Judgment:
B. Jagannatha Hegde, J.
1. This Miscellaneous Second Appeal is filed against the Judgment and Decree dated 9-3-1990 passed in R.A. No. 33/1987 on the file of the Civil Judge, K.G.F.
2. Respondent filed a suit in O.S. No. 447/1975 before the Munsiff at K.G.F., for declaration of his title and possession of the suit property. The suit was dismissed on 28-9-1987. Respondent filed an appeal against this order of dismissal in R.A. No. 33/1987 before the Civil Judge at K.G.F. The learned Civil Judge, after hearing the appeal set aside the Judgment and decree passed by the learned Munsiff and remanded the entire matter for fresh disposal in accordance with law. This Judgment is challenged by the Appellants in this appeal.
3. One Munireddy, had two daughters by name Muniyamma and Gangamma. Muniyamma was the wife of Munireddy. Gangamma's husband was Varadareddy. Respondent (plaintiff) is the daughter of Gangamma and Varadareddy. Appellants are the brothers of Munireddy, the husband of Muniyamma.
4. The case of the respondent is that her grandfather Munireddy was the original owner of the suit property and after his death Muniyamma and her mother Gangamma inherited the same. Muniyamma had no issues and that after the death of Muniyamma and Gangamma she became the absolute owner of the suit property. The Appellants on the other hand, contended that the suit property was the absolute property of Muniyamma and after her the property devolved on her husband, Munireddy, They further contended that the properties were inherited by them after the death of Munireddy as they are the brothers of Munireddy.
5. Before the Appellate Court, the respondent produced a document of 1924 and the learned Civil Judge, found it fit to allow the same and remanded the entire suit for fresh disposal.
6. Sri G.S. Visweswara, the learned Advocate for the Appellant contended that the Civil Judge could not have remanded the entire suit simply because the Civil Judge thought that production of the document was necessary at the Appellate Stage.
7. If, the Civil Judge was of the opinion that the document produced by the respondent should be brought on record as additional evidence, nothing prevented him from deciding the appeal itself and there was no need to set aside the decree and the Judgment of the trial Court on that ground and remand the suit for a fresh trial. The Appellate Court could have taken recourse to the provisions of Rule 28 of Order 41 CPC. In HARADEVO MAHTO v. ABDUL AZIZ AND ORS it is observed that if the Appellate Court is of the opinion that a document should be brought on record as additional evidence, it can do so for the purpose of deciding the appeal itself if any of the ingredients of Order 41 Rule 27 C.P. Code are fulfilled. In such a case it should not set aside the decree and order of the Trial Court and remand the suit to give fresh opportunity for the party to produce the documentary evidence. The Appellate Court should take recourse to Order 41 Rule 28 C.P. Code without setting aside the decree and order of the trial Court. I am in respectable agreement with the view expressed in this Decision.
8. Hence, the Appeal is allowed and the impugned Judgment dated 9-3-1990 is set aside. Learned Civil Judge, is directed to dispose of the Appeal afresh in the light of the observations made herein and also in accordance with law as expeditiously as possible. No costs.