1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1028 OF 2005 1 Rangnath s/o Sambhajirao Sarwade, age: 72 years, Occ Agril., 2 Ram s/o Rangnath Sarwade, age: 50 years, Occ: Agril., 3 Laxman s/o Rangnath Sarwade, age: 42 years, Occ: Agril., All R/o Phoaregaon, Tq. & District Latur. Appellants Versus 1 Gangaram s/o Nanarao Sarwade, age: 70 years, Occ: Agril., 2 Namdeo s/o Jaiwanta Sarwade, age: 75 years, Occ: Agril., 3 Babu s/o Namdeo Sarwade, age: 55 years, Occ: Agril., 4 Hanmanth s/o Namdeo Sarwade, age: 53 years, Occ: Agril., All R/o Poharegaon, Tq. & District Latur. Respondents Mr.S.S.Halkude, advocate for appellants. Mr.S.S.Shinde, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 10th August, 2009. P.C.: 2 1 This is an appeal by original defendant no.2 raising challenge to the concurrent judgments delivered by the Courts below. 2 Plaintiff-Respondent No.1 herein instituted Regular Civil Suit No.735/1983 claiming declaratory relief of ownership and perpetual injunction against defendants in respect of land S.No.11 admeasuring 9 acres and 27 gunthas. Plaintiff claims that shares of the parties i.e. plaintiff and defendants, have been ascertained long back. Plaintiff represents branch of one Vithal, whereas defendant no.1 represents branch of Jaiwant and defendant no.2 represents branch of Sambhaji. Vithal, Jaiwanta and Sambhaji were real brothers. 3 So far as case of defendant no.1 is concerned, he has admitted contentions raised by the plaintiff. Whereas, suit has been contested by defendant no.2. In the nutshell, contention of defendant no.2 is that consolidation record has been created after conducting due measurement and the matter cannot be decided on the basis of old record in the form of `pahani patrak' and 7/12 extracts. 4 The trial Court, however, after considering evidence led by the parties, came to the conclusion that the plaintiff has established his case and as such, passed decree in favour of the plaintiff. The judgment and decree passed by the trial Court was subject matter of appeal at the instance of defendants No.2, 5 & 6, being R.C.A. No.41 if 1994, which came to be partly allowed. At the appellate stage, an application was presented by defendant no.2 seeking leave to produce additional evidence. The additional evidence, which defendant no.2, wants to 3 place on record is in respect of record of measurement of pothissa conducted by revenue authorities in 1967. Defendant no.2-appellant herein has filed separate application seeking leave to file additional evidence, at appellate stage, in exercise of powers under Section XLI Rule 27 of the Civil Procedure Code. it is not disclosed that such an attempt was made before the first appellate Court and the application came to be rejected. Not only this, Civil Revision Application No.602/2007 was presented by original defendants no.2, 5 and 6, however, this Court refused to entertain said Civil Revision Application. 5 I have perused the order passed by first appellate Court rejecting the applications. The first appellate Court, while dealing with the applications, observed that no exceptional circumstances have been pointed out for exercise of jurisdiction in favour of defendants. It is required to be demonstrated for favourable consideration of request for admitting additional evidence, that the documents were not in possession of the party or could not be produced by him at the time when the decree appealed against was passed; secondly though they were on record, the Court has refused to admit in evidence and thirdly they are necessary for just decision of the matter. The first appellate Court observed that there was an opportunity to produce the documents before the trial Court and that appellants have not shown due diligence. The reasons set out by the first appellate Court in respect of refusal to exercise jurisdiction under Order XLI Rule 27 hold good while considering the instant application. Even otherwise, concurrent findings of facts recorded by the Courts below need not be interfered in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. No 4 substantial question of law arises for consideration in the appeal. 6 Appeal, therefore, stands dismissed. Civil Application No. 3865/2009 does not survive and stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa102805