RADHA TAMOLIN Vs. DURGAWATI DEVI

JUDGEMENT

(1.) Heard learned Counsel for the appellant on I.A. No. 1984 of 2004, under Order XLI, Rule 27 of the Code of Civil Procedure praying therein to remand the appeal, with suitable directions to the trial Court to allow the parties to adduce additional evidence on the points raised in this application, relating to a deed of gift. The additional evidence which is sought to be brought on the record after remand of the case is the registered deed of gift said to have been executed by Budhiya Tamolin, widow of Raghunath Tamoli, whose name was recorded in the records of right relating to suit property, in favour of her brother Mahadeo Tamoli who, in his turn, sold the said land by registered sale-deed dated 4.1.1966 to Makhan Lal Agrawal and others, who sold the same property, again by a registered deed, to Radha Tamolin, the plaintiff on 8.10.1966. To cut short the matter, the learned first appellate Court has held that the alleged registered deed of gift executed by Budhiya alone could grant authority to Mahadeo Tamoli over the suit property making him competent to execute a deed of sale in favour of Makhan Lal Agrawal and others. Obviously, that registered deed of gift was not brought on the record of the trial Court nor any petition, as admitted, was filed in the first appellate Court for bringing in that document on the record by way of additional evidence at the appellate stage.

(2.) Now coming to the specific prayer made in this application to remand the appeal, when asked as to how this could be done without first hearing this second appeal under Order XLI, Rule 11 read with Section 100 of the Code of Civil Procedure, learned counsel for the appellant urged the Court that the Court at present was at the stage as envisaged under Rule 16 of Order XLI, of the Code of Civil Procedure. This submission is mentioned to be dismissed outright. Unless the appellant crosses the barrier of Order XLI, Rule 11 of the Code of Civil Procedure, the stage of hearing of the appeal will not arrive. This Court, while hearing a second appeal under Order XLI, Rule 11 of the Code of Civil Procedure, will not dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred, if this Court finds that the case involves substantial question/questions of law which need be heard and decided in the second appeal, and has formulated such substantial question of law for hearing.

(3.) A remand could be made by an appellate Court under the provisions of Rules 23 and 23-A of Order XLI of the Code of Civil Procedure which stage will come only if, after hearing the appeal, this Court has reversed the decree of the first appellate Court. Obviously, in this appeal that stage has not come as the appeal has not yet been heard under Order XLI, Rule 11 of the Code of Civil Procedure.