MAHILA SHYAMBAI AHIRWAR Vs. GOTIRAM AHIRWAR

JUDGEMENT

(1.) This Misc. Appeal has been filed under Order XLIII Rule 1 (u) of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") against the judgment and decree dated 17.03.2020 passed by Fifth Additional District Judge, Tikamgarh in Civil Appeal No.48/2018 whereby learned Additional District Judge after allowing the application of respondents (defendants No.1 to 4 of the suit) filed under Order XLI Rule 27 of CPC set-aside the judgment and decree dated 31/08/2018 passed by First Civil Judge Class II, Tikamgarh in Civil Suit No.53A/2014 and remanded the case to trial court with a direction to take the documents on record filed by the respondents (Defendants No.1 to 4 of the suit) along with the application filed under Order XLI Rule 27 of CPC and record the evidence of both the parties regarding the documents thereafter again pass the judgment.

(2.) Brief facts of the case which are relevant to the disposal of this miscellaneous appeal are that appellants/plaintiffs filed Civil Suit No.53A/2014 in the Court of First Civil Judge Class II, Tikamgarh seeking a decree for declaration & injunction that they were the owner and possession holder of the agriculture land Survey No.61 Area 0.951 Hectare, Survey No.63 area 0.032 Hectare, Survey No.64 area 0.559 Hectare, Survey No.65 area 0.656, Survey No.67 area 0.178 Hectare and half part of Survey No.61/2433 area 0.020 hectare located at the village Kudila District Tikamgarh (hereinafter referred to as "suit land") making averments that earlier Guntu Ahirwar was the owner of the suit land. Guntu, whose wife had died, after the death of appellant No.1 Shyama Bai's husband Acchelal, had made Shyama Bai his wife. Sanju Ahirwar and Mamtabai are Shyama Bai's children who were born in the wedlock of Guntu Ahirwar. Thus the appellants are the heirs of Guntu and the owner of the disputed land. The respondents/defendants filed the written statement denying the averments and ownership of the plaintiffs and averred that Shyama Bai was not the wife of Guntu Ahirwar. Shyama Bai was the wife of Acchelal Ahirwar and plaintiff No.2 & 3 are the children of Acchelal and not of Guntu Ahirwar, so the plaintiffs have no share in the suit land.

(3.) In view of the pleadings, 5 issues were framed by the Trial Court and after appreciating the evidence on record, the trial Court came to the conclusion that plaintiffs are the heirs of Guntu Ahirwar and the owner of the suit land and decreed the suit vide judgment and decree dated 31/08/2018. Being aggrieved from that judgement and decree the respondent No.1 to 4 preferred the First Appeal before the Additional District Judge, Tikamgarh. During the pendency of the said appeal, respondents No.1 to 4 preferred an application under Order XLI Rule 27 of the CPC on 06/03/2020 for adducing additional evidence, i.e., Copy of registered sale deed of part of suit land executed by Guntu in favour of Babu and Achhelal, complaint filed by the respondent before Chief Election Commissioner, Bhopal (Madhya Pradesh) regarding manipulation in voter list got done by Shyama Bai and Bhu Adhikar pustika of Dharam Das and one punchnama made by Sarpanch Panchayat Lidhora. The said application was allowed by the First Appellate Court vide judgment and decree dated 17/03/2020 and remanded the case to Trial Court with a direction to take the documents on record filed by the respondents (defendants No.1 to 4 of the suit) along with the application filed under Order XLI Rule 27 of CPC and record the evidence of both the parties regarding the documents and thereafter again pass the judgment. Being aggrieved from that order appellants filed this Miscellaneous Appeal