Pradeep Kumar, J. - (1.) THIS first appeal is directed against the judgment and decree dated 30.8.2003 passed by Sri Rajesh Kumar Dubey, 1 Additional District Judge, Hazaribagh in Title Appeal No. 4 of 1994 whereby and whereunder the appeal was allowed and the case was remanded back to the trial court for retrial on formulation of three points by setting aside the judgment dated 30.11.1993 passed by Munsif, Hazaribagh in Title Suit No. 145 of 1989.
(2.) IT is submitted by the learned Counsel for the appellants that the learned appellate court has misdirected itself by remanding the case back to the trial court for giving a finding as to the actual area of land in dispute by appointing a Survey Knowing Pleader Commissioner when, in fact, there was no dispute with regard to the area of the suit land. It is further submitted that the learned appellate court has remanded the matter back to the trial court for marking the defendants documents, which was marked as Ext. -'X' since the documents were marked and hence it was marked for identification. If in the opinion of the lower appellate court it was fit for marking then he could have marked the same and as such the order of remand is beyond the scope of Order 41 Rule 23 or Rule 23 -A C.P.C and hence the impugned order is only fit to be set aside. Learned Counsel has relied in the judgment of Patna High Court reported in, 2004(3) J.C.R. 406. On the other hand, learned Counsel appearing for the respondents has submitted that the documents relied by the respondents -defendants i.e. the Patta and Hukumnama were properly marked as exhibits and the same were marked only as -X' for identification and hence the trial court did not rely on the same. In that view of the matter, the learned appellate court rightly remanded the matter back by setting aside the judgment and decree passed by the trial court.
(3.) AFTER hearing learned Counsel for the parties and going through the record, I find that the plaintiffs -appellants had filed Title Suit No. 145 of 1989 before the Munsif, Hazaribagh for declaration of title and confirmation of possession and in the event of finding the plaintiffs dispossessed for the recovery of possession.;