(1) This second appeal is directed against the judgment of the subordinate judge of nellore confirming that of the district munsif, nellore, dismissing o. S. No. 80 of 1949. The appellants filed a suit for recovery of possession of the plaint a scheduled property and to directt he defendants to pay him rs. 72 by way of rent for three years together with interest thereon and also for a direction to render an account of future rents or profits till the date of delivery of possession. The suit was based on a sale deed executed by one bhima sankarareddy in favour of the plaintiff on 1st june, 1945, for a consideration of rs. 400. It is recited in this sale deed that the vendor acquired title thereto under exhibit a - 2 dated 29th may, 1945. In exhibit a - 2, there is a reference to the property having been purchased from one mr. Balaramireddy.
(2) The suit was contested mainly on the plea that raghavareddy, the alienor under exhibit a - 2 had no title to the suit property and that it really belonged to the defendants thought it was purchased in the name of one lakshmi devamma in the year 1941. According to the defendants, the property was put in the name of the said lakshmi devamma having regard to the relationship that existed between them. As the plaintiff could not prove the title of raghavareddy to the suit property the trial court dismissed the suit. Though in its opinion the defendants have not make out their case that the property was originally purchased for their benefit in the name of lakshmidevamma.
(3) The lower appellate court agreed with this conclusion, on appeal by the aggrieved plaintiff, with the result that the dismissal of the suit was confirmed by the appellate court. This second appeal is brought by the plaintiff who is dissatisfied with this judgment. To show that the plaintiff has title to this property he seeks to have some documents admitted in this second appeal. It is not disputed that on the evidence on record the judgment of the courts below are correct. Though the defendants have not established their case of benami the plaintiff will not be entitled to succeed as it is well - established that the plaintiff could succeed only on the strength of his own title and could not depend upon the weakness in the defence.
(4) What is urged by mr. Kuppuswamy in support of the application to admit some documents by way of additional evidence is that if these documents are excluded the appellant will be deprived of a valuable right. The chief point for consideration is whether there are any grounds for admission of these documents as additional evidence in the appeal. The powers of an appellate court in this regard are controlled by the provisions of order 41, rule 27, civil procedure code. The question for consideration is whether the instant case can fall under any of the categories listed in that rule. Mr. Kuppuswamy suggested that i might admit these documents under clause (c) of rule 27. It is difficult to bring the present application within the operation of clause (c) because it cannot be postulated that these documents are necessary to enable me to pronounce a judgment. It may be that the judgment without these documents will be against the appellant but that is not the same thing as saying that they are essential to enable a court to reach a decision. In my opinion, clause (c) governs cases where the court thinks that certain documents are necessary to enable it to make up its mind.
(5) Mr. Kuppuswamy drew my attention to a judgment of a bench of the madras high court in gaddan paramasivudu v. Mulakala subbanna, (1919) m. W. N. 455. Which decided that the high court can admit additional evidence in a second appeal in order to avoid conflicting decrees being passed between the same parties and argues that additional evidence in this case could be admitted. On the other side a judgment of mr. Krishnaswamy naidu in subbaraja v. Narayana raja, a. I. R. 1954 mad. 1074. Which lays down that the second appellate court could not admit additional evidence and give its decision on a question of fact is relied on. It is stated by mr. Justice krishnaswamy naidu thus :
"apart from the decision cited, the
provisions of section 103 are sufficiently clear to exclude the operation of order 41, rule 27 and their applicability to appeals filed under order 42, civil procedure code. It is not every provision in order 41 that could be said to automatically apply to a proceeding in second appeal by virtue of order 42, rule 1 but only such provisions as may reasonably be applied having in view the provisions of sections 100 and 103, and the limited scope of the jurisdiction of the second appellate court in matters affecting questionsof facts. The proper view to be taken therefore is that it is not competent to admit additional evidence in second appeal."
(6) It seems to me that mr. Justice krishnaswmy naidu has stated the proposition very broadly and is opposed to the ruling of the bench decision mentioned supra. The bench judgment is not even noticed in the judgment of mr. Justice krishnaswamy naidu. I am in respectful agreement with the ratio of paramasivudu v. Mulakala subbanna. I do not think there is anything either in section 103 or in order 41, rule 27, civil procedure code, which excludes the applicability of the latter provision to second appeals. The terms of rule 27 are general in application and my view is that in appropriate case it is open to this court in second appeal to admit additional evidence. It may be that this court will be reluctant to adopt the course indicated in that rule unless there are special circumstances. But it is different to say that it is not competent for a second appellate court to let in additional evidence under any circumstances.
(7) However, that does not, in this case, help the appellant. I have already stated that clause (c) of that rule cannot apply to this case, nor can the appellant seek to bring it under clause (b). It is not even suggested that, despite the exercise of due diligence, these documents were not within his knowledge and therefore he could not produce them. The written statement raises the plea that the vendor of the plaintiff had no title to the suit property. So he knew that he had to prove the title of his vendor, but yet he had not chosen to do so. He did not adopt this course even in the lower appellate court. Having slept over this matter for several years, the appellant now thinks of moving this court for the admission of additional evidence. This court will not ordinarily admit documents which will necessitate the remand of the case to the trial court for a rehearing and reopening of the suit. I do not think there would be any justification for me to grant the request in this behalf.
(8) In these circumstances the position for admission of additional evidence is dismissed. No order as to costs in this petition. The consequence is that the appeal also has to be dismissed with costs. Appeal and petition dismissed.