Additional Evidence at Appellate Stage--On allowing of application under O.41 R.27 CPC, lower Appellate Court has to proceed as per provisions of O.41 R.28 CPC
Additional Issues at Appellate Stage--If an additional issue is found necessary and is framed by lower Appellate Court then it has to follow the procedure prescribed under O.41 R.25 CPC instead of remanding the case for fresh trial

JUDGMENT

Mr. Surinder Gupta, J.:- Appellant-Paramjit Kaur filed suit seeking declaration and relief of injunction as follows:-

“Suit for declaration to the effect that the plaintiff is owner in possession of plot measuring 6-2/3 marlas i.e. 200 sq. yards, comprised in khasra no. 33//8/3, 9/2, 12, 564, 223, 434, 435, khata no. 133/166, 135/168, 155/195, as per jamabandi for the year 1993-94, situated at village Jawaddi, Tehsil and District Ludhiana, as shown red in the site plan attached and bounded as under:-

East : Manjit Singh : 60'

West : Ranjit Singh : 60'

North : Neighbourer : 30'

South : Street : 30'

And

for permanent injunction restraining the defendants themselves, their employees, attorneys, agents, relations, assignees etc. from interfering in the peaceful possession of the plaintiff and further from dispossessing the plaintiff illegally and forcibly from the suit property as shown red in the site plan attached and further restraining the defendants from alienating the suit property in any way, illegally and forcibly, without any right and jurisdiction on the basis of oral and documentary evidence.”

2. The suit was decreed and plaintiff was declared owner in possession of suit property and defendants were restrained from interfering in her peaceful possession and from dispossessing her except in due course of law.

3. Defendants filed appeal before Additional District Judge, Ludhiana. During pendency of appeal, application was moved under Order XLI Rule 27 CPC for permission to lead additional evidence to place on record copies of jamabandies for the years 1978-79, 1993-94, 1998-99, 2008-09 of Village Jawaddi, copy of order passed by Collector, Ludhiana, copy of mutation no. 23200 of Village Jawaddi, certified copies of some statements and orders passed by Court. Application was allowed by learned Ist Appellate Court with observations as follows:-

“13. After hearing the respective contentions of both the sides I find merits in the present application for leading additional evidence. By way of present application, appellant intends to produce certified copies of Court proceedings which are per se admissible. Therefore, same cannot be denied to be tendered into evidence. The jamabandi for the year 1978-79, 1993-94, 1998-99 2008-09 of village Jawaddi, Ludhiana are also public record. It is settled law that any document, which is essential for the just decision of case, can be taken in evidence even at appellate stage. The courts should normally be receptive to whatever evidence is produced before it, if the same is found essential for doing substantial justice between the parties. Consequently, present application filed by the appellant is allowed.”

4. Learned Ist Appellate Court observed that learned lower Court has not looked into following pleas raised by defendants-respondents in their written statement while framing issues:-

(i) Gurnam Singh has already executed sale deed of 500 sq. yards bearing wasika No.24736 dated 04.02.1997 in favour of Kuldeep Singh, which was land more than his share, as such, he could not execute any sale deed in favour of Balwinder Kaur.

(ii) Plaintiff is not in possession of suit property and her suit is hit by provisions of Section 34 of Specific Relief Act, as no relief of possession has been sought by her.

(iii) Ranjit Singh, who filed suit as attorney of plaintiff, has no authority to file the suit, as such, the suit is bad for misjoinder and non-joinder of parties.

(iv) Plaintiff had earlier filed suit claiming her ownership over 175 sq. yards of land while in present suit, she claimed her ownership over 200 sq. yards and her suit is barred under Order II Rule 2 CPC.

5. Learned Ist Appellate Court framed following additional issues:-

6-A) Whether the suit filed by plaintiff is barred under Order 2 Rule 2 CPC in view of filing of earlier suit by her? OPD

6-B) Whether Gurnam Singh was owner of any land at the time of execution of sale deed bearing wasika No.17643 dated 17.11.1997 in fav