( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 61 OF 2010 WITH CIVIL APPLICATION NO. 5151 OF 2010 Kaduba s/o. Parbat Daud and Others .. Appellants Versus Murlidhar s/o. Bhaurao Daud and Others .. Respondents Shri A.D. Kasliwal, Advocate for the appellants. Shri V.C. Solshe, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 23.07.2010 P.C. :- 1. By this Appeal from Order, the order of remand passed by the District Judge-3, Aurangabad, in Regular Civil Appeal No. 266 of 2007, decided on 05.03.2010 is challenged, whereby the District Court set aside the judgment and decree passed in Regular Civil Suit No. 901 of 2004 dated 18.09.2007 decided by Jt. Civil Judge, Junior Division, 8th Court, Aurangabad and remanded the matter for fresh trial. ( 2 ) 2. Since, this Appeal from Order arises out of remand order, with consent of the parties, it is taken up for final hearing at the stage of admission. 3. Present respondents filed suit for partition and separate possession in respect of Gat No. 26 to the extent of 2 Hectare 26 R, situated at village Kolthanwadi, Tal. & Dist. Aurangabad. As per case of the original plaintiffs/present respondents it was a property which remained to be partitioned as it was reserved for grazing cattle at the time of previous partition. Present appellants/original defendants took defence that the suit property is their property. It is not ancestral property and it is not liable to be partitioned. The Trial Court accepted the defence and dismissed the suit. The First Appellate Court, as stated earlier, remanded the matter. The judgment of the Trial Court shows that the Trial Court has come to the conclusion that the suit property was not proved to be ancestral property by the original plaintiffs/respondents. They also failed to prove their one half share. At the same time, while answering issue No.5, the Trial Court came to the ( 3 ) conclusion that the suit was bad for non-joinder of necessary parties. It is observed by the First Appellate Court that since sisters were not joined as parties, though necessary parties having their share, the suit is bad and the matter is remanded for adding the sisters as parties to the suit and then decide the matter a fresh. 4. Adv. Shri A.D. Kasliwal for the appellants relied upon two citations. First is Balkrishna Dattatraya Butte and Ors., V/s. Dattatraya Shankar Mohite & Ors., 1998 (2) ALL M.R. 740. In that case, matter was remanded by the District Court to the Trial Court with directions that the original defendant No.1 Dattatraya S. Mohite be given an opportunity to lead the evidence and thereafter decide the rival contentions between the parties. The High Court observed in para 7 that before remand the District Court ought to have considered the evidence already placed on record. As observed in para 5 of the said citation, the Trial Court after recording the evidence and hearing the parties held that the plaintiffs were able to prove that Sunderabai was legally wedded wife of deceased Dattatraya and that they were the legal heirs of deceased Dattatraya. The Trial Court also ( 4 ) held that defendant failed to prove the Will alleged to have been executed by Dattatraya as sham and bogus. So, this Court came to the conclusion in the facts and circumstances of the case that it was not necessary to remand the matter. It is observed in para 5 of the said case that once the Trial Court has examined the case on the basis of available evidence and has reached conclusion, unless a clear case for remand was made out, the Appellate Court ought not to have remanded the matter. 5. The second case cited is Hameed (D) by LRs. & Ors., V/s. Kummottummal Kunhi P.P. amma (d) by LRs. & Ors., 2006 (7) Scale 265. In that case there was dispute over the suit property and plea of adverse possession was taken. The High Court remanded the matter. It was observed by the Supreme Court in the facts of the case that the remand was not justified. It was in the facts of that case. 6. In this case, admittedly, there were sisters who were necessary parties to the suit for partition and they have every right to lead evidence for or against the proposition that the suit properties are ancestral properties ( 5 ) depending upon what stand they take. It is also admitted that at this stage that present appellant/defendants filed separate Regular Civil Suit No. 801 of 2004 for injunction against the respondents. That suit came to be decreed and as against the same, first appeal filed by present respondents. Same was also heard by the District Court-3, Aurangabad, while deciding Regular Civil Appeal No. 266 of 2007. The appeal was also decided on 05.03.2010 and the Court allowed the appeal and held that the suit property was ancestral. As against that, present appellants have filed Second Appeal. 7. So, considering the facts and circumstances involved in the present case, in my opinion, it would not have been proper on the part of the First Appellate Court to enter into the merits of the matter and decide whether the suit property was ancestral when necessary parties were not added to the suit and the suit was bad for non-joinder of necessary parties. It would be in the interest of the parties that such issue should be decided after giving opportunity to all necessary parties. In case any observations had been made on the merits, under the circumstances same would have been prejudicial to the ( 6 ) parties. 8. In these circumstances, the Appeal from Order deserves to be dismissed. Hence, the Appeal from Order stands dismissed. 9. In view of dismissal of the Appeal from Order, Civil Application No. 5151 of 2010 for stay does not survive. The Civil Application also stands disposed of accordingly. [P.R. BORKAR,J.] snk/2010/JUL10/ao61.10