SAHIDULLAH MUNSHI,J. - (1.) Despite service no one appears for the opposite parties. This revisional application is directed against order No.37 dated 21st August, 2007, passed by the learned Additional District and Sessions Judge, Fast Track Court (1), Alipore, in Title Appeal No.143 of 2002. Defendants/appellants are the petitioners before this Court challenging an order rejecting the defendants'/appellants' prayer for accepting additional evidence under the provisions of Order XLI Rule 27 of the Code of Civil Procedure. In this revisional application it has been stated by the petitioner that petitioner no.1 originally known as Arabinda Sangha, which has been in possession of a plot of land including a 'doba' (pond) comprised in premises no.13D, Naktala Road under Jadavpur Police Station, Calcutta - 700047 since 1952. The petitioner no.1 had been possessing the said land by constructing a club -room thereon and by exercising different acts of possession such as, using the said land as playground, for performing cultural programmes, rearing fishes in the said pond, etc. The said Arabinda Sangha had been in possession of the said property adversely, openly and without any interference from anybody for over 12 years and thus became the owner of the said property by adverse possession. The said Arabinda Sangha was, subsequently, registered under the Societies Registration Act and was renamed as Naktala Arabinda Sangha. It has been further submitted that the respondents/opposite parties as plaintiffs instituted a suit for recovery of possession from the defendants (present petitioners) and the defendants/respondents proforma opposite parties in this revisional application and for permanent injunction and mesne profit, in the Court of the learned 1st Munsiff, now designated as 1st Civil Judge (Junior Division) at Alipore being Title Suit No.6 of 1983. The said suit was renumbered as Title Suit No.149 of 1999 on transfer to the Court of learned 6th Civil Judge (Junior Division) at Alipore. The said suit was contested by the defendants filing written statement. The petitioners/defendants also cross -examined plaintiffs' witness at the hearing of the suit in the year 1995.
(2.) It is the case made out by the petitioners now that learned advocate for the petitioners engaged in the said suit fell ill and could not contact the person who was looking after the said case on behalf of the petitioners as a result whereof the petitioners being unaware of the proceedings of the said case and could not take steps in the said suit which was, ultimately, decreed uncontested in favour of the plaintiffs in 2002. After coming to learn of the ex parte judgment and decree dated 18th March, 2002, passed by the learned 6th Civil Judge (Junior Division) at Alipore, in Title Suit No.149 of 1999, the defendants/petitioners preferred an appeal being Title Appeal No.143 of 2002 in the Court of the learned District Judge at Alipore which is presently pending before the learned Additional District and Sessions Judge, Fast Track Court (1) at Alipore. A copy of the written statement which was filed by the defendants/petitioners in the Court below, has been annexed to the revisional application wherefrom it appears that it is the main contention of the defendants that the plaintiffs did not acquire any right, title and interest on the basis of the plaintiffs' vendor by the alleged Deed executed in November 19, 1962 and further that the suit property was a public burial ground. It has been further claimed that the defendant club, Naktala Arabinda Sangha, was in possession of the entire Schedule 'A' property except the portion occupied by one Sri Brojendra Nath Chakraborty, the vendor of the plaintiff, since 1952. It is the contention of the defendants that by allowing possession they have acquired good title over the property by adverse possession. It is the contention of the petitioners that, although, they had sufficient documents in support of their contention and which were very much material in the proper adjudication of the issues involved in the suit, nothing could be produced before the Trial Court. It has been submitted before this Court that the documents which the petitioners rely upon, are of immense importance to prove their defence case and also to prove their case for adverse possession over the suit property. The petitioners, therefore, filed an application under Order XLI Rule 27 of the Code of Civil Procedure annexing those documents which they rely upon. The application under Order XLI Rule 27 of the Code of Civil Procedure has been annexed to this revisional application from which it appears that it is the specific plea that since the learned advocate, who was conducting the case on behalf of the petitioners, fell ill and could not conduct the defence case, the petitioners were unaware of the proceedings which was, ultimately, decreed uncontested and ex parte in favour of the plaintiff. As a result of which they could not produce any document at the trial, although, those documents, according to them, were lying with them. On perusal of the said application and the list of documents mentioned therein it appears that they have been relying upon certified copies of the record of rights pertaining to C.S. 'Khatian' No.36, C.S. 'Dag' No.113. Before this Court the said documents have also been produced for perusal. From the C.S. Record of Rights it appears that the suit plot was recorded in the name of various persons. The suit plot is 'Dag' No.112 under 'Khatian' Nos.1, 2 and 3 measuring 40 decimals of land and also a tank measuring 46 decimals of land recorded in Settlement 'Dag' No.113 under 'Khatian' No.36 in 'Mouza' Naktala totalling 86 decimals in one compact block, now premises no.13D, Naktala Road, Calcutta - 700047. On a perusal of the record of rights it appears that 'Dag' No.112 in the C.S. Record of Rights, was recorded as a burial ground measuring 40 decimals of land. So far 'Dag' No.113, no document has been produced with the said application under Order XLI Rule 27, CPC. So far the record of rights is concerned, this is, no doubt, a public document but from the said document possession of the defendant does not transpire and the record of rights is only in respect of a portion of the suit property. Other documents relied upon are of private nature except a certificate of registration issued by the Registrar of Firms and Societies whereby Naktala Arabinda Sangha was registered as a club in the year 1983. Few other documents have been issued by the State officials permitting the club to hold 'Durga Puja'. The said documents are of 1999, 2002 and 2003, i.e., after the ex parte decree was passed.
(3.) The said application under Order XLI Rule 27 was taken up for consideration by the learned Court below and by the order impugned rejecting the same holding, inter alia, that the application has been filed not in conformity with the provisions under Order XLI Rule 27. It is necessary to quote the provisions under Order XLI Rule 27 of the Code of Civil Procedure: - "Order XLI Rule 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." ;