MAHENDRA DAYAL,J. - (1.) Heard the learned counsel for the parties and perused the impugned order.
(2.) This writ petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 01.09.2016 passed by the Additional District Judge, Court No.1, Ambedkar Nagar in Civil Appeal No.07 of 2014, whereby the application filed by the petitioners under Order 41, Rule 27 CPC for additional evidence, has been rejected.
(3.) It has been contended that the controversy involved in the appeal is as to whether the original plaintiff Neemar (now deceased) executed the sale deed in respect of land Gata No.125 situated in village Gosarpur, Pargana and Tehsil, Akbarpur, District Ambedkar Nagar. The suit for cancellation of sale deed was filed by Neemar himself but during the pendency of the application he died. The petitioners who allegedly purchased the property became owners and applied for mutation which was allowed in their favour. Their names were also recorded in the revenue record. They are also in actual possession of the said property. During the course of proceedings before the trial court, when the original plaintiff died, the opposite party no.2 was substituted. However, the learned trial court by the judgment and order dated 30.01.2014 decreed the suit and cancelled the sale deed executed by the original plaintiff in favour of the petitioners. Since there is a dispute as to whether the original plaintiff executed any sale deed, a necessity arose that the thumb impression of the original plaintiff as available on the sale deed, be compared with his signatures available on the plaint, so that it may be ascertained as to whether he executed sale deed in favour of the petitioners or not.This was necessary in order to adjudicate the controversy involved in this case but the learned appellate court rejected their application only on the ground that the application has been moved with intention to delay the disposal of appeal. It has been submitted on behalf of the petitioners that the power under Order 41, Rule 27 can be exercised by the appellate court to accept any additional evidence which is necessary for proper adjudication of the dispute.;