RAJENDRAKUMAR BABULAL PARMAR Vs. BABUBHAI MANILAL PATEL

JUDGEMENT

(1.) BY this application, the applicants original defendants seek stay of the implementation of the judgment and decree dated 31st March, 2011 passed by the learned District Judge, Gandhinagar in Regular Civil Appeal No.25/2006 during the pendency of Second Appeal No.131/2011.

(2.) BY an order dated 29th June, 2011, the second appeal came to be admitted on the following substantial questions of law:-

(3.) VEHEMENTLY opposing the application, Ms. Contractor, learned advocate with Ms. Gayatri B. Jadeja, learned advocate for the respondent original plaintiff submitted that the lower appellate court has upon reappreciation of the evidence on record found that the defendants have failed to establish that they are the owners of the land from which the suit way passes. It was submitted that the lower appellate court has found that there is no evidence on record to indicate the existence of an alternate way, inasmuch as there is nothing to show that there is any passage from blocks No.95 and 96 to the plaintiff's block No.94 and in fact, the lower appellate court has found that there is a hedge between block No.95 and 96 and shedha between block No.95 and 94 which fact has been admitted by the defendants in their cross-examination. As regards the contention that the lower appellate court could not have placed reliance upon the un-exhibited panchnamas, it was submitted that the lower appellate court has rightly placed reliance upon the provisions of section 58 of the Evidence Act for holding that when the documentary evidence is admitted, the same ought to have been admitted in evidence and exhibited, and has accordingly exhibited the panchnama made at the instance of the plaintiff as well as the panchnama made at the instance of the defendants. It was submitted that it is legally permissible for the appellate court to require any document to be produced or any evidence to be examined, though in the present case, the documents namely the panchnamas were already on record and had been admitted by the parties. In the circumstances, the lower appellate court had merely rectified the error committed by the trial court in not exhibiting the admitted evidence and exhibited the same. It was submitted that the panchnamas having been admitted by both the parties, the lower appellate court was justified in admitting the panchnamas to evidence and referring to and relying upon the same.