The main legal point established in the judgment is that under Order 41 Rule 27 of the Civil Procedure Code, relevant and necessary documents, even if more than 30 years old, should be admitted in evidence, and delay in filing the application should not hinder their admission.

Narendra Kumar Jain, J.-Heard learned Counsel for the parties.

2. This second appeal under Section 100 of the Civil Procedure Code, on behalf of the plaintiff-appellants is directed against the Judgment and decree dated 01.03.1995 passed by the Additional Civil Judge No. 2, Alwar, in Civil Appeal No. 30/1991, whereby the appeal of the plaintiff-appellants was dismissed and the Judgment and decree dated 30.03.1979 passed by the lower Court dismissing the suit, was affirmed.

3. While admitting the second appeal, this Court formulated the following substantial questions of law-

“1. Whether the First Appellate Court erred in dismissing the plaintiff’s applications under Order 41 Rule 27 filed on 210.1991 and 22.04.1994 seeking to place on record certified copies of public documents, which were beyond doubt and required no formal proof , number of documents were more than 30 years old and other being certified copies of the municipal record, which were not required formal proof . The applications were dismissed on irrelevant grounds.

2. Whether right of easement is attached to dominant heritage and is available against survient heritage, whosoever may be owner or resident in the property and not to person. The findings of the two Courts-below are vitiated on this account.

3. Whether findings are vitiated on account of non-reading and misreading of oral and documentary evidence”

4. Briefly stated the facts of the second appeal are that sole plaintiff Kanhaiyalal filed a suit for mandatory injunction to remove the disputed wall marked as ‘A’ and ‘B’ and further for prohibitory injunction. It was pleaded in the plaint that one room of the plaintiff is situated towards western side on the roof of the shop of the defendant for last about 80 years when the plaintiff became the owner of the property in dispute. It was further pleaded that the plaintiffs are using the disputed gate and way since 1893. They used to go ‘Sadar Bazar’ through the said gate via roof of shop of the defendants. The defendants have raised a wall marked as ‘A’ and ‘B’, closing the way of the plaintiff and further they want to close their windows, doors etc., whereas they have acquired a right of easement by prescription. The suit was contested by the defendants. Both the parties led oral and documentary evidence. The learned lower Court vide its Judgment dated 30.03.1979 dismissed the suit of the plaintiffs. Being aggrieved with the same, an appeal was preferred.

5. The learned first appellate Court vide its Judgment and decree dated 07.09.1981 allowed the appeal and remitted the case back to the lower Court. The order of remand passed by the first appellate Court was challenged by the defendants before this Court and vide Judgment dated 26.07.1982 this Court set-aside the order of remand passed by the first appellate Court and remanded the matter to the first appellate Court to

hear the case on merits. Thereafter, the first appellate Court dismissed the appeal vide impugned Judgment and decree dated 01.03.1995, which has been impugned in the present second appeal.

.6. The learned Counsel for the appellants, Shri N.K. Maloo, contended that during the tendency of the first appeal, the plaintiff-appellants filed an application on 22.04.1994 under Order 41 Rule 27 of the Civil Procedure Code alongwith five documents, as mentioned in the application, which were certified copies of the Judgment dated 112.1883, Patta dated 112.1883, the Patta and Judgment dated 28.09.1927. All these documents were relating to the disputed property itself and they were necessary and helpful in deciding the present controversy in between both the parties. He contended that the first appellate Court vide its order dated 30.08.1994 wrongly dismissed the application of the plaintiff , therefore, the Judgment and decree passed by the first appellate Court is liable to be set-aside. In support of his contention, the learned Counsel for the appellants relied upon the following decisions-