# UNION OF INDIA v. IBRAHIM UDDIN & ANR

- **Citation:** [2012] 8 S.C.R. 35
- **Court:** Supreme Court of India
- **Decided:** 2012-07-17
- **Case number:** Civil Appeal No. 1374 of 2008
- **Bench:** Dr. B.S. Chauhan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-ibrahim-uddin-anr-28513
- **Pages:** 60

## Headnote

Code of Civil Procedure, 1908:
A
B
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 nonapplication 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 t

## Text

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[2012] 8 S.C.R. 35
UNION OF INDIA
v.
IBRAHIM UDDIN & ANR.
(Civil Appeal No. 1374 of 2008)
JULY 17, 2012
[DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]
Code of Civil Procedure, 1908:
A
B
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 nonapplication 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
A
B
c
D
E
F
38
SUPREME COURT REPORTS
f2012] 8 S.C.R.
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);
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/
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
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
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
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 forefathers 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
H
year 1819; that the first appellate Court had no occasion
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
HELD:
Presumption under Section 114(gl of the Evidence Act :
E
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 factsituation, 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]
c
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
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.
H
3.1. The general principle is that the Appellate Court
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; 70A-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; 728-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 1155H 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]
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
E
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.
4 7
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
0
Mysore State Road Transport Corporation v. Mirja Khasim Ali
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
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
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,
such a vague document could not be linked in the
circumstances proving the title. [Para 64] [87-F; 88-B-C]
D
E
F
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
0
evidence of title. [Paras 65, 66] [88-D; 89-B-C, F-G]
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
0
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
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
F
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
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
B and decree passed by trial court is restored. [Para 70] [94C]
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
H
2004 (6) Suppl. SCR 242 relied on
Para 13
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
1969 SCR 254
relied on
Para 28
G
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
B
2008 (1) SCR 1155
relied on
Para 34
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
E
2010 (14) SCR 499
relied on
Para 49
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.