KISHORE Vs. ROOP KISHORE

JUDGEMENT

(1.) Petitioners Shri Kishore and Bacchan Babu as well as respondent Roop Kishore are all real brothers having their landed properties situated in the village. After the death of their father, they inherited the property in the ratio of 1 /3rd share each. According to the petitioners, on 27.2.2001 a family partition took place between the three brothers in presence of the Panchayat and other witnesses, in which the respondent Roop Kishore left his 1/3rd share in favour of the petitioners, after taking a sum of Rs. 22,000/- in lieu of his share in the property. Thereafter, on 12.3.2001, respondent Roop Kishore filed Original Suit no. 126 of 2001 against the petitioners in the court of Civil Judge (Junior Division), Aligarh for partition of his 1 /3rd share in the joint property. The said suit was contested by the defendant-petitioners. The trial court, vide its Judgment and Order dated 16.11.2002, dismissed the suit of the plaintiff-respondent with cost. Against the said Judgment and Order of the trial court, the plaintiff-respondent Roop Kishore filed appeal on 24.12.2002, which was registered as Civil Appeal No.10 of 2003 in the court of District Judge, Aligarh. After lapse of more than 15 months of fling of the appeal, the respondent Roop Kishore filed an application under Order 41 Rule 27 C.P.C before the appellate court for obtaining the opinion of Hand- writing expert with regard to his signatures on the partition deed dated 27.2.2001. Petitioners filed objections to the said application and after hearing the learned counsel for the parties, the appellate court, vide its order dated 27.9.2004, allowed the said application of the respondent. Aggrieved by the said order, the petitioners have filed this writ petition.

(2.) I have heard Sri Amit Saxena, learned counsel for the petitioners, as well as Sri Sudhir Dixit, learned counsel for the respondent and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being disposed of at this stage.

(3.) The respondent can adduce additional evidence at the appellate stage only under the provisions of Order 41 Rule 27 C.P.C., which reads as under:-