1 S.B. Civil Misc. Appeal No.1775/2007 Mohan Puri. vs. Bhanwar Puri. S.B. Civil Misc. Appeal No.1775/2007 Mohan Puri. vs. Bhanwar Puri. Date : 12.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.BL Choudhary, for the appellant. Mr.Shanker Rajpurohit, for the respondent. - - - - - Heard learned counsel for the parties. The appellant/plaintiff has preferred this appeal to challenge the order dated 17.4.2007 by which the first appellate court, Additional District Judge (Fast Track), Rajsamand set aside the judgment and decree of the trial court and remanded the matter to the trial court after framing two issues. The issues are (1) whether the plaintiff is owner of the house ? and (2) whether the suit filed by the plaintiff is within the period of limitation ? Learned counsel for the plaintiff/appellant submitted that the appellant's suit was decreed by 2 S.B. Civil Misc. Appeal No.1775/2007 Mohan Puri. vs. Bhanwar Puri. the trial court and both the parties led their evidence with respect to the ownership of the property in dispute and thereafter decision was given. It is submitted that the judgment and decree passed by the trial court cannot be set aside by the first appellate court without reversing the findings on the issues and at the same time, after both the parties understood the case of the opponent and took chance of failure and success in the trial court after leading evidence on all the points, then the first appellate court cannot and should not set aside the judgment and decree and remanded the matter to the trial court. It is submitted that the question of limitation in the facts of the case could have been decided by the first appellate court itself in view of Section 3 of the Indian Limitation Act. Learned counsel for the respondents vehemently submitted that the plaintiff came with a specific case that he is owner of the property and the defendant came with the case that he is owner of the property, then issue framed by the appellate court certainly arises in the suit which has not been framed by the trial court. The suit is barred 3 S.B. Civil Misc. Appeal No.1775/2007 Mohan Puri. vs. Bhanwar Puri. by time and, therefore, the first appellate court has not committed any error of law in framing the issues and remanding the matter. I considered the submissions of learned counsel for the parties and perused the record. It is clear from the plaint and written statement that both the parties were fully aware that what is the issue involved in the suit and they were aware that both the parties are claiming title. The plaintiff led evidence and produced sale deed to prove his title to the property and the defendant gave his evidence for the title to the property. It appears from the judgment of the trial court that none of the party had any grievance because of framing of the issue no.1 as framed by the trial court. The issue no.1 is whether the plaintiff is entitled to take possession of the property in dispute from the defendant ? That issue is required to be read in the context it is framed. The plaintiff's own case is that he is owner of the property and, therefore, he is entitled to possession. There was no ambiguity in the mind of either plaintiff or defendant with respect to the facts and foundation 4 S.B. Civil Misc. Appeal No.1775/2007 Mohan Puri. vs. Bhanwar Puri. on the basis of which the plaintiff claimed possession. In view of the above reason, there was no reason for framing the issue as framed by the first appellate court. It is also relevant to mention here that if there is prejudice caused to the party because of non-framing of the issue or even by wrong framing of issue, then the issue can be framed. I do not find such a fact situation in the present case. So far as question of limitation is concerned, that could have been examined by the first appellate court itself in the light of Section 3 of the Limitation Act. This Court in number of cases has condemned the easy remand of the matter by the first appellate court to the trial court resulting into multiplicity of proceedings for no reason. Not only this, there is a specific provision in Order 41 Rule 24 CPC which clearly enable the appellate court to pronounce the judgment itself even after resettling the issue or even after framing the issues, if the evidence is already on record. In this case, as stated above, the parties led evidence with respect to their claim of title to the property in question, then there was no reason 5 S.B. Civil Misc. Appeal No.1775/2007 Mohan Puri. vs. Bhanwar Puri. for the appellate court to remand the matter. In view of the above reasons, this appeal is allowed and the order of the first appellate court dated 17.4.2007 is set aside. Both the parties are directed to appear before the first appellate court on 29.1.2009. Thereafter, the first appellate court should decide the appeal in accordance with law. (PRAKASH TATIA), J. S.Phophaliya