SMT. KARUNA Vs. MAHESH AND OTHERS

JUDGEMENT

(1.) The appellant has filed a bearing Civil Suit No. 50-A/2007 before the 2nd Civil Judge Class-II Mandla for declaration of title and injunction and for possession stating that by registered sale deed dated 1.12.1994, she has purchased a plot No. 2 out of sheet No. 19-D area 1940 Sq.ft, but the defendants/respondents have encroached upon part of it. Hence she filed a civil suit through power of attorney Shiv Kumar Pandey. The defendants/respondents denied the claim and stated that the said property is an ancestral property and they are not encroached upon any portion and in the alternative they said that they have right of easement over the said property.

(2.) The trial Court framed the issues and laid the evidence, the trial Court thereafter decreed the suit on 08.02.2008. Against the said judgment and decree, the defendants/respondents filed an Appeal No. 76-A/2014 before the 2nd Additional District Judge, Mandla. The Appellate Court vide order dated 4.12.2015 has set aside the order passed by the trial Court and by allowing the application preferred by the defendants/respondents under Order 41, Rule 27 of the C.P.C. has remanded the matter to the trial Court for deciding the matter afresh. Being aggrieved by that order the appellant has filed the present appeal.

(3.) Learned counsel for the appellant submits that the appellate Court has erred in remanding the matter to the trial Court for deciding the entire matter afresh. He submits that the appellate Court has further erred in allowing the application preferred by the defendants/respondents under Order 41, Rule 27 of the C.P.C. He further submits that the documents which the defendants/respondents was sought to be filed under Order 41, Rule 27 of C.P.C. are not necessary documents. He further argued that the appellate Court has two options for remanding the matter, firstly it should the appellate Court to direct the trial Court to record the evidence on this document and the evidence will produce before the appellate Court. Secondly, it may record the evidence itself. However, in the present case, the appellate Court, instead of remanding the matter for limited issues on the documents which is sought to be produced by the defendants/respondents, has erred in remanding the matter to the trial Court for deciding afresh in toto. He further relies on the judgment passed by the Apex Court in the case of H.P. Vedavyasachar v. Shiva Shankara and another reported in 2010(1) M.P.L.J. 315 .