L. MOHAPATRA, J. ( 1 ) DEFENDANTS 2, 9 and 10 are the appellants before this Court. Respondent No. 1 filed the suit for partition of the B and C schedule properties and the suit having been decreed in the manner mentioned in the judgment and decree of the trial Court, this appeal has been filed. ( 2 ) BEFORE discussing the rival claims of the parties to the suit, it is necessary to refer to the genealogy of the family for convenience. (See Genealogy Table below) the above genealogy indicates relationship between the plaintiff and the defendants 1 to 8. B and C schedule properties are ancestral homestead lands of the family of (Contd. on Col 2) the plaintiff and defendants 1 to 8 and had been recorded in the names of Rama Pati. Bhabani Dibya, Bhagaban Pati, Gouri Pati. Kanhu Pati, Sripati Pati and Nari Pati. Case of the plaintiff and respondent No. 1 is the original ancestor Panu Pati had two sons namely. Bauri and Balaram and after death of Panu Pati both Bauri and Balaram received 8 annas share each. In the year 1965. when there was a partition by metes and bounds, out of the homestead plots, the properties described in Schedule B fell to the branch of Bauri and the properties described in C-schedule fell to the branch of balaram and after such partition both the branches were possessing their shares exclusively. Further case of the plaintiff is that arjunt belonging to Branch of Bauri died in the year 1971 leaving behind his brother lochani and! sister Charu who is defendant no. 1 before the Court below. Lochani died leaving behind his sister Charu as sole legal heir. So far as Laxman is concerned, he died leaving behind his daughter Bhabani who inherited 1/4th share of Bhabani which fell to share of Bauri. On the death of bhabani, Lochani and Arjunl inherited said l/4th share as reversioners and accordingly both have got 8 annas share in the family properties. According to the plaintiff, lochani died issueless and Charu had one son namely Narayan who claims to be the son of Lochani. Further case of the plaintiff is that C-Schedule properties fell to the branch of Balaram in which plaintiff had l/6th share, defendant No. 2 had l/5th share, Alekha had 1/6th share and Jujesthi had 1/6th share. According to the plaintiff, lochani died issueless and Charu had one son namely Narayan who claims to be the son of Lochani. Further case of the plaintiff is that C-Schedule properties fell to the branch of Balaram in which plaintiff had l/6th share, defendant No. 2 had l/5th share, Alekha had 1/6th share and Jujesthi had 1/6th share. So far as 1/3rd share of padana, out of 8 annas of branch of Balaram is concerned, the same was inherited by his two sons, Sripati and Nari. Nari sold his 1/6th share to Basudev Panda who is the daughters son of Sripati. Sripati transferred his 1/6th share to Uma, one of his two daughters by registered deed of gift. Thus the C-schedule lands which fell to the share of the branch of Balaram, Basudev and Uma together had 1/3rd share and Uma died leaving behind her son Bidyadhar Das who inherited her l/6th share. On 7-1-1959 bidyadhar sold his l/6th share in c-schedule land to Basudev Panda. Basudev Panda had earlier got 1 /3rd share apart from l/6th share of Bidyadhar purchased by him and he sold his l/3rd share in favour of alekh Pati (defendant No. 6 ). defendant No. 2 and the plaintiff. On 30-9-1961, from out of the purchased properties as aforesaid, plaintiff claimed to have l/4th share. On 25-4-1962 Alekh sold 1/4th share from out of the purchased land under a registered sale deed on 30-9-1961 to defendants 8, 2 and plaintiff and from out of the said purchased properties plaintiff claims l/3rd share. Apart from the above, plaintiffs further claim is that on 28-2-1967 he purchased A0. 02 decimals from out of plot No. 2507 (B-sched-ule) from Arjuni Pati and on 8-7-1970, plaintiff, defendant Nos. 2, 8 and Alekh purchased A0. 01. 3 kadis from the suit plot No. 2508 from Lochani Pati in which plaintiff claims to have l/4th share. Again it is claimed that the plaintiff and defendants 2 and 9 purchased A0. 02. 4 kadis from suit plot No. 2507 and A0. 00. 6 kadis from the suit plot No. 2508 from Arjuni Pati in which plaintiff claims to have l/3rd share. On the basis of above, plaintiff claims partition of the properties including the lands purchased by him under different deeds dated 30-9-61, 25-4-62, 28-3-67, 8-7-70 and 11-9-70. 02. 4 kadis from suit plot No. 2507 and A0. 00. 6 kadis from the suit plot No. 2508 from Arjuni Pati in which plaintiff claims to have l/3rd share. On the basis of above, plaintiff claims partition of the properties including the lands purchased by him under different deeds dated 30-9-61, 25-4-62, 28-3-67, 8-7-70 and 11-9-70. ( 3 ) DEFENDANTS 2 to 9 filed written state ment stating that in the year 1955 there was a partition by metes and bounds between two branches of Bauri and Balaram in respect of the B and C schedule properties belonging to the family. In the C schedule properties allotted to branch of Balaram. plaintiff had 1/6th share, Jujesti had 1/6th share and Basudev and Uma together had l/3rd share. Uma died leaving behind her son Bidyadhar who inherited her 1/6th share. On 7-1-59 Bidyadhar sold his 1/6th share to Basudev Panda, who after such purchase, acquired l/3rd share in the c-schedule properties. On 30-9-61 Basudev panda sold his 1/3rd share in favour of alekh Pati, defendant Nos, 2 and 8 and the plaintiff. On 25-4-62 Alekh sold his 1/4th share in the aforesaid purchased lands to defendant Nos. 2, 8 and plaintiff and his l/6th share in C-schedule properties was inherited by his legal heirs, defendants 3 to ( 4 ) ON 8-7-70 the plaintiff, defendants 2 and 8 purchased Ac. 0. 0. 1. 3 kadis from the suit plot No. 2508 from Lochani Pati by registered sale deed and on 11-9-70 the plaintiff, defendants 2, and 9 purchased a0. 00-04 kadis from out of plot No. 2507 and ao. 00-06 kadis from suit plot No. 2508 from arjuni Pati. Again on 14-12-70. defendants 2, and 9 purchased A0-01-909 sq. links from plot No. 2507 and A0. 02-81 sq. links from plot No, 2502 from Arjuni Pati and remained in possession of the same. It is also stated that on 18-5-71 defendants 2 and 9 purchased Ac 0. 00-966 sq. links from suit plot no. 2507 and A0. 01-360 sq. links from suit plot No. 2502 and AO. 01-764 sq. links from plot No. 2501 from Lochani Pati and Arjun pati. Said Arjun Pati died issueless in 1971 and his sister Charu had succeeded to the properties as sole legal heir. 00-966 sq. links from suit plot no. 2507 and A0. 01-360 sq. links from suit plot No. 2502 and AO. 01-764 sq. links from plot No. 2501 from Lochani Pati and Arjun pati. Said Arjun Pati died issueless in 1971 and his sister Charu had succeeded to the properties as sole legal heir. In the last paragraph, it was contended by the aforesaid defendants that they have no objection if partition is effected respecting their possession in the suit properties. ( 5 ) THE learned Subordinate Judge. Japur considering the pleadings of the parties framed seven issues and issue No. 5 relates to the question as to whether there was any partition of the suit properties by metes and bounds in the year 1950. On consideration of the evidence, learned subordinate Judge held in categorical terms that the properties involved in the suit had not been partitioned by metes and bounds. While answering issue Nos. 3 and 6 the trial court held that the defendants 10 to 17 have no interest in the suit lands and the plaintiff and other defendants are entitled to share as mentioned in the judgment. On the above findings, the suit was decreed in the following manner. Schedule B lands of the plaint1. Defendant No. 10-Plot No. 2501-Ac0. 09 (whole ). Plot No. 2502-part-Ac0. 04. 4 kadis. 2. Defendant No. 1-Plot No. 2502-part-Aco. 02. 06 kadis plot No. 2507-part-Aco. 04. 06 kadis plot No. 2508-part-Aco. 04. 01 kadi3. Plaintiff -Plot No. 2507-part-Aco. 02. 08 kadis plot No. 2508-part-Aco. 00. 5-1/4 kadis4. Defendant No. 2-Plot No. 2507-part- aco. 00. 08 kadis plot No 2508-part-Ac0. 00. 5- kadis5. Defendant No. 8-Plot No. 2508-part- ac0. 00. 3- kadis ( 6 ) DEFENDANTS 3 to 7-Plot No. 2508-part- aco. 00. 3- kadis ( 7 ) DEFENDANT No. 9-Plot No. 2507-part- aco. 00. 06 kadis plot No. 2508-part-Ac. 0. 00. 02 kadis schedule C lands of the plaint 1. Plaintiff- 5/18 share. 2. Defendant No. 2-5/8 share 3. Defendant No. 8-5/18 share 4. Defendant Nos. 3 to 7-1/6th share. ( 8 ) THE only question raised by Mr. B. H. Mohanty, learned counsel appearing for the appellants is that the defendants 2 to 9 in their written statement had stated that by two registered sale deeds dated 14-12-70 and 18-5-71 they had purchased a Moiety share in Schedule B property from Arjuna pati and Lochan Pati. ( 8 ) THE only question raised by Mr. B. H. Mohanty, learned counsel appearing for the appellants is that the defendants 2 to 9 in their written statement had stated that by two registered sale deeds dated 14-12-70 and 18-5-71 they had purchased a Moiety share in Schedule B property from Arjuna pati and Lochan Pati. These sale deeds were handed over to the conducting counsel in the trial Court, but for some reasons the said documents were not filed before the trial court. In view of the above these transfer of properties were not taken note of by the trial court while deciding shares. According to sri Mohanty, learned counsel appearing for the appellants, since these two documents should have been filed before the trial Court for ascertaining correct share of the parties, an application for additional evidence has been before this Court and said application be allowed and the matter be remitted back to the trial Court for redetermining shares. It was further contended on behalf of the appellants that though defendant No. 10 has not filed any written statement before the trial Court, but the fact that he had puchased some properties, has been admitted by the plaintiff as well as defendant No. 1, certified copy of the said sale-deeds in favour of defendant No. 1 dated 29-7-74 has been exhibited as Exhibit No. 7. In another document dated 27-12-74, defendant No. 10 had purchased a portion of Schedule B land from defendant No. 1 and this fact was also admitted by the plaintiff, but inadvertently the original document could not be filed before the trial Court. In view of the above, three sale deeds dated 14-12-70. 18-5-71 and 27-12-74 filed along with application under Order 41, Rule 27, CPC be accepted as additional evidence and the matter be remitted back to the trial Court for fresh adjudication. Learned counsel appearing for the respondents 2 (a) to 2 (f) objected to such prayer on the ground that admittedly the documents were available with the appellants and they did not prefer to file the same to prove the same before the trial Court. Therefore, under Order 41, Rule 27 of the C. P. C. they cannot tender the aforesaid documents for acceptance as additional evidence. Learned counsel relied upon some decisions of the apex Court as well as this Court. Therefore, under Order 41, Rule 27 of the C. P. C. they cannot tender the aforesaid documents for acceptance as additional evidence. Learned counsel relied upon some decisions of the apex Court as well as this Court. ( 9 ) ORDER 41, Rule 27 of the Code of Civil procedure prescribes for production of additional evidence in Appellate Court. The provision is quoted below :" (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 notwithstanding, 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. "learned counsel appearing for the appellants stated that the application for adducing additional evidence has been filed before this Court to tender the aforesaid documents to be admitted as additional evidence and that the said documents could not be tendered as evidence before trial Court even though same had been handed over to the learned counsel conducting the case on behalf of the appellants. In view of such reasons given by the appellants, I am afraid that Order 41, Rule 27 of the CPC cannot be invoked. The rule specifically says that the parties seeking to produce additional evidence must establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed. Moreover, said documents even though were available with the appellants were not produced before the trial Court and only for the first time they are offered to be admitted as additional evidence at the first appeal stage. Moreover, said documents even though were available with the appellants were not produced before the trial Court and only for the first time they are offered to be admitted as additional evidence at the first appeal stage. On the basis of materials available on record, since the lower Court has been able to pronounce judgment and after considering materials available on record, 1 am of the view that on the available materials, a Judgment can be pronounced. The question that arises for consideration is whether the aforesaid documents can be admitted as additional evidence at this stage? In the case of Nath Singh v. The Financial Commissioner, Taxation, punjab reported In AIR 1976 SC 1053 , the apex Court held that discretion given to the appellate Court to receive and admit additional evidence under Order 41, Rule 27 of the C. P. C. is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that provision. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored. The actual test to be applied in dealing with applications for additional evidence is whether the Court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. Similar view has been taken in several other decisions of the Apex Court as well in this Court. Since the appellants do not satisfy the requirements of Order 41, Rule 27, C. P. C. , the petition cannot be allowed. Hence, the application for adducing additional evidence under Order 41, Rule 27, C. P. C. stands rejected. ( 10 ) NOW on consideration of the available evidence before the Court, I find that the documents produced before the Court have been taken into consideration by the trial court and the learned counsel appearing for the appellants also submitted that if the documents tendered as additional evidence are not taken into consideration the defendant No. 10 cannot have any right over the property and consequently the property alleged to have been purchased by him from defendant No. 1 cannot go to his share. It is needless to say that admittedly defendant no. It is needless to say that admittedly defendant no. 10 did not file any written statement before the trial Court. Moreover, the suit is of the year 1977. For lapses on the part of the defendant No. 10 in producing the documents relied by him before the trial Court even though the same were available with his advocate, the suit cannot be reopened. In view of the above, I do not find any merit in the appeal and the same stands dismissed. Appeal dismissed.