Ashwani Kumar Srivastava v. Akhilesh Srivastava

9. Though PW 2 appeared from the Sub-Registrar Office and deposed that the Sale Deed dated 27th October, 1995 was registered on 16th May, 1996, it has clearly come in the deposition of the said witness that only the first three pages of the said Sale Deed bears the signature and thumb impression of Smt. Shakuntala Devi, i.e., mother of the parties. The last page of the Sale Deed did not bear any signature/thumb impression of the party. Further, the said witness further deposed that on the photograph of the appellant herein, signatures were put after erasing by fluid. The deposition of PW 2, Shri Avtar Singh, LDC, Sub-Registrar Office, Seelampur, is reproduced as under: CS No, 212/13 09-09-2015 PW[2] Statement of Sh. Avtar Singh, LDC, Sub-Registrar Office, Seelampur, DC Office, Nand Nagar, Delhi (Recalled for further cross examination after 19-2-2015) On SA x x x x x By Ms. Shalu Jain, Ld, Counsel for defendant. I am the summoned witness and have brought the summoned record of sale deed dated 27-10-1995. Copy of which is already on record and the same is Ex. PW1/B. It Is correct that at the time of registration of the sale deed both the parities must be present i.e., seller and purchaser have to present before the concerned Sub-Registrar. I do not have personal knowledge regarding the signature of both parties on the sale deed. The original copy of the registered document had been given to the purchaser. …….. It is correct that the last page of the sale deed did not bear any signature of the party. It is correct that on photographs of male signatures was put after erasing by fluid at point B. The said document was registered on 16-5-1996. It is correct that the said document neither execute nor registered in my presence. It is wrong to suggest that the said document was not registered in the office of Subin the office for the registration of the sale deed. It is wrong to suggest that the document Ex. PW1/B are different from the record brought by me. (Emphasis Supplied)

10. The appellant also during the course of his examination before the Trial Court admitted that the Sale Deed produced before the Trial Court did not bear signature of his mother on the last page. The deposition of appellant before the Trial Court in this regard, is reproduced as under: It is incorrect to say that I was not self employed and that I had no earnings at that time of sale deed. It is true that Ex. PW-1/B does not bear the signature of my mother on the last page (The discrepancies in the document may be pointed out by the defence at the time of final arguments since the documents speaks itself. I have lodged the complaint with regard to the theft mentioned in para NO. 5 of my affidavit and I have produced documents also. It is incorrect to say that the documents do not relate to the said. It is incorrect to say that no sale deed was executed and that is why, I did not file the proper chain of documents. There is no power supply to the suit property at present. It is incorrect to say that I am deposing falsely.

11. Thus, it is manifest that the last page of the Sale Deed did not contain the thumb impression or signature of Smt. Shakuntala Devi. Therefore, the said alleged Sale Deed, even though shown to be registered, was not a proper instrument, and validity of which, could not be presumed. This is especially so, when it has come on record that Smt. Shakuntala Devi, mother of the parties, who allegedly executed Sale Deed in favour of the appellant, had herself filed a suit for possession against the appellant herein. Submissions in this regard, as recorded in the impugned judgment, are

9. In reply to this, counsel for defendant pointed out towards para 3 of plaint. Ld. Counsel for defendant also pointed out towards the cross examination of PW-1 that last page of sale deed Ex.PW1/A does not bears the signature of executor/mother of the parties and no satisfactory answer is given on behalf of plaintiff on this point. It is also submitted on behalf of defendant that plaintiff was not able to collect the required money for execution of the sale deed in his favour. It is also submitted on behalf of defendant that mother of the parties has also filed a suit for recovery regarding the property in question. It is further submitted on behalf of defendant that no satisfactory answer is given on behalf of plaintiff for not producing the original sale deed.

12. In his cross examination, the appellant herein admitted that his mother filed a suit against him. Deposition of appellant as PW 1 during his cross examination, is reproduced as under: It is incorrect to say that my mother did not execute any sale deed in my favour. It is true that my mother had filed a suit against me. It is true that I have not filed the original sale deed. It is incorrect to say that I was major at the time of the sale deed. It is incorrect say that my DOB is 04/08/1980. I took a driving licence which I have lost. My D.O.B. according to D.L. is 20.04.1974.

13. The appellant did not produce his mother as witness during the course of the trial, nor produced any of the attesting witnesses, who allegedly signed the said Sale Deed, or were present as attesting witnesses, when the Sale Deed was being executed or signed. Furthermore, PW 2, i.e., Avtar Singh, Sub-Registrar also deposed to the effect that he was not present when the Sale Deed in question was executed by the parties. Therefore, the reliance on the deposition of the Sub-Registrar by the appellant, to prove the validity of the Sale Deed, who admittedly himself, was not present when the said Sale Deed was being executed, is futile and does not establish the fact of execution of the alleged Sale Deed.

14. Thus, when doubt had been created as to the veracity of the Sale Deed executed by Smt. Shakuntala Devi in the absence of her thumb impression or signature on the last page of the said Sale Deed, in order to dispel any doubt, the appellant was enjoined upon to produce cogent evidence to establish the veracity and credibility of the said Sale Deed, which the appellant failed to do.

15. It is to be noted that though it was the case of the appellant that the original Sale Deed had been mortgaged with a third person in lieu of a loan having been taken from him, the said person was never called as a witness before the Trial Court to produce the original Sale Deed. It is only during the course of pendency of the present appeal that application no. C.M APPL. 40511/2025, has been filed by the appellant under Order XLI Rule 25 and 27 of Code of Civil Procedure, 1908 (“CPC”), to produce the original Sale Deed as additional evidence before this Court.

16. It is trite law that it is not permissible to take on record any additional evidence without following the procedure under Order XLI Rule 27 of CPC (See: H.S. Goutham Versus Rama Murthy and Another, (2021) 5 SCC 241, Para 37). Thus, it would be apposite to reproduce Order XLI Rule 27 of CPC in this regard, which reads as under:

27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

17. Perusal of the said provision brings forth that it is a pre-requisite condition under Order XLI Rule 27 of CPC for bringing on record any document for additional evidence, that the same is produced after exercise of due diligence on part of the party seeking to bring on record the additional evidence, especially, at a belated stage. Thus, the Supreme Court in the case of Union of India Versus Ibrahim Uddin and Another, (2012) 8 SCC 148, held as follows:

48. To sum up on the issue, it may be held that an 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 conditions 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.

18. In the present case, the appellant has attempted to justify the producing of the original Sale Deed at this belated stage, during the pendency of the present appeal on the ground that the appellant has repaid his loan in the second week of December, 2019, and thereafter, received the original Sale Deed from the said third party after repaying the loan. Even though in the aforesaid application it is stated that the appellant repaid his loan in the second week of December, 2019, there is no satisfactory explanation as to why the purported original Sale Deed was not produced before this Court till the year 2025.

19. The only explanation for the delayed filing of the application in question is that the same was filed on 24th December, 2019, and a Diary Number was generated towards the same, however, after filing of the application the matter was referred to mediation, and thereafter the appellant came to know that the application was not registered.

20. The said argument to circumvent the delay is not acceptable to this Court. Even if the appellant‟s argument is to be taken as true on the face of it, it is to be noted that vide order dated 11th May, 2022, it was recorded that there was no possibility of a settlement between the parties. Therefore, despite the mediation having failed in the year 2022, the appellant belatedly filed the application for taking on record the original Sale Deed after almost three years even from the date of the order recording failure of settlement talks. Therefore, the justification provided by the appellant, even if assumed to be true, makes it evident that the appellant has not exercised due diligence to bring on record the additional evidence, i.e., the purported original Sale Deed.

21. The Supreme Court in the case of State of Karnataka and Another Versus K.C. Subramanya and Others, (2014) 13 SCC 468, while holding that that the condition precedent for allowing a party to produce additional evidence at the stage of appeal under Order XLI Rule 27 of CPC, which is in the knowledge of the appellant, is that the appellant not just exercises due diligence before the appellate Court, but has to also show that he exercised due diligence before the Trial Court to produce the additional evidence or corroborate the validity of the same. The production of the additional evidence that was in the knowledge of the appellant, since the institution of the suit, cannot be allowed upon the leisure and the will of the appellant. Thus, it was held as follows:

4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows: ―27. (1)(a)*** (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) ***‖ On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.

5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will. xxx xxx xxx

22. The appellant in the present case had several opportunities before the Trial Court and before this Court to produce the purported original Sale Deed. However, the appellant made no attempts before the Trial Court to bring on record the purported original Sale Deed or even corroborate the justification given by him that a third party was in possession of the same. The appellant could have overcome this burden by merely calling for the said third party to depose to the effect that the said Sale Deed was in possession of the third party, which was not done.

23. Further, it is beyond the prerogative of this Court to supplement evidence filed before the Trial Court. When a party had ample opportunity to produce evidence and failed to do so or elected not to do so, the evidence cannot be admitted in appeal. Thus, the Supreme Court in the case of Union of India Versus Ibrahim Uddin (Supra), held as follows:

39. 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 [AIR 1969 SC 101].)

24. Moreover, the appellant has neither before the Trial Court, nor before this Court, brought on record any evidence or document to show that the subject property was indeed mortgaged by him or that even a loan was given to him in that regard by the third party. Therefore, a mere statement by the appellant, without any corroboration cannot be accepted by this Court.

25. Thus, it is apparent that the appellant has failed to exercise proper due diligence to bring on record the purported original Sale Deed.

26. Even if this Court traverses beyond the said finding, nevertheless, the document produced by the appellant is produced under dubious circumstances and even the validity and genuineness of the purported original Sale Deed is in doubt.

27. It is to be noted that the mother of the parties was alive during this period and expired only on 26th August, 2022, during the pendency of the present appeal. The appellant did not produce the alleged original Sale Deed when his mother was alive and has sought to place the same on record only now. The action of the appellant, being itself without any justification or explanation, profoundly supports the existence of doubtful circumstances in attempting to bring on record the purported original Sale Deed.

28. Another dubious circumstance is the fact that the appellant signed the pleadings in the present appeal in Hindi and also signed the pleadings before the Trial Court in Hindi, while his signatures on the purported Sale Deed are in English. The same creates a doubt as the appellant in his cross examination before the Trial Court has admitted that he cannot read English. On account of the doubtful and suspicious circumstances with regard to execution of the purported Sale Deed, this fact assumes importance. The deposition of appellant in this regard, reads as under: I am studied upto 8th standard. I cannot read English. I have signed Ex. PW-1/1 after having understood the contents.

29. It is also to be seen that there are major discrepancies in the Sale Deed filed before the Trial Court, which was the copy of the purported registered Sale Deed as produced by PW 2, and the original Sale Deed, which has been produced before this Court. The original Sale Deed as was produced before this Court was perused and a scanned copy of the same was retained by the Court and the purported original Sale Deed was returned to the appellant.

30. While it is an admitted fact that in the Sale Deed produced before the Trial Court, the last page of the said Sale Deed did not contain the thumb impression or signature of the mother of the parties, however, in the purported original produced before this Court, the thumb impression and signature of the mother were there on the last page. No explanation has been given as to how and when the thumb impression or signature of the mother appeared subsequently on the last page of the purported Sale Deed, when the same was missing in the copy of the registered document. The last page of the copy of the purported Sale Deed, as produced before the Trial Court, is

31. The last page of the purported original Sale Deed as produced before this Court, is reproduced as under:

32. Further, there is also discrepancy in the manner, signatures occur on the photograph of the appellant in the Sale Deed produced before the Trial Court and the purported original Sale Deed produced before this Court.

33. The first page of the Sale Deed produced before the Trial Court, is

34. The first page of the purported original Sale Deed produced before this Court is reproduced as under:

35. Perusal of the aforesaid Sale Deeds, as produced before the Trial Court and before this Court, show that the signatures of the appellant in the Sale Deed produced before the Trial Court, occur on his photograph. However, the placement of the signatures of appellant on the purported original Sale Deed produced before this Court is different, and the signatures start from left hand side of the photograph. Further, the letter „A‟, with which the signature of the appellant begins, is outside of the photograph, on its left side. Thus, it is apparent that there are discrepancies, which in the facts and circumstances of the present case, raise doubts about the authenticity, and veracity of the alleged Sale Deed.

36. In addition, another glaring anomaly in the evidence of the appellant is that the appellant has failed to produce any document to establish that the respondent was his licensee, though, it had been averred by the appellant that he had permitted the respondent to stay in the subject property as a licensee. No license agreement or document or any other evidence was produced before the Trial Court which would suggest that the occupation of respondent in the subject premises was as a licensee of the appellant.

37. Further, it is the case of the appellant that he had paid a sum of Rs. 75,000/- in cash to his mother as consideration for sale of the subject premises. However, no evidence or documents as regards the payment of the said amount was produced before the Trial Court. No receipt or other evidence was produced to establish payment of any such amount to his mother regarding the alleged sale consideration. There is no proof on record as to how and in what manner, the money was paid in cash by the appellant to his mother, and what was the source of said amount purportedly paid in cash. Nothing has been averred or proved before the Trial Court in this regard.

38. Moreover, the appellant did not make any attempt to seek summons or depose parties, such as his mother, i.e., alleged seller/executant, attesting witness and the third party who was allegedly in possession of the purported original Sale Deed, all of whom could have verily attested to the veracity and validity of the purported original Sale Deed. Therefore, in these facts and circumstances, the appellant has neither before the Trial Court, nor before this Court, been able to prove that he is the owner of the subject property.

39. Though the appellant claimed to be owner of the property, on a pointed query by this Court, during the course of hearing, learned counsel for the appellant admitted that the appellant did not stay in the subject property. This again raises uncertainty in the case put forth by the appellant regarding his alleged ownership, especially, considering the surrounding facts and circumstances of the present case.

40. By the impugned judgment, the Trial Court held that the appellant failed to prove his ownership over the subject property, by failing to discharge the burden of proof on him to establish the authenticity of the alleged Sale Deed. In this regard, the Trial Court held as follows: xxx xxx xxx

41. Therefore, when the appellant has failed to prove his ownership over the subject property and has been unable to establish his ownership in any manner, the premise of filing the suit for possession is not fulfilled. The case of the appellant for seeking possession of the property in question was on the premise that the appellant was owner of the property in question. However, when the appellant has not been able to establish the said fact, there is no question of granting any relief to the appellant with regard to his suit for possession.

42. Resultantly, this Court finds no error in the findings of the Trial Court.

43. Considering the detailed discussion hereinabove, no merit is found in the present appeal. The same, along with the pending applications, is accordingly dismissed.

MINI PUSHKARNA (JUDGE) SEPTEMBER 10, 2025