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Vidyadhar Rai and anr. Vs. Khara Nand Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 3302 and 3303 of 1964
Judge
Reported inAIR1972All301
ActsCode of Civil Procedure (CPC) - Sections 100 - Order 41, Rule 27(1)
AppellantVidyadhar Rai and anr.
RespondentKhara Nand Rai and ors.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateRaja Ram Agarwal and ;Bharatji Agrawal, Advs.
DispositionAppeal dismissed
Excerpt:
.....satisfied that the rasta land was to the south of the chabutra land of kharanand rai plaintiff i. 327 of 1968 is old one as is depicted by the documents on record and so the relief for closing the wall rightly failed before the learned munsif and must also fail here'.17. the learned lower appellate court further held that from the oral as well as the documentary evidence it was fully proved that the respondent had a right of way through the gali and that the disputed land was his sehan. 18. in the result, both the appeals fail......in the lower appellate court. all the four appeals were decided by a common judgment. the two appeals filed by the appellants were dismissed, and the appeals filed by khara nand rai were partly allowed. 4. being dissatisfied, the appellants have filed the present second appeals. 5. when the appeals were pending before the lower appellate court, on behalf of khara nand rai, certain papers were filed on 9-5-1963. on the same day, after hearing the parties' counsel, the lower appellate court admitted the aforesaid documents under order xli, rule 27. civil p. c. on payment of rs. 12/- as costs. the costs were paid the same day and was accepted by the appellants. thereafter, a date was fixed for the appellants to file papers in rebuttal. no paper was filed by the appellants in rebuttal......
Judgment:

K.N. Srivastava, J.

1. These are two connected appeals, arising out of the following facts:--

Khara Nand Rai filed a suit against the appellants that the appellant had stopped 'his right of passage through the Gali by constructing a wall and had opened a door in his Sehan on which the defendants had no right of ingress and egress. Khara Nand Rai also prayed for a permanent injunction restraining the appellants from interfering in his possession over this sehan land. The other suit was filed by the appellants against Khara Nand Rai for the removal of certain constructions and injunction. The plaint allegations in one case were the defence allegations in the other.

2. As both the suits related to the same piece of land, therefore, they were consolidated and tried together.

3. The learned Munsif decreed in part the suit filed by Khara Nand Rai.

He also decreed the appellants' suit in part. Each party, therefore, filed two appeals in the lower appellate court. All the four appeals were decided by a common judgment. The two appeals filed by the appellants were dismissed, and the appeals filed by Khara Nand Rai were partly allowed.

4. Being dissatisfied, the appellants have filed the present Second Appeals.

5. When the appeals were pending before the lower appellate court, on behalf of Khara Nand Rai, certain papers were filed on 9-5-1963. On the same day, after hearing the parties' counsel, the lower appellate court admitted the aforesaid documents under Order XLI, Rule 27. Civil P. C. on payment of Rs. 12/- as costs. The costs were paid the same day and was accepted by the appellants. Thereafter, a date was fixed for the appellants to file papers in rebuttal. No paper was filed by the appellants in rebuttal. The appeals were, therefore, decided on consideration of the above documents.

6. Learned counsel for the appellants contended that the lower appellate court admitted that had these papers, which had been admitted by it under Order XLI. Rule 27, Civil P. C. been in the trial court, the judgment of the trial court might have been in favour of Khara Nand Rai. There is also a mention in the judgment of the lower appellate court that the finding arrived at by it for partly allowing the appeals filed by Khara Nand Rai and dismissing the appeals filed by the appellants was mainly based on the documents which were filed and admitted under Order XLI, Rule 27. Civil P. C.

7. Learned counsel for the appellants, therefore, contended and vehemently argued that these papers were wrongly admitted by the lower appellate court and if those papers were not admitted, the judgment of the lower appellate court would have been the same as the one delivered by the trial court

8. It has, therefore, to be seen as to whether these papers were wrongly admitted by the lower appellate court. Order XLI, Rule 27. Civil P. C. lays down that court has the power to admit additional evidence under the following conditions:--

(1) The paper was filed in the trial court and the trial court refused to admit it.

(2) The paper was such which would enable the court to pronounce the judgment.

(3) For any other substantial cause.

9. The order of the lower appellate court clearly indicates that it felt that the admission of these documents was necessary for pronouncement of the judgment. Actually, the lower appellate court did not use these words. The words used by the lower appellate court were 'they are necessary in the interest of justice'. This means that the lower appellate court felt that the admission of these documents was necessary for pronouncement of the judgment by it.

10. On behalf of the appellant reliance was placed on a decision of the Supreme Court in Arjan Singh v. Kartar Singh : [1951]2SCR258 , wherein the conditions under which papers were to be admitted under Order XLI, Rule 27. Civil P. C. were laid down. In Arjan Singh's case, the District Judge had not stated that the admission of the document was necessary for pronouncement of the judgment and, therefore, the Supreme Court held that the High Court rightly vacated the order of the District Judge admitting the additional evidence. In the instant case, there is a clear mention in the judgment of the lower appellate court that it was of the view that the admission of these documents was necessary for pronouncement of the judgment.

11. Besides this, there is yet another point which too would go to show that the appellants cannot be permitted to take this point in the second appeal. A perusal of the order of the lower appellate court would show that no objection was made by the appellants to the admission of these documents, with the result that on 9-5-1963, the date on which the application for admission of these documents was made, the order for the admission was passed on payment of Rs. 12/- as costs. Not only that no objection was raised by the appellants, but the appellants also accepted the costs which was levied on the respondent. Therefore, in my opinion, the appellants who had not objected to the admission of the additional evidence in the lower appellate court cannot be permitted to raise the question that these documents were wrongly admitted by the lower appellate court.

12. Learned counsel for the appellants next contended that acceptance of cost would not debar his clients from raising this objection. In support of his contention, reliance was placed on a decision of the Mysore High Court in J. Devaiah v. Nagappa AIR 1965 Mys 102. The Mysore case is distinguishable from the facts of the present case. In Mysore case, cost was awarded in an order which was unconstitutional. In the instant case, the order was a conditional one because the papers were admitted on payment of Rs. 12/- as costs. Therefore, the decision of the Mysore case would not be of any help in the present case.

13. On behalf of the respondent, reliance was placed on a decision of the Supreme Court in K. Venkataramiah v. A. Seetharama Reddy : [1964]2SCR35 . In this case it was held by the Supreme Court that where the document was accepted under Order XLI, Rule 27, Civil P. C. without any objection by the opposite party, it was not open to the opposite party to complain about it later on.

14. There Is a similar decision of this Court in Md. Saadat All Khan v. Ml Badala 0065/1950 : AIR1950All182 .

15. These two decisions apply on all fours to the facts of the present case because the appellants did not object to the admission of the documents. But, on the other hand, they consented to it and accepted the costs. In this view of the matter. I am, therefore, of the opinion that the lower appellate court rightly accepted the documents, as provided under Order XLI, Rule 27, Civil P. C.

16. Coming to the merit of the case, the matter in dispute is concluded by findings of fact. The lower appellate court has recorded the following finding:

'I have perused the judgment of the learned Munsif on this point and the controversial points and I am of the view that had the documents been there with the learned Munsif which have been filed before me, his finding must have been to the contrary. From the papers and the oral evidence I am satisfied that the Rasta land was to the south of the chabutra land of Kharanand Rai plaintiff i.e., to the south of the line shown in the commissioner's map prepared by Sri Jwala Prasad, however, I agree with the findings of the learned Munsif that the door of the defendant Vidyadhar Rai in Suit No. 327 of 1968 is old one as is depicted by the documents on record and so the relief for closing the wall rightly failed before the learned Munsif and must also fail here'.

17. The learned lower appellate court further held that from the oral as well as the documentary evidence it was fully proved that the respondent had a right of way through the Gali and that the disputed land was his sehan. This finding of fact was not even challenged in these appeals. In second appeal, these findings of fact, which are based on the evidence on record, cannot be disturbed.

18. In the result, both the appeals fail. They are hereby dismissed. Costs of these appeals shall be easy.


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