BALVANT YADNESHWAR Vs. SRINIVAS APPAJI KULKARNI

JUDGEMENT

(1.) This second appeal involves a very important point of law. It is admitted in fact, it has been decided in a previous suit--that the wall in dispute between the houses of the plaintiff and the defendants is a party wall. The plaintiffs case is that the first defendant has built on that wall another portion nearly 6 1/2' high. As this has been done without the plaintiff's consent and as the defendant has no right to do so, the plaintiff has prayed for a mandatory injunction requiring that the wall be pulled down and brought back to its original position. The contention of defendant 1 was that it was a party wall in the sense that half of it on the defendant's side belonged to defendant 1 and the other half to the plaintiff. He also pleaded that he raised the wall with the plaintiff's consent. Defendant 2 contended that he had nothing to do with the suit wall and that he was unnecessarily made a party to the suit. At the trial, the first defendant did not press his contention that the longitudinal half of the wall on his side exclusively belonged to him, thus accepting the position that the wall was a party wall. The trial Court held that the plaintiff was entitled to the mandatory injunction and gave him a decree. In appeal by defendant 1, the decree was confirmed Defendant 1 has come up in second appeal.

(2.) By his application dated 27-1-1959 under Order XLI, Rule 27, C. P. C., the appellant has sought to produce two documents which are certified copies of pursis passed on by each of the parties in the previous suit No. 237/50 on the file of the Civil Judge, Junior Division, Jamkhandi. The learned Advocate for the respondent contends that he had no time to put in his counter to this application. All the same, the Advocates on both the sides have argued on that application about the admissibility of the documents. The learned Advocate for the respondent has contended that the provisions of Order XLI, Rule 27, C. P. C. apply only to first appeals and not to second appeals. He urges that the High Court has no jurisdiction in second appeals to admit fresh documents under the said rule which is intended only for first appeals. This question needs careful examination.

(3.) If we look to the scheme of the Civil Procedure Code, we find that Part VII which relates to appeals is subdivided into five divisions viz.. 1. appeals from original decrees (Sections 96 to 99), 2. appeals from appellate decrees (Sections 100 to 103); 3. appeals from orders (Sections 104 to 106);