JUDGMENT :

Salil Kumar Rai, J.

Heard Shri Swapnil Kumar, counsel for the petitioner and Shri Nipun Singh, counsel for the defendant-respondent.

2. The present petition under Article 227 has been filed challenging the order dated 13.1.2022 passed by the Additional District and Session Judge, Court No. 26, Agra.

3. The facts of the case are that the predecessor of the petitioner instituted Original Suit No. 598 of 1986 for a permanent prohibitory injunction restraining the defendant-respondent i.e., U.P Avas Evam Vikas Parishad from interfering in his possession over Plot No. 798 which the respondent pleaded, was acquired by the defendant-respondent through a notifications published under Section 28/32 of the U.P Avas Evam Vikas Parishad, Adhiniyam 1965 (hereinafter referred to as Act, 1965). The plaintiff denied that Plot No. 798 was acquired by the defendant-respondent. During the trial of Original Suit No. 598 of 1986, the defendant-respondent filed the award of the Special Land Acquisition Officer regarding the acquired plot and also a demand raised by the plaintiff seeking compensation of Plot No. 798 at the rate of Rs. 150/- per square yard. An allotment letter allotting the said plot to the respondent was also filed which showed that out of 1 Bigha 7 Biswa of Plot No. 798 which was acquired by the Government, 10 Biswa in the aforesaid plot was not allotted to the Parishad. The Parishad also produced witnesses to prove their possession over the suit property. Interestingly, neither the plaintiff nor the defendant-respondent filed the notifications issued under Section 28 and 32 of the Act, 1965. The trial Court vide its judgment and decree dated 22.3.1997 dismissed Original Suit No. 598 of 1986 holding that from the award and the demand raised by the petitioner and the allotment letter, it was evident that Plot No. 798 except the 10 Biswa in the aforesaid plot had been acquired. The decree dated 22.3.1997 passed by the trial Court has been challenged by the plaintiff in Civil Appeal No. 106 of 1997 which at present is pending before the Additional District and Session Judge, Court No. 26, Agra. In the aforesaid appeal, the defendant-respondent filed an application marked as Paper No. 118-Ga under Order 41 Rule 27 Code of Civil Procedure (hereinafter referred to as C.P.C.) praying for permission to file as additional evidence the notifications issued under Section 28 and 32 of the Act, 1965 as well as the revenue map showing the plots acquired through the aforesaid notifications. The said application has been allowed by the appeal Court vide its order dated 13.1.2022, hence the present petition.

4. It was argued by the counsel for the petitioner that the necessary conditions for admitting additional evidence in appeal as provided in Order 41 Rule 27 C.P.C. did not exist and therefore, the defendant-respondent could not have been permitted to file additional evidence. It was further argued that the application filed under Order 41 Rules 27 C.P.C. can, in view of the judgment of Supreme Court in Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148, be considered only at the stage of final hearing and therefore, the appeal Court had exceeded its jurisdiction in considering and allowing the application for additional evidence. It was argued that for the aforesaid reasons, the appeal Court has committed an error of law apparent on the face of record in allowing the application marked as Paper No. 118 Ga through its order dated 13.1.2022 and the order is liable to be quashed.

5. Rebutting the argument of the counsel for the petitioner, Shri Nipun Singh, counsel for the respondent has supported the order dated 13.1.2022 and the reasons given in the same and has argued that the petition is liable to be dismissed.

6. I have considered the submissions of the counsel for the parties.

7. The rival pleas of the parties that the suit property was or was not acquired by the Government had to be proved by the notifications issued under Se