JUDGMENT :

1. This Miscellaneous Appeal has been preferred by the Defendants 1 and 2 under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), questioning the legality and propriety of the order dated 11.01.2019, passed in Civil Appeal No. 23-A/2017, whereby the learned lower appellate Court, in exercise of the power enumerated under Order 41 Rule 28 of C.P.C, has remanded the matter to the trial Court with a direction to record the additional evidence pertaining to the report dated 16.10.2014 as submitted by Revenue Inspector within a period of 2 months. The parties to this appeal shall be referred hereinafter as per their description in the Court below.

2. Briefly stated the facts of the case are that the plaintiff instituted a suit claiming declaration of title and injunction with regard to the land bearing Khasra No.1665 admeasuring 0.10 hectare situated at Village Sankra, Tahsil Nagri, District Dhamtari by submitting inter alia that in some of the portion of this land, his house is situated, while remaining portion is open, which is being used by him as a passage/path. It is pleaded by the plaintiff that adjacent to his land, the land bearing Khasra No.1664 admeasuring 0.02 hectare was purchased by defendant-Brijbhushan from one Jageshwar under the registered deed of sale dated 05.04.1994 and without his knowledge has succeeded to obtain the revenue papers mutated in his name and based upon it, has applied for the demarcation of it with the collusion of the Revenue Authorities on 25.05.2006 and on the basis of the Demarcation Report, he has filed an application before the Tahsildar, Nagri for reversion of possession of the land in question and tried to construct the wall over the alleged disputed passage. The plaintiff has, therefore, been compelled to institute the suit in the instant nature.

3. The defendants have contested the aforesaid claim and the trial Court, after considering the evidence led by the parties, has dismissed the suit by recording a finding that the plaintiff and the defendants are in possession of their own land and, the defendants have nowhere encroached upon the land of the plaintiff.

4. Being aggrieved with the aforesaid judgment and decree of the trial Court, the plaintiff has preferred an appeal and the lower appellate Court vide order impugned dated 11.01.2019 has remanded the case to the concerned trial Court, while exercising its power under Order 41 Rule 28 of C.P.C. with a direction to record additional evidence in respect of the Demarcation Report dated 16.10.2014 as the same has not been proved by the plaintiff while producing evidence to this effect.

5. Learned Counsel appearing for the defendants 1 and 2/Appellants submits that the learned lower appellate Court has committed an illegality in remanding the matter with a direction for recording the additional evidence, particularly, when the sufficient evidence are available on record in order to pronounce the judgment, and therefore, the Court below ought to have decided the appeal on merits instead of remanding the matter as such.

6. On the other hand, learned counsel appearing for the Plaintiff/Respondent No.1 has supported the order impugned as passed by the Court below.

7. I have heard learned counsel for the parties and perused the entire record carefully.

8. From perusal of the record, it appears that plaintiff is the owner of the land bearing Khasra No. 1665 admeasuring 0.10 hectare, while the defendant-Brijbhushan is the owner of land bearing khasra no. 1664 admeasuring 0.02 hectare, which is adjacent to the plaintiff's land. The dispute pertaining to the alleged open land which according to the plaintiff belongs to him. In order to substantiate the said fact, the plaintiff has led the oral evidence and has also produced the documentary evidence, like the Demarcation Report as well as the Spot Inspection Report and the defendants, in order to rebut the same, have submitted the report of Revenue