SHRIKRISHNA VASUDEV PATIL Vs. BABURAO VASUDEV PATIL

JUDGEMENT

(1.) This appeal challenges the judgment and decree dated 27/12/2010 passed by the District Judge-2, North Goa, Panaji pursuant to which the learned District Judge partly allowed the appeal filed by the respondents against the judgment and decree dated 30/01/2010 passed by the Civil Judge Junior Division, Ponda and remanded the matter to the Trial Court for deciding the matter afresh after taking the documents on record. Since the appeal challenges the judgment and decree of remand in terms of Order XLIII Rule 1(u) CPC, the substantial question of law would be required to be formulated treating this Appeal From Order on par with a Second Appeal in terms of Section 100 CPC. Heard Shri S.D. Lotlikar, learned Senior Counsel on behalf of the appellant who submitted that the substantial question of law which would arise for determination is whether the first appellate Court was justified in allowing the application under Order XLI Rule 27 CPC for the reasons recorded by it and remanding the file to the Trial Court after quashing and setting aside the judgment of the Trial Court decreeing his suit in the appellant's favour.

(2.) It was the contention of Shri Lotlikar, learned Senior Counsel that pursuant to the Deed of Settlement dated 24/08/1991, the plot 'C' was allotted to the appellant, plot 'B' to the respondent and plot 'A' was allotted to their third brother. The respondents had taken a plea in their written statement filed in defence that the plan annexed to the Deed of Settlement was altered and modified by the appellant herein. The parties had led evidence before the Trial Court and despite due opportunity, no case was brought forth by the respondents to show that the plan was altered or modified and accordingly the Trial Court on the basis of the issues framed for determination decreed the suit in the appellant's favour. The respondents preferred an appeal before the District Court which by the impugned judgment allowed the respondents to produce the certified copy of the Deed of Settlement on record by allowing their application under Order XLI Rule 27 CPC and quashed and set aside the decree in their favour. He adverted to the judgment of the first appellate Court and submitted that the learned District Judge had gone contrary to the predicates of Order XLI Rule 27 CPC while permitting the production of the document and quashing and setting aside the judgment and decree in the appellant's favour.

(3.) Shri J.A. Lobo, learned Advocate for the respondents submitted at the outset that the appellate Court was conscious of its powers under Order XLI Rule 27 CPC which otherwise were unfettered and had properly exercised the powers while passing the impugned judgment and decree. He adverted to the judgment of the Trial Court and the application moved on behalf of the respondents under Order XLI Rule 27 CPC and submitted that no error was committed by the first appellate Court while allowing the production of the document and setting aside the judgment and decree of the Trial Court. He distinguished the judgment in A. Andisamy Chettiar and otherwise placed reliance in Union of India V/s. K.V. Lakshman & Ors., (2016) 13 SCC 124, and in J. Balaji Singh V/s. Diwakar Cole & Ors., (2017) AIR SC 2402, apart from adverting to the application under Order XLI Rule 27 CPC to substantiate his case. There was no reason for interference with the impugned judgment and therefore the appeal had to be dismissed. i would consider their submissions in the light of the judgment relied upon, the predicates of Order XLI Rule 27 CPC, their contentions and the judgment of the Court below and the first appellate Court i.e. the impugned judgment and decide the appeal appropriately.