Sujoy Paul, J. - (1.) This appeal filed under Order 43 Rule 1 (u) of Code of Civil Procedure is directed against the order dated 29.01.2010 passed in Regular Civil Appeal No.50-A/2009 by the 1st Additional District Judge, Mandla whereby the appellate Court remitted the matter back to the trial Court to record additional evidence on the question of encroachment and then decide the matter afresh.
(2.) Briefly stated, the admitted facts are that the plaintiffs filed a civil suit for declaration, possession and permanent injunction. The civil suit was registered as Civil Suit No.20-A/2007. The trial Court dismissed the suit by judgment and decree dated 30.01.2009. Accordingly, the respondents/plaintiffs filed Civil Appeal No.50-A/2009 before the appellate Court. The appellate Court in its judgment dated 29.01.2010 opined that the plaintiffs have successfully established the title before the Court below. By placing reliance on a judgment of Supreme Court (Smt. Hans Raj Vs. Yasodanand, 1996 AIR(SC) 761), the appellate Court opined that for the purpose of proving a sale deed, the witnesses of sale deed are not required to be examined. Shri Akshat Shukla fairly submits that the findings given in Para 12 of the impugned judgment is in accordance with law. Reliance in this regard is placed on (Prem Singh and others Vs. Birbal and others, 2006 5 SCC 353).
(3.) Shri Shukla, learned amicus curiae contends that in para 13 of the impugned judgment, the appellate Court opined that certain revenue records, notice, map, field book, report etc. were filed by the plaintiffs before the trial Court but the maker of those documents or Revenue Inspector was not produced to substantiate those documents. Since plaintiffs are rustic women and villagers, in the fitness of things, additional evidence is required to be recorded, moreso, when plaintiffs are tribal women. Accordingly, on the question of encroachment only, the appellate Court has remitted the matter back to the trial Court to record evidence and to hear the parties on the said limited question and decide it afresh. Shri Shukla submits that the impugned order is passed in consonance with Order 41 Rule 23-A of CPC.;