Failure to provide an opportunity for rebuttal evidence after the acceptance of additional evidence influenced the court's decision.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree, dated 13.01.1999 made in A.S.No.122 of 1997, on the file of the learned District cum Sessions Judge and Chief Judicial Magistrate, Ramanathapuram, reversing the judgment and decree, dated 23.12.1996 made in O.S.No.423 of 1993, on the file of the learned Principal Disrtrict Munsif, Ramanathapuram.

1. This second appeal has been filed as against the judgment amd decree of the reversal finding of the First Appellate Court, setting aside the judgment and decree of the trial Court, dismissing the suit as prayed for declaration and injunction.

2. The parties are referred to as per their own ranking before the trial Court.

3. The brief facts leading to the filing of the present second appeal are as follows:

3. (1). It is the case of the plaintiff that the suit property bearing No.334/3 is situated at Narayana Mangalam Group, Vadakunenthal Village, Ramanathapuram District. The plaintiff traces the title through his grand-father, viz., Dharmaraj, in whose favour, the Patta No.6 is said to have been issued by the Samasthanam. After his demise, his two sons viz., Perisamy Naidu and Subbaiah Naidu, have inherited the property. Thereafter, there was a partition in the property. The above said Periyasamy Naidu was allotted some other properties and the another son viz., Subbiah Naidu was allotted the suit property. The plaintiff and his brother are the sons of the above said Subbiah Naidu. The plaintiff is looking his property and also his brother's property.

3. (2). The defendant in the suit is the daughter of one Koothayee Marathi. The above said Koothayee Marathi had purchased the northern portion of the suit property from one Gurusamy Naidu by virtue of a sale deed. The patta related to the suit property has been mistakenly issued in favour of the defendant’s mother. The present patta number to the suit property is Patta No.285. Besides, the plaintiff had been enjoying the property and perfected his title by adverse possession.

4. It is the contention of the defendant that the property absolutely belonged to her mother and she was granted a patta and hence, she prayed for dismissal of the suit.

5. Based on the above pleadings, the trial Court has framed the following issues:

“(i). Whether the plaintiff is entitled to the relief of declaration?

(ii). Whether the suit property is in possession of the defendant? Hence, can injunction be granted?”

6. During trial, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.5 were marked. On the side of the defendant, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.8 were marked. Besides Ex.C.1 and Ex.C.2 were marked as Court documents.

7. Based on the above evidence and materials, the trial Court decreed the suit. However, the First Appellate Court has set aside the judgment and decree of the trial Court.

8. The First Appellate Court has admitted an additional evidence in I.A.No.411 of 1998 and received Ex.A.6 as an additional document. Based on the above document, the First Appellate Court has reversed the findings of the trial Court. It is to be noted that no opportunity whatsoever was given to the parties to adduce rebuttal evidence. The document has not been proved in the manner known to law

9. The learned counsel appearing on either side submitted that the findings of the First Appellate Court are merely on the basis of Ex.A.6. No opportunity was given to the parties to adduce rebuttal evidence. Hence, both sides fairly submitted that the matter has to be remanded back to the trial Court, for a fair decision.

10. The following substantial questions of law have been framed by this Court in the Second Appeal.

“1. Whether the Appellate Court is legally right in allowing to file additional document without proof and oral evidence?

2. Whether the Lower Appellate Court is legally right in admitting and relying on ExP-5, especially, when no one connected with the documents was examined?

3.