Appellate courts cannot invoke Section 151 CPC to skip requirements of Order XLI, Rule 27 CPC when dealing with additional evidence. Remand for framing additional issues must be justified, and the appellate court should frame the issues itself under Order XLI, Rule 25 CPC rather than directing the trial court to do so.

Judgment

Reportable

1. The appellants by way of filing the present misc. appeal has challenged the judgment and decree dated 09.05.2006 passed by the learned Additional District Judge, Nagaur, in Civil Appeal Decree No. 19/2004 (Laxman Singh & Ors. vs. Bala Bai), whereby, the learned appellate Court, while remanding the appeal to trial Court has accepted the application filed under Order XLI , Rule 27 read with Section 151 CPC by the defendants for taking the documents on record and, if required, for framing an additional issue and recording additional evidence.

Factual Matrix:

2. The facts necessary for adjudication of the present appeal are that a civil suit for declaration and injunction was filed by the appellants/plaintiffs before the learned trial court against respondent Nos. 1 and 2, while also impleading respondent Nos. 3 to 5 (family members, i.e., brothers of the plaintiff). It was asserted in the suit that the predecessor-in-title of the appellants, Bhur Dan Charan, was in possession and ownership of the land by virtue of a sale deed, for which a ‘Patta’ was issued by the Gram Panchayat on 10.12.1960.

3. It was further stated that adjacent to the said land, there existed a right of way, which had been used since time immemorial as a public passage for approaching the temple. The plaintiffs asserted that respondent No. 2, in collusion with the authorities, got a ‘Patta’ issued in his favour and thereafter executed a sale deed dated 09.06.1982 in favour of respondent No. 1, fraudulently including the public way as well as a portion of the property belonging to the plaintiffs (covered under the ‘Patta’ issued in favour of Bhur Dan Charan). Subsequently, respondent No. 2 obtained another ‘Patta’ for the same land from the Gram Panchayat on 03.04.1983.

4. The plaintiffs further asserted that since the ‘Patta’ was issued in respect of a portion of land, already under their ownership, and as the earlier ‘Patta’ was already in existence, coupled with the fact that the public land (i.e., the right of way to the temple) was also wrongly included in the ‘Patta’, the sale deed being null and void is liable to be quashed.

5. The plaintiff further stated that respondent Nos. 3 to 5 initially attempted to restrain respondent Nos. 1 and 2 from undertaking the encroachment by constructing a wall over the way, however, respondent No. 2 filed a police report, and thereafter the parties have entered into a compromise. The plaintiffs asserted that the said compromise was not binding upon them, as they were not a party to it. Upon coming to know of the encroachment being carried out, the present suit was filed. The plaintiff thus prayed for a decree of declaration and injunction.

6. Respondent Nos. 1 and 2 filed a written statement denying the contents of the plaint and submitted that Bhur Dan Charan himself was the Panch and had fraudulently obtained a ‘Patta’ over the land. It was submitted that the ‘Patta’ issued in favour of respondent No. 2 was rightly issued by the authorities after following the prescribed procedure, and that the alleged chowk in question was being maintained by them alone.

7. It was also submitted that the right of way, as alleged by the plaintiffs, never existed, and that construction over the said land had been carried out by them way back in the year 1983. In their additional objections, the respondents submitted that earlier a suit, No. 30/1984, had bee