandatory, if the
reception of such evidence can be justified under the rule.
32. The reasons need not be recorded in a separate order
provided they are embodied in the judgment of the appellate
D Court. A mere reference to the peculiar circumstances of the
case, or mere statement that the evidence is necessary to
pronounce judgment, or that the additional evidence is required
to be admitted in the interests of justice, or that there is no
reason to reject the prayer for the admission of the additional
E evidence, is not enough comp1 iance with the requirement as
to recording of reasons.
33. It is a settled legal proposition that not only
administrative order, but also judicial order must be supported
F by reasons, recorded in it. Thus, while deciding an issue, the
Court is bound to give reasons for its conclusion. It is the duty
and obligation on the part of the Court to record reasons while
disposing of the case. The hallmark of order and exercise of
judicial power by a judicial forum is for the forum to disclose
G its reasons by itself and giving of reasons has always been
insisted upon as one of the fundamentals of sound
administration of the justice - delivery system, to make it known
that there had been proper and due application of mind to the
issue before the Court and also as an essential requisite of the
principles of natural justice. The reason is the heartbeat of every
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 73
[DR. B.S. CHAUHAN, J.]
conclusion. It introduces clarity in an order and' without the A
same, the' order becomes lifeless. Reasons substitute
subjectivity with objectivity. The absence of reasons renders an
order indefensible/unsustainable particularly when the order is
subject to further challenge before a higher forum. Recording
of reasons is principle of natural justice and every judicial order B
must be supported by reasons recorded in writing. It ensures
transparency and fairness in decision making. The person who
is adversely affected must know why his application has been
rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR 2004
SC J794; State of Uttaranchal & Anr. v. · Sunil Kumar Singh c
Negt, AIR 2008 SC 2026; The Secretary & Curator, Victoria
Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors.,
AIR 2010 SC 1285; and Sant Lal Gupta & Ors. v. Modem
Cooperative Group Housing Society Limited & Ors., (2010)
13 sec 336). / ·
D
. '
34; In The Land Acquisition Officer, City Improvement
Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 1976
I
'·'
SC 2403, while dealing with the issue, a three judge Bench of
this Court held as under:
'· E
' "We are of the opinion that the High Court should have
l ·,,recorded its reasons to show why it found the admission
ofsuch evidence to be necessary for some substantial
reason. And if it found it necessary to admit it an
.· . opportunity should have b~en given to the appellant to rebut F
any inference arising from its insistence by leading other
I
. '· evidence." (Emphasis added)
A similar view has been reiterated by this Court in
Basawa I. Mathad v. Rudrayya s. Mathad and Ors., AIR 2008
SC 1108. G
35. A Constitution Bench of this Court in K.
I Venkataratriiah (Supra), while dealing with the same issue
held: ·
r H
r
74 SUPREME COURT REPORTS [2012] 8 S.C.R.
A "It is very much to be desired that the courts of appeal
should not overlook the provisions of cl. (2) of the Rule and
should record their reasons for admitting additional
evidence ..... The omission to record reason must,
therefore, be treated as a serious defect. Even so, we are
B unable to persuade ourselves that this provision is
mandatory." .
(Emphasis added)
In the said case, the court after examining the record of
C the case came to the conclusion that the appeal was heard for
a long time and the application for taking additional evidence
on record was filed during the final hearing of the appeal. In
such a fact-situation, the order allowing such application did not
vitiate for want of reasons.
D
36. Where the additional evidence sought to be adduced
removes the cloud of doubt over the case and the evidence has
a direct and important bearing on the main issue in the suit and
interest of justice clearly renders it imperative that it may be
E allowed to be permitted on record such application may be
allowed.
37. To sum up on the issue, it may be held that application
for taking additional evidence on record at a belated stage
cannot be filed as a matter of right. The court can consider such
F an application with circumspection, provided it is covered under
either of the prerequisite condition incorporated in the statutory
provisions itself. The discretion is to be exercised by the court
judicially taking into consideration the relevance of the
document in respect of the issues involved in the case and the
G circumstances under which such an evidence could not be led
in the court below and as to whether the applicant had
prosecuted his case before the court below diligently and as
to whether such evidence is required to pronounce the judgment
by the appellate court. In case the court comes to the conclusion
H
UNION OF !NOIA v. IBRAHIM UDDIN & ANR. 75
[DR. B.S. CHAUHAN, J.]
that the application filed comes within the four corners of the A
statutory provisions itself, the evidence may be taken on record,
however, the court must record reasons as on what basis such
an application has been allowed. However, the application
should not be moved at a belated stage.
' B
Stage of Consideration :
38. An application under Order XU Rule 27 CPC is to be
considered at the time of hearing of appeal on merits so as
to find whether the documents and/or the evidence sought to
be adduced have any relevance/bearing on the issues involved. C
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 D
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 evidence sought to be
adduced. Such occasion would arise only if on examining the E
evidence as it stands the court comes to the conclusion that
some inherent lacuna or defect becomes apparent to the Court.
(Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193;
and Natha Singh & Ors. v. The Financial Commissioner,
Taxation, Punjab & Ors., AIR 1976 SC 1053). F
39. In Parsotim Thakur & Ors. v. Lal Mohar Thakur &
Ors., AIR 1931 PC 143, it was held:
?"The provisions of S.107 as elucidated by 0.41, R.27 are
clearly not intended to allow a litigant who has been G
unsuccessful in the lower Court to patch up the weak parts
of his case and fill up omissions in the Court of appeal.
Under R.27, Cl.(1) (b) it is only where the appellate Court
"requires" it (i.e. finds it needful) ....... The legitimate
occasion for the exercise of this discretion is not H
76 SUPREME COURT REPORTS [2012) 8 S.C.R.
A whenever before the appeal is heard a party applies to
adduce fresh evidence, but "when on examining the
evidence as it stands, some inherent lacuna or defect
becomes apparent'; it may well be that the defect may be
pointed out by a party, or that a party may move the Court
B to apply the defect, but the requirement must be the
requirement of the court upon its appreciation of evidence
as it stands. Wherever the Court adopts this procedure it
is bound by R. 27(2) to record its reasons for so doing,
and under R.29 must specify the points to which the
c evidence is to be confined and record on its proceedings
the points so specified. The power so conferred upon the
Court by the Code ought to be very sparingly exercised
and one requirement at least of any new evidence to be
adduced should be that it should have a direct and
D important bearing on a main issue in the case ...
(Emphasis added)
(See also: lndirajit Pratab Sahi v. Amar Singh, AIR 1928
P.C. 128)
E 40. In Arjan Singh v. Kartar Singh & Ors. (supra), this
Court held:
" ......... If the additional evidence was allowed to be
adduced contrary to the principles governing the reception
of such evidence, it would be a case of improper exercise
F of discretion, and the additional evidence so brought on
the record will have to be ignored and the case decided
as if it was non-existent ....... The order allowing the
appellant to call the additional evidence is dated
17.8.1942. The appeal was heard on 24.4.1942. There
G was thus no examination of the evidence on the record and
a decision reached that the evidence as it stood disclosed
a lacuna which the court required to be filled up for
pronouncing the judgment" (Emphasis added)
H 41. Thus, from the above, it is crystal clear that application
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 77
[DR. B.S. CHAUHAN, J.]
for taking additional evidence on record at an appellate stage, A
even if filed during the pendency of the appeal, is to be heard
at the time of 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 B
substantial cause. In case, 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 c
or not; remains inconsequential/inexecutable and is liable to be
ignored.
In the instant case, the application under Order XLI Rule
27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999
though the first appeal was heard and disposed of on D
15.10.1999. In view of law referred to herein above, the order
dated 28.4.1999 is just to be ignored.
42. The High Court while admitting the appeal had framed
the following substantial questions of law: E
1. Whether the judgment and decree passed by the lower
appellate court is vitiated in law inasmuch as the land in
dispute which was recorded in Column B-4 under Rule 6
of the Cantonment Land Administration Rule 1937 was. F
wrongly and illegally discarded on the ground of secondary
evidence in the presence of the original register
maintained by the Military Estate Officer.
2. Whether the certified copy of the relevant registers
maintained under the Cantonment Act are admissible in G
evidence and appellate court erred in law in discarding the
same illegally against the relevant provisions of the
Evidence Act and decreed the suit of the plaintiff on the
false pretext that there is no document was filed on behalf
of the defendant? H
78 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 3. Whether the appellate court did not consider this aspect
at all that the suit for declaration without possession is not
maintainable is barred by the provision of Specific Relief
Act.
4. Whether the lower appellate court has committed
B
illega lily while accepting the Will dated 1. 3. 1992 filed on
28.4.1999 without its proof by plaintiff?
The High Court admittedly did not answer any of them,
though had the question Nos. 2, 3 and 4 been decided, the
C result would have been otherwise.
Section 34 of the Specific Relief Act, 1963 :
43. The Section provides that courts have discretion as to
declaration of status or right, however, it carves out an exception
D that a court shall not make any such declaration of status or right
where the complainant, being able to seek further relief than a
mere declaration of title, omits to do so.
44. In Ram Saran & Anr. v. Smt. Ganga Devi, AIR 1972
E SC 2685, this Court had categorically held that the suit seeking
for declaration of title of ownership but where possession is not
sought, is hit by the proviso of Section 34 of Specific Relief Act,
1963 (hereinafter called 'Specific Relief Act') and, thus, not
maintainable.
F
45. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993
SC 957, this Court dealt with a similar issue where the plaintiff
was not in exclusive possession of property and had filed a suit
seeking declaration of title of ownership. Similar view has been
reiterated observing that the suit was not maintainable, if barred
G by the proviso to Section 34 of the Specific Relief Act. (See
also: Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
46. In view of above, the law becomes crystal clear that it
is not permissible to claim the relief of declaration without
H seeking consequential relief. In the instant case, suit for
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 79
[DR. B.S. CHAUHAN, .J.]
declaration of title of ownership had been filed though, the A
plaintiff/respondent no. 1 was admittedly not in possession of
the suit property. Thus, the suit was barred by the provision of
Section 34 of the Specific Relief Act and, therefore, ought to
have been dismissed solely on this ground. The High Court
though framed a substantial question on this point but for B
unknown reasons did not consider it proper to decide the
same.
Section 100 CPC :
47. Section 100 CPC provides for a second appeal only C
on the substantial question of law. Generally, a Second Appeal
does not lie on question of facts or of law.
48. In State Bank of India & Ors. v. S.N. Goyal, AIR 2008
SC 2594, this Court explained the terms "substantial question D
of law" and observed as under :
"The word 'substantial' prefixed to 'question of law' does
not refer to the stakes involved in the case, nor intended
to refer only to questions of law of general importance, but
refers to impact or effect of the question of law on the E
decision in the /is between the parties. 'Substantial
questions of law' means not only substantial questions of
law of general importance, but also substantial question
of law arising in a case as between the parties. .. .........
any question of law which affects the final decision in a F
case is a substantial question of law as between the
parties. A question of law which arises incidentally or
collaterally, having no bearing on the final outcome, will not
be a substantial question of law. There cannot, therefore,
be a straitjacket definition as to when a substantial G
question of law arises in a case."
(Emphasis added)
Similarly, in Sir Chunila/ V. Mehta & Sons Ltd. v. Century H
80 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, this
Court for the purpose of determining the issue held:-
"The proper test for determining whether a question of law
raises in the case is substantial, would, in our opinion, be
whether it is of general public importance or whether it
B
directly and substantially affects the rights of the
parties ..... "(Emphasis added)
49. In Vijay Kumar Ta/war v. Commissioner of Income
Tax, New Delhi, (2011) 1 SCC 673, this Court held that, a point
C of law which admits of no two opinions may be a proposition
of law but cannot be a substantial question of law. To be
'substantial' a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have
a material on the decision of the case, if answered either way,
D insofar as the rights of the parties before it are concerned. To
be a question of law 'involving in the case' there must be first
a foundation for it laid in the pleadings and the question should
emerge from the sustainable findings of fact arrived at by court
of facts and it must be necessary to decide that question of law
E for a just and proper decision of the case. It will, therefore,
depend on the facts and circumstance of each case, whether
a question of law is a substantial one or not; the paramount
overall consideration being the need for striking a judicious
balance between the indispensable obligation to do justice at
F all stages and impelling necessity of avoiding prolongation in
the life of any lis."
(See also: Rajeshwari v. Puran lndoria, (2005) 7 SCC 60).
50. The Court, for the reasons to be recorded, may also
G entertain a second appeal even on any other substantial
question of law, not formulated by it, if the Court is satisfied that
the case involves such a question. Therefore, the existence of
a substantial question of law is a sine-qua-non fnr the exercise
of jurisdiction under the provisions of Section 100 CPC. The
H second appeal does not lie on the ground of erroneous findings
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 81
[DR. B.S. CHAUHAN, J.]
of facts based on appreciation of the relevant evidence. A
There may be a question, which may be a "question of
fact", "question of law", "mixed question of fact and law" and
"substantial question of law." Question means anything inquired;
an issue to be decided. The "question of fact" is whether a
8
particular factual situation exists or not. A question of fact, in
the Realm of Jurisprudence, has been explained as under:-
"A question of fact is one capable of being answered by
way of demonstration. A question of opinion is one that
cannot be so answered. An answer to it is a matter of C
speculation which cannot be proved by any available
evidence to be right or wrong."
(Vide: Salmond, on Jurisprudence, 12th Edn. page 69,
cited in Gadakh Yashwantrao Kankarrao v. E. V. alias D
Balasaheb Vikhe Patil & ors., AIR 1994 SC 678).
51. In Smt. Bibhabati Devi v. Ramendra Narayan Roy &
Ors., AIR 1947 PC 19, the Privy Council has provided the
guidelines as in what cases the second appeal can be
entertained, explaining the provisions existing prior to the E
amendment of 1976, observing as under:-
"..... that miscarriage of justice means such a departure
from the rules which permeate all judicial procedure as to
make that which happen not in the proper sense of the F
word 'judicial procedure' at all. That the violation of some
principles of law or procedure must be such erroneous
proposition of law that if that proposition to be corrected,
the finding cannot stand, or it may be the neglect of some
principle of law or procedure, whose application will have G
the same effect. The question whether there is evidence
on which the Courts could arrive at their finding, is such a
question of law.
'That the question of admissibility of evidence is a
proposition of law but it must be such as to affect materially the H
82 SUPREME COURT REPORTS [2012] 8 S.C.R.
A finding. The question of the value of evidence is not sufficient
reason for departure from the practice ...... "
52. In Suwalal Chhogalal v. Commissioner of Income
Tax, (1949) 17 ITR 269, this Court held as under:-
B "A fact is a fact irrespective of evidence, by which it is
proved. The only time a question of law can arise in such
a case is when it is alleged that there is no material on
which the conclusion can be based or no sufficient
evidence."
c
53. In
Oriental Investment Company Ltd. v.
Commissioner of Income Tax, Bombay, AIR 1957 SC 852,
this Court considered a large number of its earlier judgments,
including Sree Meenakshi Mills Ltd., Madurai v.
0 Commissioner of Income Tax, Madras, AIR 1957 SC 49, and
held that where the question of decision is whether certain profit
is made and shown in the name of certain intermediaries,
were, in fact, profit actually earned by the assessee or the
intermediaries, is a mixed question of fact and law. The Court
E further held that inference from facts would be a question of fact
or of law according as the point for determination is one of pure
fact or a "mixed question of law and fact" and that a finding of
fact without evidence to support it or if based on relevant or
irrelevant matters, is not unassailable.
F 54. There is no prohibition to entertain a second appeal
even on question of fact provided the Court is satisfied that the
findings of the courts below were vitiated by non-consideration
of relevant evidence or by showing erroneous approach to the
matter and findings recorded in the court below are perverse.
G (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604;
Smt. Prativa Devi (Smt.) v. T V. Krishnan, (1996) 5 SCC 353;
Satya Gupta (Smt.)@ Madhu Gupta v. Brijesh Kumar, (1998)
6 SCC 423; Ragavendra Kumar v. Firm Prem Machinary &
Co., AIR 2000 SC 534; Molar Mal (dead) through Lrs. v. Mis.
H Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261; Bharatha Matha
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 83
[DR. S.S. CHAUHAN, J.]
& Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685; A
and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740).
55. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this
Court held that it is permissible to interfere even on question
of fact but it may be only in "very exceptional cases and on
B
extreme perversity that the authority to examine the same in
extenso stands permissible it is a rarity rnther than a regularity
and thus in fine it can thus be safely concluded that while there
is no prohibition as such, but the power to scrutiny can only be
had in very exceptional circumstances and upon proper C
circumspection."
Similar view has been taken in the case of Kashmir Singh
v. Hamam Singh & Anr., AIR 2008 SC 1749.
56. Declaration of relief is always discretionary. If the D
discretion is not exercised by the lower court "in the spirit of
the statute or fairly or honestly or according to the rules of reason
and justice'', the order passed by the lower court can be
reversed by the superior court. (See: Mysore State Road
Transport Corporation v. Mirja Khasim Ali Beg & Anr., AIR E
1977 SC 747).
57. There may be exceptional circumstances where the
High Court is compelled to interfere, notwithstanding the
limitation imposed by the wording of Section 100 CPC. It may
be necessary to do so for the reason that after all the purpose F
of the establishment of courts of justice is to render justice
between the parties, though the High Court is bound to act with
circumspection while exercising such jurisdiction. In second
appeal the court frames the substantial question of law at the
time of admission of the appeal and the Court is required to G
answer all the said questions unless the appeal is finally
decided on one or two of those questions or the court comes
to the conclusion that the question(s) framed could not be the
substantial question(s) of law. There is no prohibition in law to
frame the additional substantial question of law if the need so H
84 SUPREME COURT REPORTS [2012] 8 S.C.R.
A arises at the time of the final hearing of the appeal.
58. In the instant case, none of the substantial questions
framed by the Court had been answered. Much reliance has
been placed on the Will which was liable just to be ignored. Even
B otherwise, the Will in the instant case cannot be relied upon for
want of pleadings.
59. The pleading taken in the plaint dated 25.7.1995
clearly revealed that the land in dispute belonged to Hafiz
Ahmad Bux and Hafiz Kareem Bux who were the ancestors of
C the plaintiff and they were the owners of the same in the year
1800. The property was partitioned between ancestors of the
plaintiff in the year 1819. There had been succession of the
property by various documents of Hafiz Kareem Bux and Hafiz
Ahmad Bux. The plaintiff claims to be heir and successor of
D one Sm!. Hasin Begum wife of Zafaruddin and daughter of Sri
Hazim Ali. He had inherited the suit property being a lone heir
of Shri Hafiz Ahmed Bux after the death of his mother Sm!.
Hasin Begum.
In case, the plaint does not make any reference that the
E property had been given to the plaintiff/respondent no.1 by way
of Will, and pleadings had not been amended at the stage of
first appeal, the question does arise as to whether, the Will
could be taken into consideration, while deciding the case.
F The trial court had considered as many as seven issues
and does not make any reference that the property had been
gifted to the ancestors of the plaintiff by the Maratha rulers.
Further finding has been recorded that in respect of documents,
the plaintiff/respondent no. 1 had given paper to defendant no.
G 1 for inspection of the rec'Jrd but he did not make any
inspection. However, a passing reference had been made by
the trial court that no record had been produced by the plaintiff
to show that the Maratha Government had given the land to the
forefathers of the plaintiff.
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 85
[DR. B.S. CHAUHAN, J.]
So far as the First Appellate Court is concerned, it placed A
a very heavy reliance on the Will and further recorded a finding
that in spite of the fact that the plaintiff filed an application for
inspection before the appellant/defendant no.1, he was not
permitted to have the inspection. Nor the said revenue record
was presented by the present appellant and, therefore, an 8
adverse inference was drawn against it. So far as the Will is
concerned, it is evident that it was taken on the record as an
additional evidence without any pleading anywhere. There is
nothing on record that the plaintiff/defendant no. 1 made any
attempt to make an amendment in the plaint even at the C
appellate stage by moving an application under Order VI Rule
17 CPC.
60. Relevant part of the application under Order XU Rule
27 CPC, reads as under:
D
?"2. That the property in suit belongs to the ancestors of
the plaintiff. The grand father of the plaintiff/appellant had
made the Will in favour of the plaintiff regarding the property
in suit inter alia other properties in year 1929.
3. That at the time of trial of the suit the said will was not E
in possession of the plaintiff and the same was misplaced
in the other lot of old papers of the plaintiff kept in store.
4. That even after best effort, and due diligence the
aforesaid Will could not be available at the time of trial of F
the suit and now after due diligence and best effort it has
been available and traced our.
5. That the papers were not available earlier so it could
not be filed in the lower court.
G
6. That the said paper is very much relevant to establish
the right, title or interest in the disputed property of the
plaintiff so the same is very necessary to be taken on
record.
H
86 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 7. That if the said paper is not taken on record the plaintiff
will be deprived from getting justice."
61. The first Appellate Court allowed the application filed
by the plaintiff under Order XLI Rule 27 CPC vide order dated
28.4.1999 which reads as under:
B
'The Will in question is necessary for the disposal of the
appeal because the applicant/appellant obtains right in the
disputed property from this Will. The respondent/
defendants have neither opposed it that as to why it was
C not produced in the subordinate court, there is no any
relevancy of it. The applicant has given reason of not
producing the Will in the subordinate court that this will was
lost. In my opinion, the will appears to be necessary for the
disposal of the appeal for the property which was obtained
D to the appellant earlier by this Will. Proper reason has
been given for not producing this Will in the subordinate
court."
62. This Court while dealing with an issue in Kalyan Singh
Chauhan v. C.P. Joshi, AIR 2011 SC 1127, after placing
E reliance on a very large number of its earlier judgments including
Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar, AIR 1953
SC 235; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC
665; lshwar Dutt v. Land Acquisition Collector & Anr., AIR 2005
SC 3165; and State of Maharashtra v. Mis. Hindustan
F Construction Company Ltd., AIR 2010 SC 1299, held that
relief not founded on the pleadings cannot be granted. A
decision of a case cannot be based on grounds outside the
pleadings of the parties. No ~vidence is permissible to be
taken on record in absence of the pleadings in that respect.
G No party can he permitted to travel beyond its pleading and that
all necessary and material facts should be pleaded by the party
in support of the case set up by it. It was further held that where
the evidence was not in the line of the pleadings, the said
evidence cannot be looked into or relied upon.
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 87
[DR. B.S. CHAUHAN, J.]
63. In Bachhaj Nahar v. Nilima Manda/ & Ors., AIR 2009 A
SC 1103, this court held that a case not specifically pleaded
can be considered by the court unless the pleadings in
substance contain the necessary averments to make out a
particular case and issue has been framed on the point. In
absence of pleadings, the court cannot make out a case not B
pleaded, suo motu.
Therefore, in view of the above, there is nothing on record
to show that Maratha Government had made a gift to the
ancestors of the plaintiff. The claim of the plaintiff to get a title C
by virtue of the Will cannot be taken note of being not based
on pleadings. Even this Will is dated 1.3.1929, affidavits filed
by the plaintiff/respondent no.1 before this Court reveal that on
26.3.2012 he was 80 years of age. The date of Will is 1.3.1929.
So, it appears that the Will had been executed prior to the birth
of the plaintiff/respondent no.1. In such a fact-situation, it could D
not have been taken into consideration without proper scrutiny
of facts and, that too, without any pleading. In the plaint, the
plaintiff for the reasons, best known to him, did not even make
reference to the Will. In absence of any factual foundation of
the case, based on Will, the first appellate Court committed a E
grave error taking into consideration the said Will. More so,
the Will had not been proved as required under Section 68 of
the Evidence Act.
64. The High Court had· placed a very heavy reliance on F
the rent note allegedly executed by the fore-fathers of the
plaintiff/ respondent no.1. The same reads as under:
"Applicant caretaker masque noori darwaza which was
constructed by Hafiz Ahmed is of our ancestor and who
received cash payment which has been deposited register G
board no.38 treasury collectorate agra situated namner
cant!., Agra, questioner is entitled to which is following
mentioned money which has been stated after enquiry it
be given to me, and if govt. has any objection to pay to
H
88 SUPREME COURT REPORTS [2012] 8 S.C.R.
A me the information about the same given to us that
condition govt. will be liable for the expenses of court I hafiz
ahmed is receiver of rent of this land which has been
situated at namner the rent which is rupees 22."
The said rent note does not provide any description of the
8
property nor does it bear any date, so it cannot be determined
as on what date it was executed; what was the duration of the
lease; in whose favour the lease had been executed; and what
was the lease rent because it simply mentions that the rent to
be Rs.22/-. It is not evident whether it was a rent for a month,
C or a year or for a total indefinite period. The rent note does not
provide any period at all. In fact, such a vague document could
not be linked in the circumstances proving the title.
65. Appellant/defendant No.1 produced the certified copies
D of the Extract from General Land Register prepared on
15.3.1948 in support of its case and denying title of the plaintiff/
respondent No.1. The relevant part thereof reads as under:
SI.No. Survey No.5 Existing Entry
E 1 --- ---
2. --·- ---
3. --- ---
F 4. Area in acres 9.447 acres
5. Description Agricultural land
6. Class B-4
G 7. By whom managed Military Estate Officer
8. Landlord Govt. of India
9.
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 89
[DR. B.S. CHAUHAN, J.]
10. A
Similarly, another land had also been shown in Survey No.6
in the same manner and showing the similar entries.
The High Court has considered the said entries and
rejected the same on the ground that the partition among the B
ancestors of the plaintiff/respondent No.1 had taken place prior
to enactment of the Cantonment Land Administration Rules,
1925, though there is nothing on record to prove the said
partition. More so, the partition made among the ancestors of
plaintiff/respondent No.1 in 1819 would not be a conclusive C
factor to determine the title of ownership in favour of the plaintiff/
respondent No.1. The High Court dealt with the issue in an
unwarranted manner as it observed as under:
"Clause B-1, B-2, B-3, B-4 and B-5 Classification of land D
was first time introduced by enactment of Cantonment Land
Administration Rule 1925. The General Land Register was
prepared near about in the year 1928, whereas the partition is
in the year 1819. The appellant also failed to file the notification
in the official gazette regarding survey Nos. 5 and 6 which are
E
situated outside the notified area and to establish that such area
was declared under Section 43A of the Cantonment Act, 1924.
In the circumstances, I do not find that it is a case where this
court in exercise of jurisdiction under Section 100 CPC can set
aside the findings of fact' arrived at by the court below."
F
66. The General Land Register and other documents
maintained by the Cantonment Board under the Cantonment
Act, 1924 and the Rules made thereunder are public documents
and the certified copies of the same are admissible in evidence
in view of the provisions of Section 65 read with Section 74 of G
the E;:vidence Act. It is settled legal position that the entries
made in General Land Register maintained under Cantonment
Land Administration Rules is conclusive evidence of title. (Vide:
Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999
SC 2294; and Union of India & Ors. v. Kam/a Verma, (2010) H
90 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 13 sec 511).
67. In view of the above, we are of the considered opinion
that the appellate courts dealt with the case in an unwarranted
manner giving a complete go-by to the procedure prescribed
by law.
8
68. The appellate courts examined the title of government
instead of the plaintiff/respondent no.1. Such a course was not
warranted. The title of government cannot be disputed. In any
event possession of government for decades is not disputed.
C The plaintiff shifted the case from time to time but failed to
prove his title.
69. To sum up: In view of the above discussion, we reach
the following conclusion:
D (i) The first appellate court as well as the High Court
committed grave error in shifting the burden of
proof on the Union of India, appellant/defendant
No.1, though it could have been exclusively on the
plaintiff/respondent No.1 to prove his case.
E
(ii) There is nothing on record to prove the grant/gift
by the Maratha Government in favour of ancestors
of plaintiff/respondent No.1 in the year 1800.
(iii) Plaintiff/Respondent No. 1 miserably failed to prove
F the pedigree produced by him.
(iv) The alleged partition in the year 1819 among the
ancestors of plaintiff/respondent No.1 even if had
taken place, cannot be a proof of title of the
G plaintiff/respondent No.1 over the suit property as
the pedigree has not been proved. Presumption
under Section 90 of the Evidence Act in respect
of 30 years' old document coming from proper
custody relates to the signature, execution and
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 91
[DR. B.S. CHAUHAN, J.]
attestation of a document i.e. to its genuineness but A
it does not give rise to presumption of correctness
of every statement contained in it. The contents of
the document are true or it had been acted upon
have to be proved like any other fact. More so, in
case the Will is ignored, there is nothing on record B
to show as how the plaintiff/respondent no. 1 could
claim the title.
(v) The rent note produced by the appellant/defendant
No.1 before the court below does not prove
anything in favour of the plaintiff/respondent. The c
same being a vague document is incapable of
furnishing any information and, thus, is liable to be
rejected. The said document does not make it
clear as who has executed it and in whose favour
the same stood executed. It does not bear any date D
as it cannot be ascertained when it was executed.
The lease deed cannot be executed without the
signature/thumb impression of the lessee. The said
lease does not contain any signature/thumb
impression of any lessee and also the tenure of the E
lease has not been mentioned therein. The rent has
been mentioned as Rs.22/- without giving any
detail as to whether it was per day, fortnightly,
monthly, quarterly or yearly or for ever. More so,
there is no reference to the said rent note in the F
pleadings contained in the plaint, therefore, it is just
to be ignored.
(vi) Had there been any Will in existence and not
available with the plaintiff/respondent No.1 for any
G
reason whatsoever at the time of institution of the
suit, the plaintiff/respondent No.1 could have
definitely mentioned that Will had been executed
in his favour by his maternal grand-father which
could not be traced. Therefore, the application
H
92 SUPREME COURT REPORTS (2012] 8 S.C.R.
A under Order XLI Rule 27 CPC was liable to be
rejected. Even otherwise, the Will in absence of any
pleading either in the plaint or first appeal could not
be taken on record. More so, the Will was not
proved in accordance with law i.e. Section 68 of the
B Evidence Act.
(vii) The court cannot travel beyond the pleadings as no
party can lead the evidence on an issue/point not
raised in the pleadings and in case, such evidence
has been adduced or a finding of fact has been
c recorded by the Court, it is just to be ignored.
Though it may be a different case where in spite of
specific pleadings, a particular issue is not framed
and parties having full knowledge of the issue in
controversy lead the evidence and the court records
D a finding on it.
(viii) The first appellate court committed a grave error in
deciding the application under Order XLI Rule 27
CPC much prior to the hearing of the appeal. Thus,
E the order allowing the said application is liable to
be ignored as the same had been passed in gross
violation of the statutory requirement.
(ix) The documents produced by the Union of India have
not been properly appreciated by the first appellate
F court and the High Court.
(X) The courts below further committed an error holding
that in case the document is taken on record, the
document as well as the content thereof would be
G deemed to have been proved.
(xi) The appellate courts have also wrongly rejected the
certified copies of the documents prepared by the
Cantonment Board which were admissible in
evidence.
H
UNION OF INDIA v. IBRAHIM UDDIN & ANR. 93
[DR. B.S. CHAUHAN, J.)
(xii) The High Court committed a grave error in not A
addressing itself to the substantial questions of law
framed at the time of admission of the appeal and
it ought to have decided the same or after
discussing the same a finding could have been
recorded that none of them was substantial question B
of law.
(xiii) The suit was barred by the proviso to Section 34 of
the Specific Relief Act, for the reason that plaintiff/
respondent No.1, admittedly, had not been in C
possession and he did not ask for restoration of
possession or any other consequential relief.
(xiv) The first appellate court as well as the High Court
recorded a finding that the Union of India failed to
prove its title over the suit land. The said courts did D
not realise that this was not the issue to be
determined, rather the issue had been as to
whether the plaintiff/respondent No.1 was the
owner of the suit land.
E
(xv) The first appellate court has not decided the issue
of admission of documents in correct perspective
and recorded a perverse finding.
(xvi) Question of filing a document in rebuttal of a Will
could not arise. The other party has to admit or deny F
the document as required under Order XII CPC.
There could be no Will in favour of the Union of India
by the predecessors of the plaintiff, on the basis of
which it could also claim title.
G
(xvii) The courts below had wrongly drawn adverse
inference against the appellant/defendant No.1 for
not producing the documents as there was no
direction of the court to produce the same. Neither
the plaintiff/respondent No.1 had ever made any H
94 SUPREME COURT REPORTS [2012] 8 S.C.R.
A application in this respect nor he fifed any
application under Order XI CPC submitting any
interrogation or for inspection or production of
document.
(xviii) The appellate courts have decided the appeals in
B
unwarranted manner in complete derogation of the
statutory requirements. Provisions of CPC and
Evidence Act have been flagrantly violated.
70. In view of above, appeal succeeds and is allowed,
C judgments and decrees of the first and second appellate courts
are set aside and the judgment and decree dated 20.1.1998
passed by Civil Court in Original Suit No.442 of 1995 is
restored. No costs.
B.B.B. Appeal allowed.
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