RAMDAS JAIRAMJI ZADE Vs. ASHOK RAMDAS ZADE

JUDGEMENT

(1.) Since an identical question arises in both these appeals, they are being decided by this common judgment. The following substantial question of law arises for consideration : " In the light of directions issued in W.P.No.2612/2012 by order dated 07/08/2013, whether the first appellate Court committed an error in failing to decide the application seeking additional evidence ?"

(2.) In Second Appeal No.168/2016 the appellant is the original plaintiff who had filed suit for mandatory injunction praying that defendant Nos.1 and 2 being the son and daughter-in-law of the plaintiff be directed to vacate the suit block. According to the plaintiff the suit property was his self acquired property and the defendant Nos.1 and 2 being in permissible possession could not continue to reside against his wishes. The trial Court decreed the suit. In the appeal preferred by defendant Nos.1 and 2 the said defendants sought to lead additional evidence by moving application under provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short, the Code). This application below Exhibit-66 came to be rejected and said order was challenged by preferring writ petition in this Court. While disposing of the writ petition, the appellate Court was directed to decide that application along with appeal. The appellate Court by the impugned judgment allowed the appeal and dismissed the suit.

(3.) In Second Appeal No.72/2016 the respondent is the original plaintiff who had filed suit for declaration that he had right, title and interest in the suit property along with permanent injunction. According to him in the partition held in the year 1991, the suit property was allotted to him. This suit was dismissed by the trial Court. In the appeal the original plaintiff filed an application below Exhibit-27 for leading additional evidence. This application was rejected and in the writ petition challenging said order, the said application was directed to be considered along with the appeal. The appellate Court allowed the appeal of the original plaintiff and partly decreed the suit. Hence the aforesaid appeals.