V.K. Shukla, J. - (1.) IN Second appeal No. 985 of 2006, Shaukat (since deceased) v. Smt. Nisar Begum and Anr. this Court proceeded to pass following: After respective arguments have been advanced, undisputed factual position is that in the present case trial court while proceeding to decide the suit as well as issue Nos. 1, 2 and 3 on the basis of scrutiny and evidence which was available on record and including own statement made by the Plaintiff's witnesses, recorded categorical finding of fact that Plaintiff -Respondent No. 1 was not at all owner in possession of the property in question and further sale deed in question had not at all been executed by legal heir and representative of Palta, as it was not at all established that Nizammuddin, Jalaluddin and Khurshid were the legal heir of late Palta. The judgment of the appellate court has also been looked into. Appellate court while deciding the issue No. 2 on the basis of entries made in Municipal records has proceeded to hold that Palta was the owner of the property and has proceeded to record finding that Shaukat has the capacity of the tenant, but at no point of time, appellate court has proceeded to reverse categorical finding of fact which has been recorded that said legal heirs and representatives who executed sale deed in favour of the Plaintiff -Respondent No. 1 had no authority to execute the same and said issue has been dealt with by the appellate court by proceeding to mention that Defendant -Appellant has no authority to question the validity of the same. The view of the lower appellate court is totally erroneous on this score, inasmuch as precise case of the Plaintiff -Respondent No. 1 had been based on the said sale deed and on the basis of said sale deed they have acquired title and were entitled for possession, then this issue went to the root of the matter and in all eventuality ought to have been answered as only lawful owner is entitled for decree of eviction, in this background lower appellate court has clearly fallen in error, as such judgment and decree of lower appellate court can not be sustained. Consequently, judgment and decree dated 26.8.2006 passed by the Additional District Judge, Court No. 13, Agra in Civil Appeal No. 381 of 1998 (Smt. Nisar Begum v. Shaukat through his heirs and legal representative No. 1/1 to 1/6 and Anr.) is set aside. Matter is remitted back to lower appellate court for deciding afresh, preferably within period of two months from the date of production of certified copy of this order. With these observations, present appeal is allowed.
(2.) AFTER the said judgment had been delivered, matter was taken up by appellate court, then an application was moved by the Petitioner under Order 41 Rule 27 Code of Civil Procedure, which was objected to, and thereafter, the appellate court proceeded to reject the said application on the ground that none of the prerequisite conditions provided for undertaking additional evidence was fulfilled. At this juncture, present writ petition has been filed. Sri J.S. Pandey, Advocate, learned Counsel for the Petitioner contended that the documents in question were necessary, as it would have enabled the concerned appellate court in pronouncing the judgment in its correct perspective, as such writ petition deserves to be allowed.
(3.) COUNTERING the said submissions, Sri Parvez Alam, Advocate, appearing for the Respondents, on the other hand contended that no good ground has been made out to interfere with the order impugned.;