Case: Akhilesh Singh @ Akhileshwar Singh Vs. Lal Babu Singh &amp; Others

2. The brief facts of the case which need to be noted for deciding this appealSuit No. 406/1973 was filed by one Sheo Prasad Singh (Grandfather of appellant before us) and his three sons seeking partition of their 1/4th share in joint family properties described in Schedule B, C and D of the plaint. In the plaint, it was pleaded that plaintiffs and defendants are descendants of a common ancestor. Kalpoo Singh had four sons. Plaintiffs represented branch of Sheo Prasad Singh whereas defendants represented other three branches.It was pleaded that there was a disruption in the joint family in or around 1963. Whereafter, all the branches of Kalpoo Singh separated in their mess, business and worship but cultureable land and residential houses remained joint. Order passed by Commissioner, Patna Division arising out of a proceeding for mutation on respective land was also in question. Trial court vide its judgment and decree dated 10.08.1976 decreed the suit of the plaintiff declaring 1/4th share of the plaintiff in the properties described in Schedule B, C and D. The defendants Lal Babu Singh & Ors. filed First Appeal No. 704 of 1976 against the judgment and decree of the trial court. During pendency of the First Appeal, thewho were appellant in First Appeal, filed various applications under Order LXI Rule 27 Code of Civil Procedure for acceptance of additional evidence in the First Appeal. The first application under Order LXI Rule 27 was filed on 27.10.1997 for accepting a Sale Deed dated 27.08.1992 on the record. Other applications filed for accepting additional evidence were I.A. No. 6457 of 1998, I.A. No. 3731 of 2011 and I.A. No. 5195 of 2016. High Court has passed an order on the I.A.s that applications shall be heard at the time of hearing of the appeal. The First Appeal came to be heard by the High Court on 08.03.2017. At the time of hearing, unfortunately, nobody appeared on behalf of appellant, who was respondent in the First Appeal. The High Court after hearing the learned counsel for theallowed I.A. No. 6457 of 1998, I.A. No. 3731 of 2011 and I.A. No. 5195 of 2016 by accepting the additional evidence, which was sought to be brought on record. Simultaneously, the High Court proceeded with the hearing of the appeal and relying on additional evidence allowed the First Appeal setting aside the judgment and decree of the trial court. The appellant aggrieved by the judgment of the High court has come up in thisreferring to the other I.A.s in Paragraphs 23, 24 and 25 of the judgment, the High Court allowed the three I.A.s, namely, I.A. No. 6457 of 1998, I.A. No. 3731 of 2011 and I.A. No. 5195 of 2016 and relying on the additional evidence, brought on the record and referring to admissions in the said documents, the High Court has allowed the First Appeal by setting aside the judgment and decree of the trial court.

Reasoning: The application dated 27.10.1997 having been rejected by the High Court, no further comment isAppellate Court admits the additional evidence under Order LXI Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by present appellant and his otherand what was relied before the High Court was that the appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, who are appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside.