ORDER

1. The defendants / appellants have filed this appeal under Order 43 rule (u) of CPC challenging the judgment dated 30.9.2022 passed by Principal District Judge, Shivpuri in Civil Appeal No. 5-A/2019 and Civil appeal No. 10-A/2019, whereby, learned appellate Court allowed the application under Order 41 rule 27 of CPC filed by the plaintiffs after setting aside the judgment and decree passed by the learned trial Court and remanded the matter for fresh decision after taking evidence as per the aforesaid application.

2. The facts necessary for decision of this case are that the plaintiff filed the present suit for declaration and injunction interalia on the ground that suit property is infact public road and the defendants encroached upon the said land.

3. On the other hand, defendants filed their written statement claiming title over the property based upon the registered sale deed dated 26.9.1996. Thus, the issue before the learned trial Court was merely as to whether the suit property is a public road or it is the private property of the defendants.

4. Learned trial Court after taking evidence of both the sides including that of the respondent / Municipal Council vide judgment and decree dated 27.12.2018 dismissed the suit. By appreciating evidence in para 19 & 20 of the judgment, it has been held that suit property is not a public road and is private property of the defendants. In paragraph 22 of the judgment, learned trial Court has held that the plaintiffs have not challenged the defendants sale deed.

5. Being aggrieved, two separate appeals were filed. One by the plaintiffs and other by the defendant - Municipal Council. Along with appeal filed by the plaintiffs, they also filed two applications under Order 41 rule 27 of CPC. Learned Appellate Court has allowed both the applications and has remanded the matter to the learned trial Court for fresh adjudication.

6. Learned counsel for the appellants / defendants submit that appellate Court seriously erred in exercising jurisdiction under Order 41 rule 27 of CPC inasmuch as without considering the merits of the appeal, the application under Order 41 rule 27 of CPC has been allowed. It is his submission that aforesaid applications could have been allowed only if the appellate Court is of the view that additional evidence sought to be adduced is relevant for the decision of the case and such conclusion could have been arrived at only after considering the case .

7. Learned counsel for the appellants further submit that the application filed by the plaintiffs were wholly vague inasmuch as there is no averment made in the application as to how the documents sought to be produced are relevant for the decision of the case. He further submits that there is no due deligence shown by the plaintiffs for not filing the documents before the learned trial Court. He placed reliance upon the judgment of this Court delivered in the case of Jagnnath and Another v. Karuna and Ors reported in 2018 (3) MPLJ 98 and another judgment delivered in the case of Murari Lal v. Ram Kumar Ojha and Another reported in 2015 (1) MPLJ 243. He further placed reliance upon the judgment delivered by the apex Court in the case of Union of India v. Ibrahim Uddin and Anr. reported in (2012) 8 SCC 148 with regard to scope of appellate Court while dealing with the application under Order 41 rule 27 of CPC.

8. Nobody appeared on behalf of respondents / plaintiffs, even though they are served.

9. Learned counsel appearing on behalf of Municipal Council/respondent submits that applications were filed by the plaintiffs based upon documents supplied under RTI BY IT. He supports the impugned judgment passed by the learned appellate Court.

10. Considered the arguments and perused the record.

11. As seen from the record, the main issue between the parties before learned trial Court was whether the suit property is a public road or private property of the defendants. The learned trial Court after appreciating the oral and documen