D.S.Sinha - (1.) BY means of his order dated 10th February, 1988 impugned in the instant appeal, the Vth Addl. District Judge, Azamgarh, has set aside the decree and the Judgment of the trial court and has remanded the case back to trial court for deciding it afresh after getting a correct survey map prepared. The learned Judge has also directed that the evidence already on record shall be the evidence for the purpose of afresh decision and the parties shall have no right to adduce any additional evidence, except the survey map and the objection.
(2.) FROM the persual of the impugned order it is absolutely clear that the learned Judge has remanded the case for the sole purpose of getting a survey map prepared and nothing else. This could be done by the learned Judge himself. It cannot be gain said that the powers of the appellate court and those of trial court are co-extensive and the learned Judge had, therefore, power to get the survey map prepared. Remand only for the purpose of getting a survey map prepared does not appear to be a sound exercise of discretionary power of remand. Sri K. N. Rai, the learned counsel for the respondent, has very fairly conceded that the impugned order is not a just order and cannot be sustained in law. He has also very fairly signified his assent to the impugned order being set aside. For the reasons stated above, this appeal is allowed and the impugned order dt. 10th February, 1988 passed by the IVth Addl. District Judge, Azamgarh in Civil Appeal no. 490 of 1986, Ram Sakal v. Ram Bali and others is set aside. The learned Judge is directed to decide the controversy himself, after getting the requisite survey map prepared.
(3.) THERE will be no order as to costs. Appeal allowed.;