Kaushal Jayendra Thaker, J. - (1.) This appeal has been preferred by the appellants being aggrieved by the order passed by the first appellate Court directing the suit to be retried. During the pendency of this appeal, respondent No.1 and 2 have passed away and therefore the heirs have been taken on record. As far as respondent nos. 3 and 4 are concerned, they remained undefended and none appeared for them even when the matter is called out for argument.
(2.) The main submission of learned counsel for appellant is that the first appellate Court could not have remanded the matter without giving any findings as to what were the reasons for remand and just because some witnesses were not examined would not be the basis for remanding the matter afresh.
(3.) It is submitted that the evidence was led by both the parties which was considered and recording of evidence was over and the suit being decreed in favour of the present appellant. It was a finding of fact that a sale deed dated 3.11.1983 which was executed by Smt. Jwala Devi was fictitious and therefore the appellate Court could not have remanded the matter only on the ground that some persons were not examined by defendants or there was a necessity of further evidence. It is further submitted that the first appellate Court should have decided the appeal on merits without remanding the case under Order 41, Rule 23 of the Code of Civil Procedure, 1908.;