**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940**
**RSA.No. 322 of 2006**
**AGAINST THE JUDGMENT DATED 28-02-2006 IN AS 31/2001 of 1[st] ADDITIONAL SUB COURT, KOZHIKODE AGAINST THE JUDGMENT DATED 23-01-2001 IN OS 436/1996 of ADDITIONAL MUNSIFF COURT, KOZHIKODE**
## **APPELLANT(S)/APPELLANTS/RESPONDENTS.**
- **1 POOVANKULAM SAMRAKSHANA SAMITHY, REPRESENTED BY ITS CONVENOR, P.MANI, AGED 42,, S/O.KRISHNAN NAIR, NEDOLIPARAMBIL.**
**2 K.BALAN, AGED 60, S/O.MOOTHORAN, KUNIYATTIL.,**
**3. SURENDRAN, AGE 55, S/O APPU, ANGOTH**
**(ALL IN CHEVAYUR AMSOM DESOM OF KOZHIKODE TALUK).**
**BY ADVS.SRI.T.R.RAVI SRI.P.S.MURALI**
## **RESPONDENT(S)/APPELLANTS,.:**
**1. PUSHPAVENI AMMA, AGED 68 YEARS, [DIED] D/O.KUNHUKUTTY AMMA, PARAKOTH, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK.**
**2. K.HARIDASN, AGED 34 YEARS,**
- **S/O.NARAYANANN, CHEVAYUR AMSOM AND DESOM OF, KOZHIKODE TALUK.**
***ADDL. R3 TO R6**
**3. SOBHA, D/O PUSHPAVENI AMMA, PARAKOTH, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK PIN-673 017**
**4. RAMESH KUMAR, S/O PUSHPAVENI AMMA, PARAKOTH, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK PIN - 673 017**
**5. BHAGYALATHA, D/O PUSHPAVENI AMMA, PARAKOTH, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK PIN 673 017**
**6. VIJAYALAKSHMI, D/O PUSHPAVENI AMMA, PARAKOTH, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE ALUK PIN 673 017**
**LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. R3 TO R6 AS PER ORDER DATED 23.01.2013 IN I.A. NO. 2963 OF 2012.**
**R1,RADDL.3 TO 6 BY ADV. SRI.C.P.MOHAMMED NIAS**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**SKS**
## **P.B.SURESH KUMAR, J.**
===============
## **R.S.A. No.322 of 2006**
--------------------------------------------------
## **Dated this the 12[th] day of July, 2018**
## **JUDGMENT**
The plaintiffs in O.S. No. 436 of 1996 on the file of the Munsiffs Court, Kozhikode are the appellants in this second appeal.
2. The above suit was one for declaration and injunction. The case of the plaintiffs is that the suit property is a public pond and that the defendants are causing obstruction to their user of the pond claiming that the same is part of their property. The first defendant in the suit had, in fact, filed an earlier suit as O.S. No.468 of 1991 for a decree of permanent prohibitory injunction restraining certain others from trespassing into the plaint schedule pond. The case set
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up by the first defendant in the said suit was that the suit property is part of the property obtained by her in terms of Ext.A2 surrender deed. It was also her case that she later obtained Ext.A3 purchase certificate in respect of the same. The suits were tried together, treating O.S. No.468 of 1991 as the lead case. On an appraisal of the materials on record, the trial court dismissed O.S.No.468 of 1991 and decreed O.S.No.436 of 1996. The first defendant challenged the decisions in the suits in two separate appeals. A.S. No.30 of 2001 was the appeal preferred against the decision in O.S. No.468 of 1991 and A.S. No.31 of 2001 was the appeal preferred against the decision in O.S. No.436 of 1996. In A.S. No. 30 of 2001, the first defendant produced a few additional documents along with I.A.No.1025 of 2002 invoking Rule 27 of Order 41 of the Code of Civil Procedure. The appeals were later allowed by the appellate court placing reliance on the
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additional documents produced by the first defendant in A.S.No.30 of 2001. In terms of the common judgment, the appellate court decreed O.S. No. 468 of 1991 and dismissed O.S. No.436 of 1996. The plaintiffs are aggrieved by the decision of the appellate court in dismissing their suit reversing the decision of the trial court. According to the plaintiffs, the procedure adopted by the appellate court in rendering the impugned judgment placing reliance on the documents produced in I.A.No.1025 of 2002 is illegal.
3. Heard the learned counsel for the appellants as also the learned counsel for the respondents.
4. The learned counsel for the respondents raised a preliminary objection as to the maintainability of the second appeal. According to the learned counsel, in so far as A.S. No.30 of 2001 preferred by the first
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defendant was allowed by the appellate court by the very same judgment and O.S. No.468 of 1991 was decreed reversing the decision of the trial court, the plaintiffs should have challenged the decision in A.S. No.30 of 2001 also and in the absence of any challenge against the decision in A.S. No.30 of 2001, the second appeal is not maintainable as the findings rendered by the appellate court in A.S. No.30 of 2001 would operate as _res judicata_ against the plaintiffs. On a perusal of the materials on record, it is seen that the plaintiffs are not parties to O.S.No.468 of 1991. In so far as the plaintiffs in O.S. No.436 of 1996 are not parties to O.S. No.468 of 1991, according to me, the decision in O.S. No.468 of 1991 would not bind the plaintiffs and therefore, it is not necessary for them to challenge the decision in A.S. No.30 of 2001 for the purpose of pursuing the second appeal preferred against A.S. No.31 of 2001. The
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preliminary objection raised by the respondents is thus overruled.
5. It is seen that as many as seven substantial questions of law were formulated at the time of admission of the second appeal. After hearing the parties, the substantial question of law arising for consideration in the second appeal is re-framed thus :
Whether the first appellate court is justified in reversing the decision of the trial court placing reliance on the additional documents produced in appeal, the admission of which have been objected to by the plaintiffs?
6. As pointed out by the plaintiffs, it is seen that the impugned decision was rendered by the appellate court placing reliance on Exts.A7 to A13 documents produced by the first defendant in A.S.No.30 of 2001. As noted, the marking of the said documents was objected to by the plaintiffs. The objection preferred by the plaintiffs to I.A.No.1025 of 2002 is part of the records. In the light
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of the objection preferred by the plaintiffs, the appellate court has not accepted the said documents in evidence. Instead, the appellate court has only passed an order to receive the documents subject to proof. The order passed by the appellate court in this connection on 22.11.2014 reads thus :
_“Brought before me. Receive the documents subject to proof. I.A. allowed.”_
In the circumstances, according to me, the appellate court should have asked the first defendant to prove the said documents in accordance with law at the appellate stage or in the alternative, should have remitted the suit to the trial court for fresh disposal so as to enable the first defendant to prove the said documents with opportunity to the plaintiffs to adduce rebuttal evidence. It is apposite in this context to refer to the decision of the Apex Court in **Akhilesh Singh v. Lal Babu Singh** [(2018) 4 SCC 659] dealing with the procedure to be
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## adopted by the courts in matters of this nature. Paragraph
## 12 of the said judgment reads thus :
_“Order 41 Rule 27 CPC, which deals with the provision of additional evidence in appellate court, provides for the grounds and circumstances on which the appellate court may allow such evidence or documents or witnesses to be examined. Order 41 Rule 27 sub-rule (2) further provides that wherever additional evidence is allowed to be produced by an appellate court, the court shall record a reason for its admission. Order 41 Rule 27 is silent as to the procedure to be adopted by the High Court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the appellate court to grant opportunity to the other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order 41 Rule 27.”_
As noted, the appellate court has not followed the said course of action and the plaintiffs have not been given an opportunity to give rebuttal evidence before allowing the appeal preferred by the first defendant placing reliance on the additional documents produced by the first defendant in the appeal. The procedure adopted by the appellate court is, therefore, faulty. The question formulated for decision is thus answered in favour of the plaintiffs.
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In the result, the second appeal is allowed and the appellate court is directed to dispose of A.S.No.31 of 2001 afresh. In so far as the appeal is of the year 2001, the appellate court is directed to dispose of the same, within four months from the date of receipt of a copy of this judgment. The parties are directed to appear before the first appellate court on 01.08.2018.
**sd/P.B. SURESH KUMAR, JUDGE**
SKS
