JUDGMENT

P. K. TRIPATHY, J. — The Second Appeal has been admitted on the substantial question of law and, the relevant question as per Ground No. 3 reads as hereunder :

“Whether the appellate Judge is justified in law in decree¬ing the suit of the plaintiff by accepting additional evidence against the appellant without giving them an opportunity of adducing rebuttal evidence ?"

2. Plaintiff is Respondent No. 1. He filed Title Suit No. 124 of 1979 in the Court of Munsif, First Court, Cuttack, inter alia, praying for confirmation of possession, alternatively for recovery of possession and for permanent injunction restraining defendant Nos.1 to 4 from interfering with the possession of the plaintiff and defendant Nos. 5 and 6. Plaintiff claimed the said land for himself as well as for the defendant Nos. 5 and 6. The disputed land is described in the Schedule ‘A’ of the plaint, which reads as hereunder:

Schedule ‘A’

District - Cuttack Mouza - Samapurpoda, Samil-Rajabagicha, Khata No. 64, C.S. Plot No. 128, out of this an area Ac. 0.021 decimals corresponding to Hal Plot No. 344 as shown in the sketch maps attached to the schedule ‘B’ and ‘C’.

Defendant No .1 is the sole contesting defendant and, inter alia,he advanced the plea that the disputed land appertains to C.S. Plot No. 121 and not C.S. Plot No. 128.

3. In the trial Court plaintiff’s suit was dismissed, inter alia, on the grounds that the predecessors in interest had no good title to convey it to the plaintiff and defendant Nos. 5 and 6, and the plaintiff and defendant Nos. 5 and 6 are not in possession of the suit land. While considering Issue No. 9, i.e., as to whether the suit property appertains to C.S. Plot No. 121 or 128, the trial Court recorded the finding that it appertains to C.S. Plot No. 121.

4. It appears from the trial Court’s record that both the parties adduced oral as well as documentary evidence. Plaintiff examined two witnesses and tendered Exts. 1 to 10/a as documen¬tary evidence. Defendant examined seven witnesses and tendered Exts. A to M/1 as oral and documentary evidence.

5. Being aggrieved by the aforesaid judgment and decree of the learned Munsif, First Court, Cuttack, plaintiff preferred an appeal and that was decided by the learned First Addl. District Judge, Cuttack, vide the impugned judgment dated 14.8.1985 in Title Appeal No. 11 of 1982. It appears from order No. 16, dated 7.2.1983 of the appellate Court record that an application under Order 41, Rule 27, C.P.C. was filed by the appellant. The re¬spondents in that appeal i.e., the present appellants (in the Second Appeal) filed a counter. On 26.4.1983 the lower appellate Court deferred consideration of that application till the time of hearing of the appeal. On 1.8.1985 the lower appellate Court heard and allowed that application under Order 41, Rule 27, C.P.C. and marked the documents (additional evidence) as Exts. 11, 12 and 13, and simultaneously heard argument on merit in the appeal and thereafter on 14.8.1985 delivered the impugned judg¬ment.

6. Narration of the aforesaid circumstances from the lower Court’s records indicate that though the additional evidence from the side of the plaintiff was accepted but the appellate Court did not even think of affording to the contesting defendants/respondents a chance of submitting rebuttal evidence. Undoubtedly, that attitude and the manner of acceptance of addi¬tional evidence without affording an opportunity to the contest¬ing opponent is in gross violation of the principle of natural justice besides the procedural law. While reiterating on the aforesaid ground which has been taken by the appellant as Ground No. 3, Mr. Aswini Mishra, learned Standing Counsel states that he is under instruction to make a statement that in fact the defend¬ant/appellant is not only required to adduce rebuttal evidence but also prepared to adduce rebuttal evidence subject to grant of opportunity. In that context, while the contention of the learned Standing Counsel is