Point of law: Exercise of Jurisdiction - The absence of adjudication on application under Order 41 Rule 27 of the Code of Civil Procedure amounts to refusal of exercise of jurisdiction vested in Lower Appellate Court, which has potential to cause prejudice to the plaintiff. There is no absolute right granted by Code of Civil Procedure to adduce additional evidence at the appellate stage.

JUDGMENT :

By way of present appeal, the appellant has assailed the judgment and decree dated 05.11.2007, passed by learned District Judge, Kinnaur at Rampur Bushahr, H.P. in Civil Appeal No. 48 of 2005, arising out of judgment and decree dated 30th September, 2005 passed by learned Civil Judge (Junior Division), Anni, District Kullu in Civil Suit No.14-1 of 2004.

2. Appellant herein was plaintiff before the Trial Court and respondents herein were defendants. The parties hereafter shall be referred to by the same status, which they held before the learned Trial Court.

3. Plaintiff filed the suit in respect of 2 biswas of land and house constructed thereon comprised in part of Khasra No. 409/283 in mauja /Phati Thachwa in village Jagatkhana, Tehsil Nirmand, District Kullu, H.P. (for short “suit property”). Plaintiff claimed the suit property as owner thereof by virtue of agreement to sell and alternatively under a gift executed by one Sh. Parmi, who was the original owner of the land comprised in Khasra No. 409/283. She alleged that defendants No. 1 to 3 were strangers to the suit property and defendants No. 4 to 6 were her tenants. As per plaintiff, defendants were sons of Sh. Rattan Dass, who had lived as husband of plaintiff for considerable long period. It was contended by plaintiff that after the death of Sh.Rattan Dass, defendants No. 1 to 3 illegally started claiming their rights over the suit property on the pretext that it belonged to their father. The peaceful possession of plaintiff was alleged to be disturbed by defendants No.1 to 3. It was also alleged that defendants No. 1 to 3 obstructed defendants No. 4 to 6 from paying rent to the plaintiff on the above noted averments relief in the following terms was prayed for:-

“It is, therefore, prayed that defendant Nos.1 to 3 and their family members, agents, persons, servants or whosoever acts for and on their behalf may kindly be restrained from causing any sort of interference directly or indirectly into the possession of the plaintiff and her tenants in the double storey house comprising two rooms and kitchen on the ground floor and two rooms with separate kitchen, latrine and bathroom on the Ist floor of the house along with vacant space in front and right side of the house and they be also restrained from collecting rent from defendants Nos. 4 to 6 and further defendant Nos. 4 to 6 may kindly be restrained to make any kind of payment of rent to defendant Nos. 1 to 3 and further defendant Nos. 1 to 6 may kindly be restrained from causing any sort of nuisance, acts and deeds in peaceful enjoyment of the property situated over Khasra No. 409/283 in mouza Tachwa by the plaintiff. Any other relief the Court deems just and proper may kindly be passed in favour of the plaintiff and against the defendants in the interest of justice.”

4. Suit was contested by all the defendants. Defendants No. 1 to 3 denied the claim of plaintiff on the ground that their father late Sh.Rattan Dass had purchased the land measuring two biswas in Khasra No. 409/283 from Sh. Ratti Ram, who was son of Sh. Parmi. According to defendants No.1 to 3, the house was constructed by their father and plaintiff was one of his tenants. They specifically denied any relationship between their father and plaintiff.

5. Defendants No. 4 to 6 acknowledged that suit property belonged to Sh. Rattan Dass and they were inducted tenants by him. Defendants No. 4 to 6 maintained that they had been paying rent earlier to Sh. Rattan Dass and after his death to defendants No. 1 to 3.

6. The learned Trial Court on the basis of the pleadings of the parties had framed followings issues:-

1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP.

2. Whether the plaintiff has no cause of action to file the present suit against the defendants? OPD.

3. Whether the suit is not maintainable in the present form? OPD.

4. Whether the plaintiff has no locus standi to file this suit against the defend