Judgment ( 1. ) This appeal has been preferred by the plaintiffs against remand order dated 25/6/2009 passed by the Court of Additional District Judge, Karera, District Shivpuri in Civil Appeal No. 66-A/05. ( 2. ) Briefly stated relevant facts are that the plaintiffs instituted a suit for declaration of title and restoration of possession with the allegations that the disputed property was owned by one Banke Jaan, who sold it to plaintiff No. 1 and his father Lakhmichand vide registered sale deed dated 4/4/1955. After the death of Lakhmichand, his interest devolved upon his heirs including plaintiff No. 1. On 8/9/1982, defendant/respondent No. 1 forcibly tried to occupy the suit land. Proceedings were initiated under section 145 of Cr.P.C. and the suit land after its attachment was granted in Supurdgi to defendant No. 2 hence the suit ( 3. ) Defendants No. 1 and 2 submitted their written statement refuting thereby the allegations contained in the plaint. It was stated in specific that Banke Jaan had delivered the suit land to defendant No. 1 and his father on Batai under an oral agreement on 7/6/1952. Since then they have been in possession and Banke Jaan being not in possession at the time of execution of alleged sale deed dated 4/4/1955, was not competent to execute the sale deed, instead defendants by passage of time became Bhumiswami. ( 4. ) After recording the evidence, learned trial Court decreed the suit in favour of plaintiffs vide judgment and decree dated 20.9.05. Aggrieved by it, Civil Appeal No. 66-A/05 was preferred. ( 5. ) During pendency of Civil Appeal, two applications one under Order 6 Rule 17 CPC and another under Order 41 Rule 27 CPC were submitted. Defendants by way of amendment sought to withdraw the pleading about oral grant of land on Batai in the year 1952 and, instead, sought leave to incorporate that the land was given to respondent No. 1 on Batai vide written document dated 7/6/1946. Unregistered stamp deed with ink spread over it on front as well as back side was enclosed with the application under Order 41 Rule 27 CPC as an additional evidence. ( 6. Unregistered stamp deed with ink spread over it on front as well as back side was enclosed with the application under Order 41 Rule 27 CPC as an additional evidence. ( 6. ) Learned lower appellate Judge after hearing the arguments dismissed the application under Order 6 Rule 17 CPC but, simultaneously, allowed the application under Order 41 Rule 27 CPC, granting thereby leave to produce the said document as an additional evidence. Accordingly, the matter was remitted back to the trial Court. ( 7. ) Shri Bansal, learned counsel for the appellant contended that the defendant/respondent No. 1 having chosen to plead Patta in oral manner cannot be permitted to withdraw such admission. Defendant/respondent No. 1 has also stated on oath before the trial Court about oral grant of Patta. Keeping the same in mind, learned trial Judge has already dismissed the application for amendment. Since the pleadings are not permitted to be amended, proposed document pursuant thereto cannot be taken into consideration for want of pleading. Reliance has been placed on the decision of apex Court in the case of Syedand Company v. State of Jammu and Kashmir, (1995) Supp. 4 SCC 422. ( 8. ) Shri Ashish Shrivastava, learned counsel for respondent No. 1 submitted that the amendment application ought to have been allowed because the defendant has a right to withdraw the admission in suitable circumstances. ( 9. ) It maybe seen that defendant/respondent No. 1 categorically pleaded in the written statement about having obtained the suit land on oral Patta on 7/6/1952. It is submited by the learned counsel that Patta was not traceable and therefore, on being traced out, defendant/respondent No. 1 may be permitted to plead the same. ( 10. ) On consideration of the aforesaid submission, it is observed that even if the alleged Patta was not traceable, factum about written grant of suit land on Batai could have been pleaded. Instead, defendant/respondent No. 1 categorically and specifically pleaded that on 7.6.1952, the suit land was given to him and his father on Batai in oral manner. Similar was the statement of him on oath recorded in the trial Court. No reason has been assigned and no explanation has been given by him for not making such pleading earlier. This being so, learned lower appellate Court is found justified in dismissing the application for amendment. Similar was the statement of him on oath recorded in the trial Court. No reason has been assigned and no explanation has been given by him for not making such pleading earlier. This being so, learned lower appellate Court is found justified in dismissing the application for amendment. Moreover, in the absence of cross-objections with regard to rejection of application for amendment, the aforesaid contention is not liable to be accepted. Consequently, application under Order 41 Rule 27 CPC is also liable to be rejected and is, accordingly rejected for want of pleading. ( 11. ) At this stage, learned counsel Shri Shrivastava rightly pointed out that the trial Judge at the time of final argument took certain documents into consideration as revealed in paragraph 13 of the trial Court judgment. No opportunity of rebuttal was granted to defendant/respondent No. 1. This being so, this appeal is allowed. Impugned judgment and decree are hereby set aside. The matter is remitted back to the lower appellate Court to decided the appeal afresh after granting opportunity of rebuttal to defendant/respondent No. 1 in accordance with law. Parties to appear before the lower appellate Court on 5th April, 2010.