THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.142 OF 2011 JUDGMENT: This Civil Miscellaneous Appeal is preferred aggrieved by the judgment and decree, dated 08-09-2010 in A.S.No.4 of 2007 on the file of the Judge, Family Court-cum-Additional District and Sessions Judge, Vizianagaram, in remanding the matter to the trial Court for fresh disposal in accordance with law. 2. Originally the suit in O.S.No.83 of 2002 on the file of Junior Civil Judge, Kothavalasa, was filed for declaration of right of the plaintiffs in respect of suit schedule property consisting of Ac.0.14 cents in Ganisettipalem village, Kothavalasa mandal, Vizianagaram District and for consequential relief of recovery of possession. After considering both oral and documentary evidence, the trial Court decreed the suit. Aggrieved thereby, defendants preferred an appeal. The appellate Court after re- appreciating the evidence on record, came to the conclusion that no satisfactory oral and documentary evidence was adduced by both parties and accordingly, remanded the matter for fresh disposal. Challenging the same, this appeal is preferred. 3. Learned counsel appearing for the appellants-defendants contended that unless the appellate Court comes to a conclusion that re-trial is necessary, remanding the matter may not arise under Order XLI Rule 23-A CPC, that none of the parties prayed the appellate Court to remand the matter and hence, he prays to set aside the impugned judgment. 4. On the other hand, learned counsel appearing for the respondents-plaintiffs contended that as the appellate Court found that the evidence adduced by both parties was not sufficient to determine the issues involved in the suit, the appellate Court rightly remanded the matter giving opportunity to both parties to adduce necessary evidence and therefore, the judgment under challenge does not suffer from any infirmities so as to call for interference by this Court. 5. The suit was filed by the plaintiffs seeking declaration of title basing on a registered sale deed. Similarly, the defendants also claiming title to the property under a registered sale deed. Therefore, basing on the said sale deeds and the evidence adduced by both parties, the appellate Court ought to have decided the point involved. The question of examining village officers or filing of relevant documents and the property has to be measured by both parties with the help of Mandal Surveyor may not arise because the parties to the documents were already examined in the trial Court. Since there is no dispute about the identity of the property, question of measuring the land with the help of Mandal Surveyor does not arise. Therefore, findings of the appellate Court are not in accordance with the evidence available on record. The appellate Court on flimsy grounds, remanded the matter to the trial Court for fresh trial. It is not a case of re-trial because under Order XLI Rule 23-A CPC, remand can be permissible only the Court comes to a conclusion that re-trial is necessary in the interest of justice. Such is not the case here. The facts on hand do not fall under Order XLI Rule 23-A CPC. Therefore, the impugned judgment is liable to be set aside and accordingly, it is set aside. 6. It is brought to the notice of this Court that the respondents-plaintiffs filed cross-objections in the appeal and those cross-objections were dismissed because the appeal was allowed. In view of the fact that impugned judgment is set aside, the cross-objections have to be restored to its original file. 7. Accordingly, the Civil Miscellaneous Appeal is allowed. The appellate Court is directed to dispose of the appeal and cross- objections in accordance with law after giving reasonable opportunity to both parties. No costs. ________________ K.C. BHANU, J DATED: 05-09-2011 Hsd