IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.30 of 2005 ZUBAIDA KHATOON & ORS Versus MD.IMRAN ----------- For the Appellants:M/S.S.K.Verma,Sr.Adv,Jitendra Kishore Verma,Adv For the Respondent:Mr.Raghib Ahsan,Sr Adv, Anil Kumar, Advocate 6 15.7.2008 The order under challenge is dated 31.12.2004 passed in Title Appeal No.180/1996 by the learned 4th Additional District Judge. Patna, whereby and whereunder he has set aside the Judgment and decree dated 11.10.1996 passed in Title Suit No.30/1980. The appellant in Title Appeal Md.Imran was Defendant No.4 in the suit. The learned 4th Additional District Judge, Patna, by setting aside the order of the trial court in Title Suit No.30/1980 has remanded the matter to the court below to frame separate issue and decide the same as to who was in possession over the disputed land at the time of vesting of Zamindari on 1.1.1956 and whether the plaintiffs acquired the status of raiyat over the same. He has also directed the trial court to decide Issue No.(ii)”:whether the suit is barred under the law of limitation ”which has not been decided by the court below. Learned counsel for the appellant and respondents has been heard. It has been submitted on behalf of the appellants that, as a matter of fact, the learned First Appellate court should have decided the appeal as there was material on the record and so there was no occasion to send back the 2 matter to the court below for deciding the same afresh. Learned counsel for the appellant has also submitted that issue in respect of limitation was not pressed on behalf of the contesting defendants and so the learned trial court has rightly held and decided this issue in favour of the plaintiffs and in that context of the matter, this issue is not required to be decided afresh on merit. In support of his contention, the learned counsel for the appellants has relied upon a decision reported in AIR,1996(SC),869(Para-32) with this advancement of plea that a party who abandons a particular plea at a particular stage can not be allowed to re-agitate in appeal. On the other hand, learned counsel for the respondents in reply has submitted that the impugned order does not suffer from any illegality or impropriety. Rather, the same has been passed in consonance with the order under Order 41 Rule 25 CPC. However, in all fairness learned counsel for the respondents has submitted that in order to avoid any further delay in the matter, the trial court should be specifically directed to decide the suit in respect of possession of the suit land on the date of vesting of the Zamindari i. e.on 1.1.1956 and send back the matter to the First Appellate court and then the First Appellate court should decide the appeal after receipt of such finding from the trial court,expeditiously. As regards directions of the First Appellate court in the impugned order for deciding the suit afresh in respect of limitation, the learned counsel for the respondents has submitted that the same should also be decided by the trial court and transmit such findings to the First Appellate court. 3 After considering aforesaid facts and circumstances and after hearing learned counsel of both the sides, this appeal is disposed of with direction to the trial court to decide these two issues afresh as directed by the First Appellate court and then transmit the same within three months from the date of receipt of a copy of this order to the first Appellate court. The First Appellate court,in turn,will decide the appeal on receipt of the aforesaid two findings from the trial court within shortest possible time preferably within six months thereafter. With this aforesaid directions and observations this appeal is disposed of. SKBOSE (Subash Chandra Jha)