1. This appeal raises the question whether the plaintiff has a right to the use of a lane in order that his scavenger may pass through it and empty a kuppam of its night soil and also whether the drainage water from the plaintiff's latrine might pass across the lane to the Municipal channel on the other side. The District Munsiff held that the plaintiff had proved that he had such a right and so granted an injunction restraining the defendant from interfering with the exercise of the plaintiff's right. The lower appellate Court came to a contrary conclusion and dismissed the suit.
2. The trial Court decided the issue whether the lane marked A1, B, C, D1 shown in the plaint plan were the common lane of the parties to the suit almost entirely on evidence of user. It did not separately consider the question whether the lane in dispute belongs to the defendant--as the defendant claims--or whether it belongs to the plaintiff and the defendant in common. The learned District Judge considered two questions in connection with this issue. The first was whether the lane belonged to the defendant or whether both the plaintiff and the defendant had title to it. Having come to the conclusion that the lane was the property of the defendant, he proceeded to consider whether the plaintiff had established a right by easement to the use of that lane. That, of course, was the proper way to approach this issue. The plaintiff could not have complained if the learned District Judge had not considered the question of easement; because the suit was based on the common title of the plaintiff with the defendant to the lane.
3. With regard to the discussion of the lower appellate Court of the question of title, the plaintiff in second appeal complains that the learned Judge admitted in evidence documents which he was not entitled to admit under Order XLI, Rule 27 of the Code of Civil Procedure. The learned Judge undoubtedly applied the recent Rule 27(1)(b) and seems to have been satisfied that the defendant could not produce the evidence at the trial notwithstanding the exercise of due diligence. Under Sub-rule (2) the appellate Court is bound to give its reasons. The reasons given by the learned District Judge are not very satisfactory. He said:
These documents were not filed in the lower Court, for the reasons set out in the affidavit. In my opinion the admission of these documents is essential in the interests of justice.
4. He was not concerned with the question whether the interests of justice required the admission of the documents, but whether the defendant was unable to adduce such evidence in the trial Court notwithstanding the exercise of due diligence. It would however seem from the first sentence, of the passage set out above that he did accept the statement of the defendant setting out the reasons for his inability to adduce evidence in the. trial Court. The reasons set out in the affidavit were of the nature described in Rule 27(1)(b). I cannot say that the learned District judge did not exercise his discretion judicially. In Narasimhamurti v. Hayat Khan : AIR1940Mad911 , this Court ordered the appellate Court to reconsider the appeal, holding that he had wrongly admitted additional evidence; but at that time Order XLI, Rule 27, did not contain a clause similar to that found in Sub-rule (1-b), and the learned Judges were concerned only with the question' whether there was a lacuna in the evidence which the Court felt that it was bound to file.
5. If the additional documents were not wrongly admitted, then there was overwhelming evidence that the lane in question belongs to the defendant. The further question whether the plaintiff had proved an easementary right is one of fact, which has been dealt with in detail by the lower appellate Court.
6. The appeal is dismissed with costs.