THE HON’BLE SRI JUSTICE C.V. RAMULU C.M.A. No. 1547 of 2008 JUDGMENT: This civil miscellaneous appeal, under Order 43 Rule 1(u) of the Code of Civil Procedure, is directed against the order made in A.S. No. 20 of 2001 dated 27.2.2008 on the file of learned Senior Civil Judge, Adoni, whereunder the judgment and decree made in O.S. No. 187 of 1998 dated 31.3.2001 on the file of learned Principal Junior Civil Judge, Adoni decreeing the suit was set aside and the matter was remanded for re-consideration after framing an additional issue. Appellants are plaintiffs. Respondents are defendants. Appellants laid suit in O.S. No. 20 of 2001 seeking declaration of title and permanent injunction against the suit schedule property. After full trial, the suit was decreed as prayed for. However, being aggrieved by the said judgment and decree, 3rd defendant carried the matter in appeal in A.S. No. 20 of 2001. The appellate Court, after detailed consideration of the judgment and decree under appeal and other material made available before it, came to the conclusion that the trial Court has not framed a particular issue for the purpose of proper adjudication of the suit and, therefore, set aside the judgment and decree passed by the trial Court and remanded the matter for re- consideration, after framing the following issue: “Whether the plaintiffs are in possession of the properties i.e. item No.1 of the schedule property to an extent of Ac.4.08 cents or whether D-3 is delivered possession by Court Bailiff as per delivery warrant and receipt issued dated 11.9.1997”? Aggrieved thereby, appellants-plaintiffs filed the present appeal. Learned counsel for the appellants-plaintiffs strenuously contended that firstly there was no scope for the appellate Court to remand the matter for re-consideration. The judgment and decree passed by the trial Court was perfectly valid and justified and based on sound principles of evidence. The lower appellate Court has not looked into the evidence properly and, in fact, there was no necessity of framing any additional issue. Thus, the appellate Court erred in allowing the appeal and remanding the matter for re-consideration. Learned counsel for the respondents, however, supported the judgment and decree passed in A.S. No. 20 of 2001 and contended that in view of the fact that the trial Court has not framed the issues properly, the appellate Court rightly found that a particular issue is required to be framed and unless and until that issue is decided in evidence, decreeing the suit does not arise. Therefore, the appellate Court has not committed any error calling for interference of this Court. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. The contention of the learned counsel for the appellants is that the remand as held by the appellate Court is not called for and does not fit into the teeth of either under Order 41 Rule 23(a) or Rule 25. The appellate Court ought not to have framed an issue and simply ought to have remanded the matter, if at all there is no such claim. Having framed the issue, it ought not to have remanded the matter for re-consideration of the entire issue. I am not in agreement with the submissions made by the learned counsel for the appellants. The lower appellate Court, while framing the issue that requires to be decided for the proper adjudication of the suit, has held as under: “Further, since the possession aspect is not appreciated by trial Court by framing specific issue, it is necessary to frame an issue with regard to delivery of possession. This Court frames additional issue i.e. Whether the plaintiffs are in possession of the properties i.e. item No.1 of the schedule property to an extent of Ac.4.08 cents or whether D-3 is delivered possession by Court Bailiff as per delivery warrant and receipt issued dated 11.9.1997. This issue requires a detailed enquiry”, and remanded the matter for re-consideration. Learned counsel for the appellants further submitted that the lower appellate Court has recorded a finding that Will is fabricated and brought into existence. In view of the fact that the matter is remanded for re-consideration, particularly after framing an additional issue, there was no necessity for the appellate Court to hold as such. Having regard to the facts and circumstances of the case, though the judgment and decree passed by the appellate Court in so far as remanding the matter for re-consideration by framing additional issue is upheld, it is made clear that any findings/observations recorded by the lower appellate Court are not binding on the trial Court while deciding the matter afresh and the trial Court shall decide the matter on its own merits, as per law. The appeal is accordingly disposed of, with the above observations. No order as to costs. JUSTICE C.V. RAMULU. Date: 1-7-2010.