ALAMELU AMMAL Vs. S. RANI

JUDGEMENT

(1.) We have heard learned counsel for the parties finally at this stage.

(2.) Leave granted.

(3.) One Kanda Nainar executed a sale deed in favour of the first appellant on 05.09.1979 where under a wall measuring 30 feet East-West and 3/4 feet North-South of a length of 30 feet with a height of 9 feet had been sold. The said appellant instituted a suit for declaration of title and permanent injunction in respect of the suit property measuring 95 feet East-West and 23 feet North-South, which comprised of the house and the garden on the backside of the house against the predecessor of the respondents. The said suit was resisted by the predecessor of the respondents. The trial court partly decreed the suit and granted relief to the appellants in respect of an extent of 33.5 feet East-West and 23 feet North-South which took within its fold the house of the appellants. Being aggrieved, the appellants preferred an appeal in respect of the disallowed portion of their claim namely, the garden on the backside of their house measuring 61.5 feet East-West and 23 feet North-South. During the trial, the appellants had produced a Patta in respect of Re-Survey No. 286/1B while the suit property was comprised in Re-Survey No. 278/1. Realzing the mistake, the appellants filed an application for receiving the Patta issued in their favour in respect of Re-Survey No. 278/1 in which the suit property was situate. The First Appellate Court received the said Patta by way of additional evidence and proceeded to grant the relief to the appellants as prayed for in the suit by allowing the appeal. Aggrieved with the grant of the relief in to, the predecessor of the respondents preferred a second appeal before the High Court. The learned Single Judge allowed the second appeal by holding that no opportunity had been afforded by the First Appellate Court to prove the document (Patta) which had been filed by way of additional evidence and restored the decision of the Trial Court. The said order was challenged by the appellants by filing review application. The High Court while dismissing the review application held that the points raised in the review application had not been urged when the second appeal was heard and, therefore, the same cannot be permitted to be raised in the review application. The High Court noted that the procedure contemplated under Order 41, Rule 28 of the Civil Procedure Code, 1908 had to be followed for receiving additional evidence.