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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     1374     of     2008   

Union of India                                                 ....Appellant  

Versus

Ibrahim Uddin & Anr.                               ....Respondents

J     U     D     G     M     E     N     T   

Dr.     B.     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 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 declaration of title  

of the ownership in respect of  the suit property.

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2. Facts and circumstances giving rise to this appeal are:

A. Plaintiff/respondent no.1-Ibrahim 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 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/respondent no.1 being the only heir (descendant) of  

Smt. Hasin Begum and Zafaruddin became the absolute owner of the  

land after the death of his mother Smt. 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 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.

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B. The defendant no.1/appellant filed the written statement  

denying the averments and ownership of the plaintiff/respondent  

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 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 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 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.

D. Aggrieved, the plaintiff/respondent no.1 preferred the first  

appeal before the District Judge, Agra.  During the pendency of the  

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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 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  

15.10.1999 wherein the first appellate Court came to the conclusion  

that Maratha Government had made the gift of land in favour of  

plaintiff’s 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. 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 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.  

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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 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  

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 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.

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  

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recorded any finding that none of them was, in fact, a substantial  

question of law, rather the appeal has been decided placing reliance  

on the Will, which was liable to be ignored altogether and making  

reference to the record of the 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.

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 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.  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.

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Presumption     under     Section     114(g)     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) 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. 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;  M/s. Bharat  

Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024;  

Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and  

Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011)  

9 SCC 126).

7. However, in Mt. Bilas 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 considers  

irrelevant; if the other litigant is dissatisfied, it is for him to apply for  

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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.   

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 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. (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 down  

by this Court in Gopal 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.  

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10. In Mahant Shri Srinivas Ramanuj Das v. 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 not produce it, adverse inference  

may be drawn:   

“It is true that the defendant-respondent also did  not call 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 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 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 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 to order them to  produce accounts and they had failed to produce  them after admitting that Basekhi Singh used to  

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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.”

(See also: Ravi Yashwant Bhoir v. District Collector, Raigad &  

Ors., AIR 2012 SC 1339).  

12. In  Smt. Indira Kaur & Ors.  v.  Shri Sheo Lal  Kapoor,  

AIR  1988  SC 1074,  the  lower  courts  drew an  adverse  inference  

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 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 such a person for not producing the Pass Book etc. cannot be  

drawn.  

13. In Mahendra L. Jain & Ors. v. Indore Development  

Authority & Ors., (2005) 1 SCC 639, this Court held that mere  

non-production of documents would not result in adverse inference.  

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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.   

14. In Manager, R.B.I., 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 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  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 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”

(See also: A. Jayachandra v. Aneel Kaur, AIR 2005 SC 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).  

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15. Order XI CPC contains certain provisions  with the 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 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 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 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 discovery or inspection of documents, he shall, if he is a plaintiff,  

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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 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 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 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 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 inference for  

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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 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. Such  

presumption is permissible, if other larger evidence is shown to the  

contrary.    

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 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 first appellate Court or the High Court to  

draw any adverse inference against the appellant/defendant no.1.

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Admissions:

18. The first appellate court while dealing with the issue of  

admission and proof of documents held as under:

“The plaintiff has produced  will  dated l.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 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)

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.  

      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 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  

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be deemed to have been admitted if not denied after service of  

notice to 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 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 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 Balajiwale v. Gopal  

Vinayak Gosavi & 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;  Sushil Kumar v.  

Rakesh Kumar, AIR 2004 SC 230;  United Indian Insurance Co  

Ltd. v. Samir Chandra Choudhary., (2005) 5 SCC 784; Charanjit  

lal Mehra & Ors v. Kamal Saroj Mahajan & Anr., AIR 2005 SC  

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2765; 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 it had been  

made under a mistaken belief. While deciding the said case reliance  

has been placed upon the judgment in Slatterie 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.”   

22. In L.I.C of India & 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.”

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 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  

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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.  

 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 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 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  

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  

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hearing, which are known as judicial admissions or stipulations  

dispense it with proof.  Admissions 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  

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.  

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 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, 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  

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is only a judicial discretion circumscribed by the limitation specified  

in the rule itself.   (Vide:  K. Venkataramiah v. A. Seetharama  

Reddy & 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).   

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 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 Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed  

Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).   

27. Under Order XLI , 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. This provision does not entitle  

the appellate Court to let in fresh evidence at the appellate stage  

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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 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 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 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.  

(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).

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"  

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within the meaning of this rule. The mere fact that 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 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.

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 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  

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.  

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32.      The reasons need not be recorded in a separate order provided  

they are embodied in the judgment of the appellate 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 evidence, is not enough comp1iance 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 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 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 conclusion.  It  

introduces clarity in an order and without the same, the order  

becomes lifeless. Reasons substitute subjectivity with objectivity.  

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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 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 1794; State of Uttaranchal & Anr. v. Sunil Kumar  

Singh Negi, 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.  

Modern Cooperative Group Housing Society Limited & Ors.,  

(2010) 13 SCC 336).  

34. In The Land Acquisition Officer, City Improvement  

Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 1976 SC  

2403, while dealing with the issue, a three judge Bench of this Court  

held as under:  

“We are of the opinion that the High Court should  have recorded its reasons to show why it found the  admission of such evidence to be necessary for  some substantial reason. And if it found it  necessary to admit it an opportunity should have  been given to the appellant to rebut any inference  arising from its insistence by leading other  evidence.”                                    (Emphasis added)

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A similar view has been reiterated by this Court in Basayya  

I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108.

35. A Constitution Bench of this Court in K. Venkataramiah  

(Supra), while dealing with the same issue held:

“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 unable to  persuade ourselves that this provision is  mandatory.”

   (Emphasis added)

In the said case, the court after examining the record of 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.

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 allowed to be  

permitted on record such application may be allowed.

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          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 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 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 that the application filed comes within the four corners 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.  However, the application should not  

be moved at a belated stage.    

Stage     of     Consideration     :

38. An application under Order XLI 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  

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have any relevance/bearing on the issues involved.  The  

admissibility of additional evidence does not depend upon the  

relevancy to the issue on hand, or on the fact, whether the applicant  

had an opportunity for adducing such evidence at an earlier stage or  

not, but it depends upon whether or not the Appellate Court requires  

the evidence sought to be adduced to enable it to pronounce  

judgment or for any other substantial cause. The true test, therefore  

is, whether the Appellate Court is able to pronounce judgment on the  

materials before it without taking into consideration the additional  

evidence sought to be adduced. Such occasion would arise only if on  

examining the evidence as it stands the court comes to the  

conclusion that some inherent lacuna or defect 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).

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 O.41,   R.27 are clearly not intended to allow a litigant   who has been 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   

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discretion  is  not  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 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 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 important bearing on a main   issue in the case…”                    (Emphasis added)

 (See also:  Indirajit Pratab Sahi v. Amar Singh,  AIR 1928 P.C.  

128)

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  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 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)

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41. Thus, from the above, it is crystal clear that 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 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 a product  

of total and complete non-application of mind, as to whether such  

evidence is required to be taken on record to pronounce the  

judgment or not, remains inconsequential/inexecutable and is liable  

to be ignored.  

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 15.10.1999.   In view  

of law referred to hereinabove, 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:  

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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 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 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?

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  

illegality while accepting the Will dated  

1.3.1992 filed on 28.4.1999 without its proof by  

plaintiff?

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The High Court admittedly did not answer any of them, though  

had the question Nos. 2, 3 and 4 been decided, the 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 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 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.  

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 by the proviso  

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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 seeking  

consequential relief.  In the 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 framed a substantial question on this point  

but for unknown reasons did not consider it proper to decide the  

same.   

Section     100     CPC     :   

47. Section 100 CPC provides for a second appeal only 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 of  

law” and observed as under :

  “The word ‘substantial’ prefixed to ‘question of  law’  does not refer to the stakes involved in the  

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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 decision in the  lis 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 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 question of law arises in a case.”                                                        (Emphasis added)

Similarly, in Sir Chunilal V. Mehta & Sons Ltd. v.  

Century 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 directly and  substantially affects the rights of the parties…..”

                                            (Emphasis added)  

49. In Vijay Kumar Talwar v. Commissioner of Income Tax,  

New Delhi, (2011) 1 SCC 673, this Court held that, a point 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  

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case, if answered either way, 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 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 all stages and  

impelling necessity of avoiding prolongation in the life of any lis."  

(See also: Rajeshwari v. Puran Indoria, (2005) 7 SCC 60).

50.  The Court, for the reasons to be recorded, may also 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 for the exercise of jurisdiction under the provisions  

of Section 100 CPC. The second appeal does not lie on the ground of  

erroneous findings of facts based on appreciation of the relevant  

evidence.  

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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 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 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 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 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 word ‘judicial  procedure’  at all. That the violation of some  principles of law or procedure must be such  

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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 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 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:-  

“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.”  

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. 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  

further held that inference from facts would be a question of fact or  

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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.  

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. (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. M/s. Kay Iron Works Pvt. Ltd.,  

AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya  

Renganathan & Ors.,  AIR 2010 SC 2685; 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 extreme perversity  

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that the authority to examine the same in extenso stands permissible  

it is a rarity rather 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 circumspection.”

Similar view has been taken in the case of Kashmir Singh v.  

Harnam Singh & Anr., AIR 2008 SC 1749.  

56. Declaration of relief is always discretionary.  If the  

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 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 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  

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question of law at the time of 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 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.

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 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 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 one Smt. Hasin Begum wife of  Zafaruddin and  

daughter of Sri Hazim Ali.  He had inherited the suit property being  

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a lone heir of Shri Hafiz Ahmed Bux  after the death of his mother  

Smt. Hasin Begum.   

In case, the plaint does not make any reference that the  

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.   

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. 1 for inspection of the record  

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.   

So far as the First Appellate Court is concerned, it placed 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  

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appellant and, therefore, an 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 appellate  

stage by moving an application under Order VI Rule 17 CPC.  

60. Relevant part of the application under Order XLI Rule 27  

CPC, reads as under:  

“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 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 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.  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. 7. That if the said paper is not taken on record the  plaintiff will be deprived from getting justice.”

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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:   

“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 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 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  

Chouhan v. C.P. Joshi,   AIR 2011 SC 1127, after placing 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;  

Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC  

3165; and State of Maharashtra v. M/s. Hindustan 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 evidence  

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is permissible to be taken on record in absence of the pleadings in  

that respect.  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.   

63. In Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 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 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 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 not have been taken into consideration  

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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 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 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 board  no.38 treasury  collectorate agra situated namner cantt., 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 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  

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  

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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, such a vague document could not be linked in the circumstances  

proving the title.

65. Appellant/defendant No.1 produced the certified copies 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:   

Sl.No. Survey No.5 Existing Entry 1.     ------    ------ 2.     ------    ------ 3.     ------    ------ 4. Area in acres 9.447 acres 5. Description Agricultural land 6. Class B-4 7. By whom managed Military Estate Officer 8. Landlord Govt. of India 9.    ------    -------  10.    ------    -------

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 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  

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made among the ancestors of plaintiff/respondent No.1 in 1819  

would not be a conclusive 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 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  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.”

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 the Evidence 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. Kamla Verma, (2010) 13 SCC 511).

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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.

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.  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:

(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.  

(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 the  

pedigree produced by him.

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(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  

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  

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 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 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 does not contain any signature/thumb impression of  

any lessee and also the tenure of the lease has not been mentioned  

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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 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, 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 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 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  

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 a finding on it.    

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(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 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 document is taken on record, the document as well as the  

content thereof would be 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.  

(xii) The High Court committed a grave error in not 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 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,  

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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 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) 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  

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 in this respect  nor he filed any application under Order  

XI CPC submitting any interrogation or for inspection or production  

of document.  

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(xviii) The appellate courts have decided the appeals in  

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, 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.  

                                                          ....…………….....................J.                                              ( Dr. B.S. CHAUHAN )

                                                          .…………............................J.                  ( DIPAK MISRA )  New Delhi,           July 17, 2012

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