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Judgment
Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 04.05.2009 which has reversed the finding of the trial Judge. The trial Judge had dismissed the suit of the Plaintiff. The impugned judgment had reversed it; suit of the Plaintiff stood decreed.
This is a second appeal. It has been admitted and on 12.04.2010, the following substantial question of law was formulated:
Whether the findings of the Appellate Court perverse in law and on facts?
Thereafter an application under Order XLI, Rule 27 of the the CPC (hereinafter referred to as the "Code") had been preferred by the Respondent. He sought permission of the Court to place on record a document termed as Annexure "A" which was the mutation qua the disputed property recorded on 14.05.1984. It was submitted that this document has a material bearing on the facts of the case.
In reply the counsel for the Appellant had disputed the contents of the said document; he had also filed an additional affidavit to place on record sale deed dated 27.10.1937 qua the said suit property. Contention was that Umrao Singh had executed this sale deed in favour of Pandit Pran Nath Sarwaria s/o Pandit Shri Ram Sarwaria and this document has a relevant bearing on the facts of the instant case.
After some arguments, it has been agreed upon between the parties that the documents of both the respective parties be considered by the fact finding court i.e. first appellate court. Both the parties are agreeable that the matter be remanded back to the District & Sessions Judge for the said purpose. This is a fit case for remand. The first appellate court shall answer the following issue:
Whether the sale of the property i.e. measuring 780 square yards in property bearing No. 50 to 53 in Abadi of Vishwas Nagar, Delhi comprised in khasra Nos. 807 & 806 situated in revenue estate of Mauja Chandawali alias Shahdar, Delhi was effected on 21.10.1937 and if so its effect.
A Bench of this Court in 2008 (154) DLT 80 Jammu and Kashmir Bank Ltd. v. Digvijay Cement had noted that where additional evidence is taken on record, the appellate court must not determine the issue in appeal; the correct approach in such a case is to frame an issue and then remit the matter back to the trial court for a finding on it; this had been appreciated by the Apex Court in Banarsi Das Vs. Seth Kanshi Ram and Others,
Both the parties are accordingly permitted to lead their respective evidence; the court shall thereafter return a finding on it.
Appeal is disposed of in the above terms. Parties are directed to appear before the District Judge, Karkardooma Courts on 04.07.2011 at 10:30 AM who shall assign the case to the concerned first appellate court