1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2573/2009 WITH CIVIL APPLICATION NO. 9908/2009 WITH CIVIL APPLICATION NO. 12269/2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. P.V. Mandlik h/f Shri A.S. Gandhi, Advocate for appellant. Shri A.S. Deshmukh, Advocate for respondent sole. CORAM : K.U. CHANDIWAL, J Date : 26th February, 2010. 1 Heard. 2 The matter is finally heard at admission stage. C.A. No. 12269/2009 is moved by appellant Smt. Anusayabai seeking permission to produce documents by way of additional evidence while considering the first appeal. The documents referred are (i) Society’s allotment certificate (ii) Certificate regarding identification of Godawaribai by Municipal Council, (iii) Agreement of sale 2 executed by real owner Godawaribai in favour of Anusayabai and (iv) affidavit of Godawaribai. 3 The case of plaintiff before the learned Civil Judge (Senior Division) seeking possession of the suit plot was by virtue of sale deed dated 10/02/2003 executed by Godawaribai, he has become owner of property. The defendant (Anusayabai) all through out challenged the same. After evaluating the evidence, learned Civil Judge (Senior Division), Nanded decreed the suit declaring plaintiff as a lawful owner of the disputed plot and directed the defendant to hand over actual possession of the suit property to the plaintiff within two months. The defendant Anusayabai canvassed before learned judge, the sale deed is not executed by real Godawaribai but somebody else is presented for execution of such sale deed. 4 The documents referred above sought to be produced by the appellant (defendant) Anusayabai, were not available with her, even after exercise of due diligence. 3 Anusayabai could trace, the real owner Godawaribai, her evidence will turn the table in the matter, consequently production of such evidence is sought in terms of Order 41 Rule 27 of C.P.C.. 5 The existence of these certificates and so called Godawaribai is challenged by the plaintiff while controverting contentions from the appellant Anusayabai. 6 In the light of such controversy, both the learned counsel submits that the matter needs to be remitted to the learned Civil Judge (Senior Division), Nanded to consider the four documents referred above and to frame a issue, about execution of sale deed in favour of the plaintiff, whether was by Godawaribai Lingoji Jorgewar or it was a impersonation. 7 Above situation warrants, instead of sending the matter for limited purpose to the learned Civil Judge (Senior Division), the additional evidence being required to be adduced, it shall be by the court from whose decree the appeal is preferred. 4 a) The appeal is partly allowed. b) The judgment under challenge is set aside. c) The learned judge shall allow production of the above referred four documents by defendant and allow the defendant to lead evidence, to substantiate the same. d) The appellants to pay cost of Rs.500/- to the plaintiff within two months. The parties to appear before learned Civil Judge (Senior Division), Nanded in Special Civil Suit No. 127/2005 on 25/03/2010. e) The learned judge will allow the parties to lead evidence in support or opposing the four documents. f) Learned judge shall complete the hearing up to 30th August, 2010. g) Respective civil applications also disposed of. (K.U. CHANDIWAL, J) tsk/fa2573.09