CIVIL APPEAL 444 of 1989 on 18 January 1983

ORAL JUDGMENT:

These two appeals can be disposed of by common judgment since they have been preferred against the common judgment in two civil appeals. The original defendant is the appellant. The parties hereinafter shall be referred to as plaintiff and defendant.

2. The facts giving rise to these appeals are as follows:

Respondent Rasiklal instituted two Civil Suits bearing 78 of 1983 and 42 of 1988, while the appellant Mishrilal had instituted civil suit No. 134 of 1983. All these three suits were tried together by the learned Civil Judge and decided by a common judgment. He had dismissed all the three suits. Rasiklal the present respondent felt aggrieved by the dismissal of his suits and therefore preferred two appeals being Regular Civil Appeal No. 444 of 1989 and 445 of 1989. Mishrilal the present appellant did not prefer any appeal though his Civil Suit No. 124 of 1983 was dismissed.

3. The Civil Suit No. 78 of 1983 was filed by respondent-plaintiff for permanent and mandatory injunction. The plaintiff had purchased his house from one Kantilal Patel by registered sale deed dated 18.01.1983 shown by letters ABCD in the plaint map. Defendant who is the neighbouring land owner started making construction on the site shown by letters HGBV. Defendant had purchased the site EFGH from one Krishnakumar Jamdar by two separate sale deeds. Plaintiff submits that the site which has been sold by the said Krishnakumar to defendant was practically a Nala. The plaintiff submits that defendant in order to make construction over the said site had constructed an Ota. Defendant according to plaintiff is carrying out the said construction without obtaining permission of the Municipal Council. He has erected the walls up to the height of 4 to 5 feet. It is the contention of the plaintiff that his house is very old and is in good condition. There is a Nala (stream) which flows from the eastern side of the plaintiff’s house. In order to protect the said house from the Nallah the plaintiff had constructed two pillars shown by letters LPRS and MNOT. Plaintiff had made a request to the defendant not to construct the wall but the defendant refused. According to plaintiff there are three windows in the eastern wall of his house and he has been taking light and air through these windows for the past more than 60 years and he has therefore, acquired an easementary right of light and air through these windows and if the walls are constructed the valuable right of the plaintiff would be affected. It is further the contention of the plaintiff that defendant has made construction of latrine by encroaching upon the site of the plaintiff and plaintiff on this count seeks demolition of the construction made by the defendant.

4. Defendant has filed Written Statement and denies that plaintiff is the owner of the site ABCD. He however admits that he has purchased site EFGH from Kirshkumar by two separate sale deeds. Defendant denies that the site purchased by him is a Nala. Defendant further denies that he has started the constructions without obtaining the permission from the Municipal Council. Existence of the pillars is also denied. According to defendant he

had applied to the Municipal Council and Municipal Council had granted permission. The construction is being made in accordance with the said permission. Defendant submits that the predecessor in title of the plaintiff never objected to the defendant’s construction at all. Further it is contended that the spot was inspected by the Court at the time of decision of temporary injunction application and it was found that window in the eastern wall was a new one. Plaintiff according to defendant has therefore not acquired any easementary right at all. In the second suit also plaintiff had made similar pleadings and has sought for similar remedy.

5. Learned Judge of the trial Court had framed issues in all the three suits separately. He found that plaintiff was the owner of the house shown by letters ABCD. He found that construction is sought to be made by the defendant was not one without permission. The defendant’s act was not illegal. The plaintiff had not acquired any easementary right. He has not acquired any right to light and air as alleged. Holding so he dismissed the suit.

6. Learned Judge of the appellate court on the other hand found that defendant was making construction on the land which does not belong to him. The window through which the plaintiff was taking light and air is an old one and plaintiff has easementary right over the same. She also found that permission granted by the Municipal Council was in fact sub judice and it was granted against bye laws. Holding so she decreed the suit and ordered demolition. Defendant therefore feels aggrieved and prefers these two appeals.

Appeals were admitted by this Court on the following substantial question of law:

As to whether the Appellate Court has erred in relying upon a document i. e. sale deed which was neither on record nor proved and for production of which no application was filed nor any permission was obtained?

I have heard the learned Senior Counsel Shri Sen for the appellant and Shri Chandurkar for the respondents.

7. We have seen that the trial Court had dismissed all the three suits i. e. one filed by the present appellant and two filed by the present respondent. Besides the above substantial question of law no other question of law was infact raised before me nor is it raised in the memo of appeal nor a request was made for formulating any other substantial question of law. It must be therefore assumed that no other substantial question of law is sought to be urged. A substantial question of law should be such that if that is answered in the affirmative the result of the appeal must go in favour of the appellant. To my mind even if this substantial question of law is answered in the affirmative result may not necessarily go in favour of the appellant.

8. Be that as it may. Shri Chandurkar learned counsel for the respondent admits before the Court that the sale deed dated 01.09.45 which is referred by the appellate Court was not filed in either the trial Court or in the District Court in the present proceedings. He submits that there were at that time other proceedings pending between the parties and the said sale deed dated 01.09.45 was filed in Civil Suit No. 124 of 1992. He submits that in that suit application for injunction was filed which was

rejected and against that Misc. Civil Appeal was presented being Appeal No. 108 of 1992. He also submits that this appeal No. 108 of 1992 was heard along with two appeals No. 444 and 445 of 1989 and all these three appeals were decided on the same day. He submits that since those three appeals were heard together and since the parties and disputes were the same learned Judge has taken into consideration the sale deed dated 01.09.45 in civil suit No. 124 of 1992. To substantiate this he files before this Court the certified copy of Roznama and the judgment in Misc. Civil Appeal No. 108 of 1992. In the Roznama it is clearly mentioned that three appeals were heard together and closed for orders together.

9. However the question would be whether the evidence in another appeal or suit could be read in this appeal. The question would also be whether the appeal could be decided on an evidence which was not before the trial Court. Answer has to be in the negative. The appeal has to be decided only on the basis of the evidence tendered in the trial Court. If any other document or evidence upon which trial Court did not decide suit is to be considered for the first time in appeal provisions of Order 41 Rule 27 would come into operation. Unless the appellant or the respondent or the Court complies with such provisions no other evidence could be taken into account except the one as tendered in the trial Court in that particular suit. To my mind therefore the appellate Court could not have read in evidence the sale deed dated 01.09.45 as the provisions of order 41 Rule 27 were not complied.

10. Even though the question is answered in favour of the appellant the result cannot go in favour of the appellant in view of the other findings but then it appears to me that it would be unfair to dismiss the appeal for that reason and confirm the decree. The fact is that the Court had considered the document not on record. Perhaps it did so because the appellant referred to it and the other party may not have objected to it being read while the arguments were being heard. The parties therefore certainly intended that Court may look into that document but then technical provision of Order 41 Rule 27 were not complied.

11. Respondent has filed on record of this Court certified copy of the sale deed dated 01.19.45. The production of those documents filed in this Court has to be allowed. Production has to be allowed because the respondent always intended to rely on those documents before the first appellate Court and the appellant had not objected to referring to the documents filed in another suit when the arguments were advanced. Appellant since then is aware of the sale deed dated 01.09.45. Respondent is not given an opportunity to prove those documents. Respondent would suffer unnecessarily. Since the appellant did not object to refer to such documents before the appellate Court the appellant too would suffer if I merely answer the question of law in favour of the appellant and dismissed the appeal. In the circumstances I find that it would be necessary in fact to remit the matter back to the first appellate Court and to give opportunity to both the parties to make out their case once again. I would therefore allow the appeal and remit the appeals to the District Judge. The District Judge shall decide the appeals afresh after giving an opportunity of hearing to the parties. The District Judge may consider the sale deed dated 01.09.45 which is filed in this Court. If respondent wants to tender any evidence in proof of the sale deed he may allow the respondent to prove the said sale deed. He may also consider the question whether formal proof of such document is necessary in view of the fact that the sale deed appears to be more than 30 years old. After considering the effect of this document and the other evidence the District Judge may decide the appeals once again afresh. No order as to costs.

Shri Sen, learned Senior Counsel for the appellant submits that the matter may be directed to be listed before any other Judge than one who has decided the matter in the First Appeal. The learned District Judge therefore, may assign the matter to any other Judge.

JUDGE

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