1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 611/2005 (Lalit Pannalal Chaudhary (Dead) Thr. L.R's (A) Smt. Rekha wd/o Lalit Chaudhary & others VERSUS Leelabai Dilipsingh Siriya & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri B.K. Pal, counsel for the appellants. Shri R.R. Vyas, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 2, 2008. Heard the learned counsel for the parties. The appellant is the original defendant. A suit was filed by the plaintiffs for possession, damages and mesne profits. According to the plaintiffs, they were in possession of the suit property which comprised of a plot and a room constructed thereon till 13.06.1994 when the appellant/ defendant, taking advantage of the fact that the plaintiffs were not residing on plot no.2, took forcible possession of the same. According to the plaintiffs, certain field which also included the present plot was originally owned by one Vithoba Shivram. The property, thereafter, was transferred from one person to another and ultimately the plaintiffs purchased the same from Dashrath Fulsunge on 22.10.1975. The plaintiffs, therefore, sought the relief of possession, damages and mesne profits. 2 The defendant denied the claim of the plaintiffs and pleaded his ownership over the suit property. It was pleaded by the defendant that the suit property was first purchased by Bhimrao Deshpande in the year 1950 and Bhimrao Deshpande sold the property to Pannalal, the father of the defendant on 11.04.1963. The defendant claimed to be the legal heir of Pannalal, who died in the year 1993. The parties produced oral and documentary evidence on record and the trial Court, after appreciating the same, held that the plaintiffs had succeeded in proving that they were the owners of the suit property and had received possession of the same from their predecessor in title on 22.10.1975. The Courts further held that the defendant broke open the lock of the suit room and took forcible possession of the same on 13.06.1994. The Court, therefore, granted a decree for possession and damages in favour of the plaintiffs. The findings recorded by the trial Court were confirmed by the first appellate Court. In the first appellate Court, the defendant intended to produce certain documents, and therefore, filed an application under Order XLI Rule 27 of the Code of Civil Procedure. This application was, however, rejected by the Court on the ground that none of the conditions prescribed under the provisions of Rule 27 of order XLI of the Code of Civil Procedure could be 3 brought into play for permitting the defendant to produce additional evidence on record. The judgments passed by both the Courts are challenged in the instant second appeal. It is submitted on behalf of the appellant that both the Courts committed a serious error in misappreciating the evidence on record to hold that the plaintiffs had proved their ownership over the suit property. According to the learned counsel for the appellant, the plaintiffs had failed to prove the identity of the property. The learned counsel for the appellant further submitted that the first appellate Court ought to have allowed the application under Order XLI Rule 27 of the Code of Civil Procedure as the documents sought to be produced by the defendant at the appellate stage could have thrown much light on the controversy involved in the suit and the appellant had given sufficient reason for not producing them before the trial Court. It is, however, submitted on behalf of the respondents that the first appellate Court rightly considered that the defendant was not diligent in producing the documents in the trial Court though he was in a position to procure the same at the relevant time when the trial was in progress. It is further submitted on behalf of the respondents that in any case, the documents which were sought to be produced are not material for deciding the issue in question. It is also submitted on behalf of the 4 respondents that both the Courts have concurrently recorded a finding of fact in favour of the plaintiffs declaring their ownership over the property, and therefore, the finding should not be interfered with in a second appeal. Since the appellant had filed the pleadings, the copies of the evidence and the relevant documents along with the appeal memo, this Court had an occasion to peruse the same. Though it is strongly submitted on behalf of the appellant that the plaintiffs have failed to prove the identity of the property, it is conspicuous to note that it was not the case of the defendant that the plaintiffs had failed to describe the suit property properly or that the defendant was not in possession of the suit property which belonged to the plaintiffs and was, in fact, in possession of some other house property bearing house No.496 or 498. In the absence of the aforesaid plea in the written statement, it cannot be said that the plaintiffs have failed to identify the suit property which he claimed to have purchased from one Fulsunge in the year 1975. Both the Courts have concurrently held that the documentary evidence produced by the defendant on record clearly showed that he was the owner of some other property and not the suit property, whereas, the documentary evidence produced by the plaintiffs on record clearly showed that the plaintiffs were the owner of the suit property. 5 I have perused the documents which the appellant sought to produce before the first appellate Court. None of the documents, which were sought to be produced before the first appellate Court, relate to the property which is described in the suit. These documents will not be able to throw any light on the controversy in question. The first appellate Court had also not accepted the reasons stated by the appellant for not producing the same before the trial Court at the relevant time. In the facts of the case, it cannot be said that the appellate Court had committed a glaring error in rejecting the application filed by the appellant under Order XLI Rule 27 of the Code of Civil Procedure. Since the findings recorded by both the Courts are pure findings of facts, they do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE