JUDGMENT R.B. Mehrotra 1. This is a defendant's second appeal. The plaintiff respondent filed a suit for demolition of the constructions made by the defendant on the land alleged to be rasta shown by letters Ka, Kha, Ga and Gha in the plaint map and for a permanent injunction restraining the defendant from interfering with the plaintiff's user over the land Ka, Kha, Ga and Gha as rasta and further restraining the defendant from making any construction on this land 2. The suit was contested by the defendant-appellant on the ground that no rasta of the plaintiff has been existing towards north of his house, that the wall of the defendant is old, that the plaintiff has not been using the same as rasta and that the rasta of the plaintiff is towards east of his house and the suit of the plaintiff is liable to be dismissed with costs. After allowing the parties to lead evidence, the learned Munsif dismissed the plaintiff's suit and held that the plaintiff has failed to prove that a 3 feet pucca rasta has been existing over the land Ka, Kha, Ga and Gha towards north of the plaintiff's house. The learned Munsif further held that the plaintiff has failed to prove that he acquired any casementary right or other legal right to pass through the alleged rasta in dispute for egress and ingress from his bouse. Ultimately the learned Munsif held that the plaintiff has not been able to prove that he has any title by ownership or adverse possession for more than 12 years over the land Ka, Kha, Ga and Gha and has also failed to establish bis right to use the land Ka, Kha, Ga and Gha as rasta. As such the plaintiff is not entitled to any relief either for demolishing the wall or for any injunction against the defendant. Aggrieved by the aforesaid judgment, the plaintiff preferred an appeal which was heard by the I Addl. District Judge, Nainital. In the appeal, the plaintiff filed three documents along with an application under Order 41 rule 27 of the Code of Civil Procedure. The aforesaid application was allowed and the following order was passed on the said application :- "Heard. The original is in bad shape. Let it be returned back. The copy be admitted and exhibited. v Sd/- 26-2-77." 3. The aforesaid application was allowed and the following order was passed on the said application :- "Heard. The original is in bad shape. Let it be returned back. The copy be admitted and exhibited. v Sd/- 26-2-77." 3. By means of this application, the plaintiff brought on record a sale deed in favour of the defendant in respect of the adjacent house and sanctioned map of the defendant for constructing his house which existed after the aleged rasta. The lower appellate court on the basis of the map produced by the plaintiff by means of evidence filed along with an application under Order 41 rule 27 of the Code of Civil Procedure held. "The map sanctioned shows that. 3 ft. Rasta existed as shown there in to the north of the plaintiff's house and further Rasta was shown to the south of the defendant's Baithak while the Board by order dated 20-8-1970 passed on the defendant's application approved the map subject to the condition that 4 ft. Rasta was left instead of 3 ft. to the south of the Defendant's construction. I do not think the defendant was entitled to disobey the terms of sanction and construct in violation of the same The existence of the Rasta was proved even by the map submitted by the defendant herself and it was quite immaterial as to who was the owner of the land on which the Rasta passed. It was the duty of the court to enforce the law and also upheld statutory orders passed by an autonomous body. Eyes cannot be closed to the terms of sanction granted to the defendant nor can the court permit her to construct any violation of the statutory permission granted by the Board?" 4. On the basis of the aforesaid finding, the lower appellate court held ;- "The defendant shall be compelled to leave 4 ft Rasta in terms of sanction order dated 20-7-1970 although the plaintiff has not prayed for the same. It may be noted that this will be done in dis-charge of court's duty to enforce statutory orders coming to its notice." The lower appellate court accordingly allowed the appeal and directed demolition of the defendant's house and directed that the defendant shall leave 4 ft. land towards north of the plaintiff's house before making any construction in future. 5. It may be noted that this will be done in dis-charge of court's duty to enforce statutory orders coming to its notice." The lower appellate court accordingly allowed the appeal and directed demolition of the defendant's house and directed that the defendant shall leave 4 ft. land towards north of the plaintiff's house before making any construction in future. 5. Aggrieved thereby, the defendant has preferred the present second appeal in this Court. 6. I have heard Sri G. N. Verma, learned counsel for the defendant- appellant and Sri A. N. Bhargava, learned counsel for the plaintiff-respondent. Sri G. N. Verma has raised two issues which are substantial questions of law. Firstly, he submitted that an application under Order 41 rule 27 of the Code of Civil Procedure could have been allowed within the frame work of the aforesaid rule and the order passed by the first appellate court admitting and exhibiting the additional evidence at the appellate stage is completely outside the purview of the aforesaid provision of the Code of Civil Procedure. Sri G. N. Verma has also submitted that in any case the first appellate court was under an obligation to grant opportunity to the defendant-appellant to rebut the additional evidence filed by the plaintiff- respondent in the first appellate court. Admittedly no such opportunity was given. For this reason also, the order admitting the additional evidence is vitiated in law. For convenience, order 41 rule 27 of the Code of Civil Procedure Is reproduced below ;- "27. Production of additional evidence in appellate court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that not withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Where ever additional evidence is allowed to be produced by an Appellate Court, the Court shall record treason for its admission" 7. The order passed by the first Appellate Court admitting and accepting the additional document filed in the appeal Is clearly beyond the frame work of the aforesaid provision, as such is vitiated in law. Moreover, there is substance in the submission of Sri verma that if any additional evidence was permitted to be brought on record in the appellate Court, the first Appellate Court was under an obligation to afford an opportunity to the other side to file evidence In rebuttal. No such opportunity was given in the present case. For this also, the order admitting' the additional evidence is vitiated in law. The present second appeal has been decided on the basis of additional evidence admitted by the first Appellate Court. Such additional evidence was brought on record in violation of order 41 rule 27 of the Code of Civil Procedure. As such the order of the lower appellate court suffers from a legal error and is liable to he set aside on this ground alone. However, on merits also, the order of the lower appellate court doserves to be set aside. It is settled principle of law that the plaintiff can succeed on its own strength. The plaintiff cannot succeed on the weaknesses of the defendant. The first appellate Court has decreed the suit of the plaintiff beyond the prayer made in the plaint and cot on the basis that the plaintiff has proved his case but on the basis that the defendant has made constructions in violation of the sanctioned plan The municipal authorities can take appropriate action against the defendant for making constructions in violation of the sanctioned map but the plaintiff's; suit cannot be decreed on the basis which was not the basis of the suit. The plaintiff never prayed in his plaint that the defendant's wall is liable to be demolished as the same has been constructed in violation of the sanctioned map. The first Appellate Court crearly erred in decreeing the plaintiff's suit on the basis that it has to enforce the statutory order. The plaintiff never prayed in his plaint that the defendant's wall is liable to be demolished as the same has been constructed in violation of the sanctioned map. The first Appellate Court crearly erred in decreeing the plaintiff's suit on the basis that it has to enforce the statutory order. The suit of the plaintiff was not for enforcing the statutory orders but was for protecting her right over the Rasta The first Appellate Court has clearly misdirected itself in decreeing the plaintiff's suit beyond his pleadings in the plaint. 8. On both the counts, the order passed by the first Appellate Court deserves to be set aside. Since the first Appellate Court has misdirected itself in admitting the additional evidence beyond the provisions of order 41 rule 27 of the Code of Civil Procedure and has also misdirected itself in decreeing the sat beyond the pleadings of the plaintiff, the order passed by the first Appellate Court is set aside. The matter is remanded back to the first Appellate Court to decide the appeal afresh on merits. The second appeal is accordingly allowed with costs. The order dated 18-3-1977 passed by the I Additional District Judge, Nainital, in Civil Appeal No. 44 of 1976, is set aside. The matter is remanded back to the court of the District Judge, Nainital for deciding the Civil Appeal afresh in the light of the observations made in the judgment. The District Judge may decide the appeal himself or transfer it to some other court of competent jurisdiction. Appeal allowed.