JUDGMENT

1. Heard finally.

2. This appeal under Order 43 Rule 1(u) CPC against the order dated 8.8.2017 passed by 1st Additional District Judge, Guna in C.A. No. 51A/2016, thereby remanding the matter back to the Trial Court.

3. The necessary facts for the disposal of the present appeal in short are that the plaintiff/appellants had filed a suit for declaration of title, permanent injunction in respect of agricultural land bearing survey No. 576/1 area 1.380. It is the case of the appellants that Girdharlal and Navneet Lal were the owners of the said land. They had given to the appellants on Sikmi in Samvat 2023 on the condition that the appellants shall also pay the land revenue. As the appellants acquired the Bhumiswami rights, therefore, they filed an application under section 110 and 190 of M.P.L.R. Code before the Naib Tahsildar Myana which was registered as case No. 10-A-6/86-87 and by order dated 27.3.1987, the appellants were declared Bhumiswami and their names were mutated in revenue records. Against the said order, the defendants filed an appeal after 24-25 years and also tried to forcibly take possession of the disputed property. On 1.7.2002, the defendants No.1 to 3, by projecting themselves to be the son of Girdharlal, extended a threat that they would take possession of the same. Accordingly, the suit was filed.

4. The defendants No.1 to 3 filed a joint written statement and pleaded that Late Girdharlal was their father whereas Late Navneetlal was their Uncle. Navneetlal was issueless. The disputed property was given by Shrimant Maharaja Daulatrao Sahab in Dharmada Maufi to Shri Ratanlal, the predecessor of defendants and after the death of Ratanlal, the land was succeeded by Girdharlal and Navneet Lal. The defendants are their legal heirs and they have filed an appeal before the Court of S.D.O., which is pending. It was further pleaded that Late Girdharlal and Navneet Lal had never given the property on Sikmi.

5. The trial Court after framing issues and recording evidence, decreed the suit by Judgment and Decree dated 20.12.2014 passed in C.S. No. 11A/2014.

6. Being aggrieved by the Judgment and Decree, the respondents filed an appeal which was registered as R.C.A. No. 51A/2016 and the same has been allowed by order dated 8.8.2017 passed by 1st Additional District Judge, Guna and after allowing the application filed under Order 41 rule 27 C.P.C., has remanded the matter back.

7. Challenging the order of remand, it is submitted by the Counsel for the appellant that the Court below has not considered that an application under Order 41 rule 27 CPC cannot be allowed in a routine manner and has not dealt with the restrictions imposed in rule 27 of Order 41 CPC.

8. Per contra, it is submitted by the Counsel for the respondents, that Navneet Lal had expired on 30.4.1981, whereas the Naib Tahsildar, by his order dated 27.3.1987, conferred the Bhumiswami rights on the plaintiff without impleading the legal representatives of Navneet Lal, therefore, it is clear that the order dated 27.3.1987 was passed against a dead person.

9. Heard the learned Counsel for the parties.

10. Order 41 rule 27 CPC reads as under :

27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the appellate Court may all