SELVARAJ Vs. RAVICHANDRAN AND ORS.

JUDGEMENT

(1.) The defendant in the original suit, who emerged successful before the trial Court and suffered a step back before the lower Appellate Court, is before this Court with the present Second Appeal, challenging the decree of the lower Appellate Court dated 01.04.2014 made in A.S. No. 96 of 2010, setting aside the decree of the trial Court dated 17.03.2010 made in O.S. No. 83 of 2006 dismissing the suit. The suit was filed by the respondents herein/plaintiffs for a declaration of their alleged title in respect of the well, electricity service connection, 5HP electric motor pump-set, compressor, wary and channel described as "B" schedule property in the plaint. The said claim was made, based on the alleged purchase made under a sale deed dated 30.11.1992, marked as Ex. A.4. The said claim was resisted by the appellant herein/defendant contending that the respondents herein/plaintiffs did not purchase half share in the well and other items described as "B" schedule property in the plaint and on the other hand, the entire property comprised in S. No. 402/2 including the well was purchased by the appellant herein/defendant under Ex. B.13 dated 29.09.1997.

(2.) In this regard in Ex. A.4, while referring to the well in which undivided half share was conveyed to the respondents herein/plaintiffs, the Survey Number was noted as 402/10. According to the respondents herein/plaintiffs, the same was a clerical mistake and hence, it was corrected by a rectification deed dated 06.11.2002 marked as Ex. A.5.

(3.) The learned trial Judge, after trial, on an evaluation of evidence, dismissed the suit holding that the respondents herein/plaintiffs were not able to co-relate the property conveyed under Ex. A.4 with the suit well described in plaint "B" schedule. As against the decree of the trial Court, dated 17.03.2010, the respondents herein/plaintiffs filed the appeal before the lower Appellate Court in A.S. No. 96 of 2010. In the said appeal, the respondents herein/plaintiff, who were the appellants before the lower Appellate Court, filed an interlocutory application in I.A. No. 135 of 2013 under Order 41 Rule 27 of the Code of Civil Procedure Code for reception of additional evidence. The learned lower Appellate Judge, followed the correct procedure by considering the said application along with the evidence already available on record to find out whether the respondents herein, who were the appellants before the lower Appellate Court, had made out a case for adducing additional evidence in the appellate stage. Though the lower Appellate Court would have followed the proper procedure in taking a decision to allow the application, thereafter the lower Appellate Court, according to the submission made by the appellants in the Second Appeal herein, failed to follow the procedure contemplated under Rule 28 of the Code of Civil Procedure for recording the additional evidence in the appellate stage and simply referred the documents produced along with the application and took them into consideration as if they formed part of the evidence, to arrive at a conclusion that the trial Court was wrong in dismissing the suit. Hence, the appellant has raised it as a substantial question of law that has been arisen for consideration in the second appeal. Accordingly, this Court frames the following substantial question of law: