IMPORTANT POINT
Application filed under Order 41 Rule 27 of CPC has to be decided at stage of final hearing.

JUDGMENT

R.D. Dhanuka, J.—Admit on the following substantial questions of law:-

(A) Whether without filing any cross objections by the respondents, the Appellate Court could grant larger relief in favour of the respondents which were not granted by the trial court ?

(B) Whether the Appellate Court could have decided the application for additional evidence before commencement of the hearing the appeal on merits or not ?

2. Mr.Kadam, learned counsel for the respondent nos. 1, 2, 4, 7, 9 to 13, the contesting respondents waives service. By consent of parties, second appeal is heard finally.

3. The respondent nos. 1 and 2 had filed a suit inter alia praying for declaration and partition against the appellant and some of the other respondents in respect of the ancestral properties. The learned trial judge framed four issues. It was the case of the defendant no.2 that there the suit properties were already partitioned by a partition deed dated 15th February, 1959. It was also the case of the defendant no.2 that the suit properties bearing nos. 133/8, 133/9 and 34 were self acquired properties.

4. It was the case of the plaintiff that the plaintiff and defendant nos. 3 to 9 were entitled to share in the property. Both the parties led oral and documentary evidence before the learned trial judge. Insofar the issue as to whether the defendant no.2 proved that on 15th February, 1959 there was a partition is concerned, the said issue was answered in negative. The trial court also answered the issue whether the defendant no.2 had proved that the suit properties were self acquired properties or not in negative. The trial court held that the plaintiff and the defendant nos. 3 to 9 are entitled to share in the 1/3rd share of their father in the suit properties. It is further held that the defendant nos. 3 to 9 are entitled to get their share on payment of court fees.

5. Being aggrieved by the said judgment and decree dated 12th April, 2002, the appellant (original defendant no.2) preferred an appeal being Regular Civil Appeal No.130 of 2002 before the learned District Judge. The learned District Judge framed six points for determination. Before the Appellate Court, the appellant filed an application on 23rd September,2016 for permission to allow the appellant to produce the additional documents on record. The said application filed under Order 41 Rule 27 was resisted by the original plaintiff. By an order dated 4th November, 2016, the learned District Judge rejected the said application filed by the appellant at the threshold.

6. The Appellate Court thereafter proceeded with the hearing of the appeal and passed a judgment and decree dated 14th December, 2016 thereby allowing the appeal filed by the appellant herein partly. The Appellate Court was pleased to set aside the directions given by the learned trial judge to prepare a preliminary decree and modified the decree as mentioned in clauses (i) and (ii) in later part of the order. The Appellate Court declared that the original plaintiff and the defendant nos. 3 to 9 and/or their legal representatives had 1/22nd share each in the suit property and the defendant nos. 1 and 2 had 13/44th share each in the suit property.

7. Mr.Shah, learned counsel for the appellant invited my attention to the findings rendered by the two courts below and also the application filed by his client under Order 41 Rule 27 of the Code of Civil Procedure. He submits that it was the specific case of his client before the trial court that the suit properties were already partitioned on 15th February, 1959. The appellant had filed an application under Order 41 Rule 27 of the Code of Civil Procedure before the Appellate Court. He submits that the said application under Order 41 Rule 27 ought to have been decided by the Appellate Court at the stage of final hearing. The Appellate Court having rejected the said application before commencement of the hearing the appeal filed by his clients, the entire judgment and decree passed b