Judgment – This writ petition has been filed to issue a writ of certiorari quashing the impugned order dated 8-11-2006 and 19-3-2007 passed by the District Judge, Almora, in Civil Appeal NO.9 of 2006, Har Singh Vs. Uttam Singh. By the order dated 8-11-2006, the learned District Judge Almora has rejected the application 24-C moved by the petitioner holding that the application for survey commission for making the survey of the spot has been moved just to cause delay. By the order dated 19-3-2007, the application filed by the petitioner paper no. 30-C has been rejected on the ground that the appellant has not given any ground on which he intends to file the evidence and that the application does not fall within the purview of Order 41, Rule 27 of the C.P.C. 2. The petitioner moved application 24-C for issue a survey commission for making survey of the spot. It was alleged in the application that the dispute is of public path way and the pathway is being used by all the residents of the village, while the respondent no. 3 intends to grasp the entire public path way. Plaintiff-respondent Uttam Singh filed objection and it was alleged therein that the question in dispute is whether the property in dispute is a Bhumidhari land or not. The burden lies upon the appellant to prove it and it is to be decided on the basis of the evidence to be adduced by the parties. 3. The suit was filed by plaintiff Uttam Singh with the prayer that the defendant no. 1 be restrained from interfering in the way of the plaintiff situated in plot nos. 2678, 2677 and 2679 of village Khatyari, Patti Khasparja, Tehsil and district Almora, which has been shown in the plaint map by letters A, B, C, D. It has further been prayed that the defendant no. 1- appellant be directed to remove water pipe from the property in dispute. The learned District Judge, Almora, after hearing both the parties and after perusing the averments made in the application as well as the objection filed by the plaintiff-respondent came to the conclusion that the survey commission is useful only when there is dispute regarding the identity of the property or the identity of the property has to be ascertained. There is no use to issue a survey commission. 4. There is no use to issue a survey commission. 4. The Apex Court in the case of Shreepat Vs. Rajendra Prasad and others [2000(2) J.C.L.R. 462 (Supreme Court) has held as under: "Serious dispute with regards to the area and boundaries of land in question-Decided only on the basis of oral evidence-Identity of land to be decided on the basis of survey commission-Which was not done." 5. The learned District Judge has specifically observed that the dispute is whether the land is dispute is the Bhumidhari land or a public way, which has to be decided only by way of evidence advanced by both the parties. It was further observed that the survey report is also the piece of evidence and no party to the suit can be allowed to file additional evidence unless and until his case falls under Order 41, Rule 27 C.P.C. Accordingly, the application of the petitioner was rejected. 6. It is pertinent to mention here that the District Judge after having heard the petitioner has held that it is not a case of identification of the property, which could be done by way of survey commission and the appeal has to be decided on the basis of the evidence already adduced by the parties. 7. I have perused the application 24-C, which was moved by the petitioner in appeal for issuing survey commission. It was contended that pathway is being used by all the residents of village, while the respondent NO.3 intends to grab the entire public way. According to the plaintiff ultimately it is a Bhumidhari land. It is to be decided on the basis of evidence, as has been held by the District Judge. The order of the District Judge cannot be said to be manifestly erroneous because survey is only required when identification of property is required. In the case at hand, the dispute of title. The application was rightly rejected. 8. A separate application has also been moved by the petitioner for permission to file the photo as additional evidence, which was also rejected by the District Judge vide order 19-3-2007. Validity of the same has been assailed in this writ petition. 9. By the application paper no. 30-C, purporting to have been moved under Order 41, Rule 27 C.P.C. and it was prayed that the appellant-petitioner be permitted to file the photograph in evidence as additional evidence. Validity of the same has been assailed in this writ petition. 9. By the application paper no. 30-C, purporting to have been moved under Order 41, Rule 27 C.P.C. and it was prayed that the appellant-petitioner be permitted to file the photograph in evidence as additional evidence. The application has been annexed as Annexure No.7 to the writ petition and it has been stated in the application in paragraph no. 1 that the plaintiff had purchased 1, 1/2 Muthi land, in which disputed Rasta exists. It has also been stated that it is public pathway of the village and not a private way. In order to clarify the position of suit, the petitioner wants to file some photographs along with negatives. Learned counsel for the petitioner has contended that if the application is allowed, then it will be helpful in the judgment to resolve the controversy of the suit. It has nowhere been stated as to which circumstances have prevented the appellant to adduce such evidence before the trial court. 10. Learned District Judge after hearing the defendant-petitioner as well as the plaintiff/respondent rejected the application on the (ground) that no compliance of Order 41, Rule 27(1) (aa) C.P.C. has been made. The appellant filed the application 30-C simplicitor and there is no explanation to it why the documents could not have been filed at the trial stage. 11. Order 41, Rule 27 C.P.C. reads as under : "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 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 12. The sub-rule (aa) of Rule 27 of Order 41 C.P.C. clearly provides that it is incumbent upon the party seeking to produce additional evidence before appellate court to establish that even after exercising due diligence, the evidence which he intends to produce was not within his knowledge or even after due diligence, he could not produce the same before the trial court at the time of passing of decree. It reveals from the application that no reason has been assigned in the application as from what circumstances he was unable to produce these documents before the trial court. 13. Learned counsel for the petitioner has relied upon the case of Jaipur Development Authority Vs. Smt. Kailashwati Devi [AIR 1997 Supreme Court, 3243J wherein it has been held that the court cannot refuse permission to adduce additional evidence under Order 41, Rule 27 C.P.C. on the ground that the party had not adduced any evidence in trial court. The Apex Court has observed in paragraph no. 6 as under : "6. The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial Court, should be enabled to produce the same in the appellate Court. The sub-rule mentions the conditions which must be complied with by the party producing the additional evidence, namely, 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," in the trial Court. It is not one of the conditions that the party seeking to introduce "additional" evidence must have also been one who has led some evidence in the trial Court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial court. All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial court. All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. It is not permissible to restrict the sub-clause (aa) for the benefit of only those who have adduced some evidence in the trial Court." 14. The ratio of the judgment cannot be disputed. The matter for consideration before the Apex Court was whether permission to adduce additional evidence can be granted to a party who had led no evidence before the trial court. The Apex Court has held that it is not permissible to restrict the sub-clause (aa) of Rule 27 of Order 41 C.P.C. for the benefit of only those who have adduced some evidence in the trial Court; but in the case at hand, the petitioner as well as respondent have both adduced the evidence before the trial court. The petitioner has intended to seek permission to file additional documents to clarify the position of the spot by filing photographs and negatives. The condition precedent to be fulfilled by the party applying for permission to file additional evidence in Appellate Court is that as to by what circumstances even after due diligence he was prevented to file the said evidence before the trial court or that the evidence sought to be led before the appellate court was not within the knowledge of the party after exercise of due diligence. In the application (Annexure No.7) no such averments were made by the petitioner and the requirement of the conditions as referred to under sub-rule (aa) aforesaid is totally unfulfilled. The learned District Judge has rightly rejected the application on the ground that the appellant has not given any ground on which he intends to file the evidence. 15. In view of the discussion above, I find that the impugned orders dated 8-11-2006 and the order dated 19-3-2007 passed by the District Judge Almora in Civil Appeal No.9 of 2006, Har Singh Vs. Uttam Singh and others do not suffer from any manifest error of law or perversity or infirmity. The applications of the petitioner-appellant have been rejected for sufficient and valid reasons. The writ petition is devoid of merit and is liable to be dismissed at the threshold. 16. Uttam Singh and others do not suffer from any manifest error of law or perversity or infirmity. The applications of the petitioner-appellant have been rejected for sufficient and valid reasons. The writ petition is devoid of merit and is liable to be dismissed at the threshold. 16. The writ petition is dismissed in limine.