Case Background
The dispute arose from a house at Gandhi Chowk, Kishanganj. The plaintiffs, who are the present respondents, filed Title Eviction Suit No. 2 of 2009 before the Court of Munsif-II, Kishanganj.
They claimed they were the landlords of the property mentioned in the plaint schedule. According to them, the father of defendant no. 1 was engaged as their purohit (family priest). In return, he was allowed to live in the suit house as a licensee on nominal rent.
The plaintiffs stated that in 2006, defendant no. 1 shifted from the suit house to some other premises. They then took back possession of the suit house. By then, the building had become dilapidated. The plaintiffs even applied before the Municipality for permission to demolish the structure and build a new house on the same land.
They alleged that on 08.08.2008, defendants 1 and 2 forcibly broke open the lock of the suit house, entered the premises, and took possession without their consent. On these allegations, the plaintiffs sought a decree declaring the defendants as trespassers from 08.08.2008, and a direction to vacate and hand over vacant possession within a time fixed by the Court.
The defendants (present petitioners) contested the eviction suit by filing a written statement. They denied that they were trespassers or mere licensees.
They asserted that the father of defendant no. 1 had been initially inducted as a tenant in the suit house by the brother of plaintiff no. 1. Later, on 18.01.1977, this brother allegedly executed a gift deed in favour of the father of defendant no. 1 with respect to the same property. Relying on this, the defendants claimed that they had been living in the premises as owners since 1977, not as tenants or licensees.
After trial, the learned Munsif-II, Kishanganj, by judgment and decree dated 30.01.2013, decreed the suit. The defendants were directed to vacate the suit house within 60 days.
During the trial, on 26.11.2012, the defendants had filed a petition seeking permission to adduce further evidence and to get themselves examined as witnesses. This application was refused, and the suit was finally decided on 31.03.2013.
Aggrieved by the judgment and decree dated 31.03.2013, the defendants filed Title Appeal No. 13 of 2013 before the District Judge, Kishanganj. The appeal later came to be heard by the learned Additional District Judge-II, Kishanganj, as the first appellate court.
In the pending appeal, on 11.09.2014, the defendants filed a petition under Order 41 Rule 27 of the Code of Civil Procedure. They requested permission to examine themselves as witnesses and to produce the gift deed dated 18.01.1977 as additional evidence.
The plaintiffs filed a rejoinder on 10.10.2014 opposing this move. By order dated 02.12.2016, the learned Additional District Judge-II, Kishanganj, rejected the defendants’ petition under Order 41 Rule 27.
Against this rejection of additional evidence, the defendants approached the Patna High Court in Civil Miscellaneous No. 208 of 2017, seeking to quash the order dated 02.12.2016.
What the Court Examined and Decided
The Patna High Court, through Hon’ble Mr. Justice Arun Kumar Jha, heard the matter at the admission stage itself. Both sides were represented: counsel for the petitioners (defendants in the suit) and senior counsel for the respondents (plaintiffs in the suit).
The core question before the High Court was narrow. It was not deciding the main eviction dispute. Instead, it was examining whether the first appellate court was wrong in refusing to allow additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
Counsel for the petitioners argued that the appellate court had misunderstood the scope of Order 41 Rule 27. According to them, the suit property had been gifted to the father of defendant no. 1 in 1977 by the landlord through a written gift deed dated 18.01.1977. Though the deed was unregistered, they claimed it had been reduced in writing and was crucial to show their ownership.
They further submitted that in paragraph 11(iii) of the written statement, they had clearly pleaded about this gift deed. Therefore, the appellate court’s observation that there was no pleading regarding the gift deed was, according to them, a clear error on the record.
The petitioners also tried to explain why the document had not been produced earlier. They said that the deed could not be traced in time for the trial, and despite their efforts, it was not available. They contended that the trial court had been requested to allow further evidence but had refused.
In their view, the first appellate court had taken a hyper-technical view while rejecting their petition for additional evidence. They maintained that the court should have considered whether the document was necessary to fully and properly resolve the dispute in the appeal. On this basis, they requested the High Court to set aside the appellate court’s order and allow them to produce both oral and documentary evidence.
On the other side, senior counsel for the respondents opposed the petition strongly. He pointed to the conduct of the defendants before the trial court. According to him, the order sheet showed that the defendants had been given five to six dates to produce their evidence. After granting a final opportunity, the trial court had closed their evidence.
He emphasised that the eviction suit had been filed in 2009 and the title appeal had remained pending since 2013. Allowing new evidence at this late stage would only prolong the litigation.
The respondents also questioned the value of the gift deed itself. They argued that the entire claim of the defendants was based on an unregistered gift deed relating to immovable property. As per Section 17 of the Registration Act, such a deed is compulsorily registrable. Under Section 49 of the same Act, an unregistered document that is required to be registered cannot be received as evidence for affecting immovable property. On this basis, they said that the deed had “no legal sanctity”.
Further, they noted that the defendants had not challenged the trial court’s earlier order dated 26.11.2012, by which their application for producing additional evidence at the trial stage had been rejected. That order had, therefore, attained finality. According to the respondents, the defendants were simply trying to reopen the same issue again and again, which was not permissible.
After hearing both sides, the High Court reproduced the text of Order 41 Rule 27. This rule generally bars parties from producing fresh evidence at the appeal stage, unless certain strict conditions are satisfied. These include situations where the trial court wrongly refused to admit evidence which should have been admitted, where the party despite due diligence could not produce the evidence earlier, or where the appellate court itself considers the evidence necessary to pronounce judgment or for any other substantial cause.
The petitioners relied mainly on two grounds under this rule:
First, that the trial court had refused to take their evidence on record. Second, that despite due diligence they could not produce the gift deed earlier, and therefore the appellate court should now allow it.
The High Court examined these claims in light of the circumstances recorded in the impugned order. It noted that the unregistered gift deed was being sought to be produced as additional evidence. The Court pointed out that this document had always been within the knowledge of the defendants. If it was truly crucial to their defence, they ought to have brought it on record at the earliest opportunity, including before the first appellate court.
The High Court also found from the impugned order that the trial court had already granted sufficient opportunities to the defendants to lead their evidence. Despite being given five to six dates, they did not utilise these chances. Their evidence was closed only after final opportunity.
In this background, the Court held that it was not convinced that the petitioners had been denied a fair opportunity. On the contrary, they had failed to avail the opportunities provided. Therefore, their claim of “due diligence” was not acceptable.
The Court further observed that the deed the petitioners wanted to produce was an unregistered gift deed relating to immovable property. Such a document faces “a number of restrictions for making it an admissible evidence”, as noted by the Court. This reinforced the conclusion that there was no strong reason to reopen the evidence at the appellate stage.
Considering the totality of the circumstances, the High Court held that the petitioners had not made out any ground to interfere with the appellate court’s order under Order 41 Rule 27. It concluded that there was no merit in the civil miscellaneous petition and dismissed it.
Why This Judgment Matters
This decision has important practical lessons for tenants, licensees, and anyone defending an eviction or property suit in Bihar.
First, it underlines that evidence must be produced at the earliest stage. Courts will not ordinarily allow parties to hold back key documents during trial and then attempt to introduce them in appeal, unless they can show genuine, compelling reasons and real “due diligence”.
Second, it reminds litigants that unregistered documents which are required by law to be registered may not help them in court. In this case, the entire defence of ownership rested on an unregistered gift deed of immovable property, which faces serious limits under the Registration Act.
Third, the judgment shows that the Patna High Court respects the case management decisions of trial and appellate courts when parties have been given repeated chances to lead evidence. Courts are reluctant to reopen such issues after long delays, especially in cases already pending for many years.
For people involved in eviction or title disputes, this ruling signals that timely, complete presentation of evidence and compliance with registration laws are crucial to protect their rights.
Legal Issues and Answers
- Issue: Can defendants in an eviction appeal be allowed, under Order 41 Rule 27 CPC, to examine themselves and produce an old unregistered gift deed as additional evidence when they already had multiple opportunities during trial?
Answer: No. The Patna High Court held that the defendants had sufficient opportunities at trial, failed to show due diligence, and were seeking to rely on an unregistered gift deed subject to serious admissibility restrictions, so the first appellate court rightly rejected their application for additional evidence.
Cases Cited by the Court
- The judgment does not refer to or rely upon any other reported case law.
Case Details
Case Number: Civil Miscellaneous Jurisdiction No. 208 of 2017
Case Title: Yagya Nath Pandey and Anr v. Soumendra Bahadur Singh and Anr
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Arun Kumar Jha
Date of Judgment: 01.04.2024
Citation: 2024 (2) PLJR 541
Advocates:
For the petitioners: Mr. Raj Kumar, Advocate
For respondent nos. 1 and 2: Mr. S. N. P. Singh, Senior Advocate; Mr. Surendra Prasad Singh, Advocate
Nature of the case: Civil miscellaneous petition challenging an order of the first appellate court (Title Appeal No. 13 of 2013) refusing additional evidence under Order 41 Rule 27 CPC in a title eviction suit.
Impugned Order: Order dated 02.12.2016 passed by the learned Additional District Judge-II, Kishanganj in Title Appeal No. 13 of 2013.
Relief Sought in Civil Miscellaneous: Quashing of the order rejecting the petitioners’ application to examine themselves and produce a gift deed dated 18.01.1977 as additional evidence.
Final Outcome: Civil miscellaneous petition dismissed; impugned order upheld; no permission granted for additional evidence.
Link to judgement; https://patnahighcourt.gov.in/viewjudgment/NDQjMjA4IzIwMTcjMSNO-RGVpdFoX34k=
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