{1} IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.464 OF 1989 01- Shaikh Laddu Shaikh Ismail died L.Rs. 1-a] Zaintee w/o Shaikh Laddu died L.Rs. 1-b to 1-f] 1-b] Abdul Kadar s/o Shaikh Laddu 1-c] Abdul Waheb s/o Shaikh Laddu 1-d] Abdul Gafar s/o Shaikh Laddu 1-e] Rukhsaibee d/o Shaikh Laddu 1-f] Salekhabegum d/o Shaikh Laddu 1-a to 1-F R/o Nanded Base Near Roshan Hotel, Parbhani. 2- Rukhiyabee w/o Shaikh Raheem APPELLANTS VERSUS Abdul Rahim Abdul Shakur Died L.Rs. 1- Sakinabee w/o Abdul Rahim 2- Abdul Kadir Abdul Rahim 3- Abdul Hamid Abdul Rahim 4- Abdul Khaliq Abdul Rahim {2} 5- Gulam Dastagir Abdul Rahim 6- Md.Azaher Abdul Rahim 7- Ferozhabegum w/o Sk. Hyder 8- Rukhsana Begum w/o Fate Mohammad. RESPONDENTS. *** Shri A.S.Deshmukh, advocate for appellants Shri P.P.Katneshwarkar, advocate for respondents *** Coram : K.U.Chandiwal, J. Date: 01st July 2009. P.C.: 01- Being aggrieved by the order of first appellate Court in RCA No.185/84 who set aside the decree of dismissal of the Court of first instance, the defendant is in Second Appeal. 02- Elaborate submissions were made by both the sides. The plaintiff failed to produce documentary evidence in support of title of his vendor. He simply relied on sale deed executed by Mohammad Ibrahim Mohammad Ismail. Since the court of first instance observed tracing of title of Mohammad Ibrahim, it was by invoking provisions of Order 41 Rule 27 of the Code of Civil Procedure at the appellate stage, the plaintiff sought to produce Municipal record for which permission was granted to him and such {3} record is produced which led the learned first appellate Court to decree the suit. 03- The counsel for the appellant Shaikh Laddu informed, no opportunity was given to deal with the documents produced at the appellate stage, no contrary evidence could be produced or given. That apart, he has also commented on the manner of entertaining the application, as according to him it is in contrast to the provisions of Order 41 Rule 27 [1] Clause-aa of the Code of Civil Procedure. 04- The parties apparently are litigating since 1979. It is the defendant who is in possession of the property while the plaintiff asserts right over the property on the basis of sale-deed executed by Mohammad Ibrahim. 05- During the course of submissions it was pointed, a request was made by the plaintiff to the first appellate Court to remand the matter. However, the first appellate Court allowed the appeal in entirety. 06- The documents tendered in the first appellate Court, apparently have gone without affording any opportunity to the defendants. Even the plaintiff could not properly adduce evidence as to the source of getting those documents from Municipal Council. Few of the documents [relating to {4} demand notice] are still not marked exhibits by the Court for want of proper evidence. In this dismal of the matter, the judgment of the first appellate court and that of the court of first instance is set aside. The matter is remitted to the Court of first instance i.e., Civil Judge, Junior Division, Parbhani to decide the matter afresh on following directions; a- The learned judge will allow both the sides to adduce evidence in relation to the documents produced in first appellate Court. b- The learned judge will allow the plaintiff to deposit the necessary court fees, as by virtue of amendment, the very nature of suit is changed from one of perpetual injunction to the suit for possession. c- Record be sent to Court of first instance. d- Considering the ages of the parties, age of the litigation, it will be in the fitness of the situation if the learned judge ensures completion of the trial within six months of receiving the record. e- The parties shall appear before the learned Civil Judge, J.D., Parbhani on 05th August 2009. f- No costs. [K.U.CHANDIWAL] JUDGE /mda/0709/sa464.89