Ashok Bhushan, J. - (1.) This appeal has been filed against the judgment of Patna High Court dated 08.03.2017 in First Appeal No. 704/1976 by which the First Appeal filed by defendants to the suit has been allowed setting aside the judgment and decree of the trial court decreeing the partition suit.
(2.) The brief facts of the case which need to be noted for deciding this appeal are:- Title Suit 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, the defendants- respondents, who 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 the defendants-respondents allowed 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 this appeal.
(3.) Learned counsel for the appellant contended that in event the High Court decided to admit the additional evidence under Order XLI Rule 27 CPC, the High Court ought to have given opportunity to the plaintiff-respondent to rebut the additional evidence brought on record by the defendants. The High Court having not given any such opportunity to plaintiff has committed serious error of procedure, which has caused great prejudice to present appellant vitiating the entire judgment of the High Court. It is submitted that the High Court in the additional evidence has relied on certain admissions by the appellant and other co-sharers whereas the appellant was not given any opportunity by the Court to lead evidence in rebuttal and explain the additional evidence relied by defendants-respondents. Learned counsel submits that the reliance on such additional evidence without giving opportunity to lead evidence in rebuttal had vitiated the entire procedure adopted by the High Court, vitiating the judgment and decree of the High Court.;