The court has discretion to allow production of additional evidence, if it is established that not withstanding the exercise of due diligence, such evidence was not within the knowledge of the parties or could not after exercise of due diligence produce the same at the time when the decree appealed against was passed.

1. - This is a Civil Misc. Appeal under Order 43, Rule 1, CPC read with Order 41, Rule 27, CPC against the judgement and decree dated 26-5-1973 passed by the learned Civil Judge, Jhunjhunu, camp : Sikar in Civil Appeal No. 19/73 remanding the case and reversing the decree passed by the learned Munsif, Sikar, dated 31-5-1969 in Civil suit No. 23/66 for mandatory and perpetual injunction.

2. The plaintiff-appellants filed a suit against the defendants-respondents for mandatory injunction for demolition of alleged encroachment made by the defendants-respondents on public street and for grant of permanent injunction. It was alleged that defendant No. 2 Nagar Parishad, Fatehpur Sekhawati unauthorisedly and illegally leased a particular piece of land for 99 years, in the year 1969 for consideration of Rs. 33l.35p. to defendant No. 1. It is further alleged that the plaintiffs appellants have been using the land in front of their house for last more than 100 years as path way and also as a place of sitting on the occasions of marriage, death and feasts. It is said that the land has become narrow because of the structures put by the defendants-respondents. It was, therefore, prayed that the structures on the disputed land be removed and the defendants-respondents be restrained by perpetual injunction from encroaching upon the suit land. The learned trial court after framing the issues and recording evidence of both the parties, decreed the suit of the plaintiffs-appellants on 31-5-1969. An appeal was filed against it by the defendant No. 1 before the learned Additional District Judge, Sikar, which was transferred, heard and decided by the learned Civil Judge, Jhunjhunu.

3. During the pendency of the appeal the defendant-respondent moved an application on 14-11-1970 before the learned Civil Judge for producing certain documents on the ground that as the defendant generally resided at Calcutta in connection with his business, so he could not know about these documents and he came to know about them only in July, 1970. The documents produced by the defendant-respondent are as under:

(a) Certified copy of the site plan produced by one Dal Chand s/o Shri Pannalal, before Tehsildar Fatehpur for grant of Patta of some land. In this site plan it is said its boundaries showed the disputed land as Bara of defendant.

(b) Certified copies of site plan and Khasra of City Survey of Fatehpur of the year 1944 in which the disputed land has been shown as Bara, and not as public street;

(c) Certified copy of the application of Mohanlal alleged to be elder brother of Bhanwar Lal plaintiff and Umed Singh s/o Bhanwarlal dated 5-6-1965 filed before the Municipal Board, Fatehpur in which the disputed land has been mentioned as Bara.

4. Learned Counsel for the appellants contested this application, but the same was sallowed and the decree of the lower court was set-aside and the matter was remanded back to the trial court for recording fresh evidence in the light of the documents produced by the defendant.

5. Learned Counsel for the appellant Mr. J.S. Rastogi contends that the documents in question were irrelevant and not material for the decision of the case and that the defendant had knowledge of the documents since long and that the record of city survey has no evidentiary value as the same was not maintained under any provisions of law and was not admissible in evidence. It has further been contended that the plaintiffs-appellants were not party to the site plan (Ex. A5) therefore, the same is not admissible in evidence and in any case no adverse presumption can be drawn on account of the same against the appellants. Learned Counsel has placed reliance on Lalit Kishore v. Laxmi Narain 1968 RLW 308 , in which it has been held that the city survey record of Jaipur of S.Y. 2025 was not reliable. It has been further contended that u/O 41 Rule 27 CPC the learned first appellate court could have, at the most, remanded the case for recording the evidence on t