JUDGMENT :

J. Nisha Banu, J.

1. This second appeal has been filed by the appellant/plaintiff challenging the judgment and decree, dated 08.03.2017, passed by the first appellate Court in A.S. No. 17 of 2013, reversing the judgment and decree passed in O.S. No. 33 of 2003.

2. The appellant / plaintiff filed the suit in O.S. No. 33 of 2003 for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. According to the appellant/plaintiff, the suit property was allotted to him through partition in the year 1985 and there is a public cart track passes through the eastern side of the suit property and the same is in existence from time immemorial. The defendants 1 and 2 obliterated the said passage and encroached the same unlawfully and now attempted to form a new road through the suit land and hence, he filed the suit. According to the first respondent/first defendant, a north-south pathway has been in existence from time immemorial on the eastern side land of the plaintiff and on the western side land of the first defendant. In the sale deed of the first defendant, the public pathway is clearly mentioned. Since the disputed portion is a public pathway being enjoyed by the general public from time immemorial, the plaintiff is not entitled to the relief. The defendants 2 to 4 remained ex parte before the trial Court.

3. In order to establish the case, on the side of plaintiff, the plaintiff himself was examine as PW1 and Exs.A1 to A7 were marked. On the side of the contesting defendant, the first defendant himself was examined as DW1 and the two other witnesses were examined as DW2 and DW3, however, no documentary evidence was marked. On the side of the Court, the Advocate Commissioner's report and plan are marked as Exs.C1 and C2.

4. The trial Court, after trial, has decreed the suit holding that as per Exs.A2, A3 and A7 and the report of the Advocate Commissioner, there is no public pathway is in existence in the suit property. Aggrieved by the same, the first respondent/ first defendant filed appeal in A.S. No. 17 of 2013. The first appellate Court, by judgment dated 08.03.2017, reversed the finding of the trial Court mainly relying upon the additional documents filed by the first respondent/first defendant, thereby allowed the appeal and dismissed the suit. Aggrieved by the same, the appellant/plaintiff filed this second appeal.

5. The learned counsel appearing for the appellant/plaintiff mainly contended that the first appellate Court has allowed the appeal only based on the additional documents leisurely filed by the first respondent/first defendant in I.A. No. 32 of 2016. The appellant/plaintiff did not admit those documents nor given consent for marking those documents. The first appellate Court ought to have marked those documents after providing an opportunity to the appellant/plaintiff herein. As the first appellate Court has marked the additional documents without following the procedure contemplated under Order 41 Rules 27 and 28 C.P.C. and decided the appeal, this Court may set aside the judgment and decree passed by the first appellate Court and remit the same to decide the appeal after marking of the documents by following the procedure contemplated under Order 41 Rules 27 and 28 C.P.C. Thus, he prayed to allow this appeal.

6. The learned counsel appearing for the first respondent/first defendant submitted that the appellant/plaintiff had filed a counter affidavit as against the application filed for receiving additional documents and therefore, it cannot be contended that he has not been provided any opportunity. He would further submit that the provision for recording reasons mentioned in Order 41 Rule 27 of C.P.C. is only directory and not mandatory, and the omission to record reasons for allowing additional evidence does not vitiate such admission. Therefore, the first appellate Court has rightly allowed the application for additional evidence and t