( 1 ) THIS is an appeal preferred by the Respondent in A. S. No. 212 of 1993 on the file of the III Member Tribunal for Disciplinary Proceedings-cum-VIII Additional Chief Judge, City Civil Court, Hyderabad preferred against the judgment and decree in O. S. No. 214 of 1984 on the file of the IX Assistant Judge, City Civil Court, Hyderabad.

( 2 ) THE first appellate Court allowed thesaid A. S. No. 212 of 1993 setting aside the judgment and decree of the trial court and remitted the matter back to the trial court for fresh disposal observing that the disposal of the suit is contrary to and without complying with the provisions of the Wakf act and without framing the relevant issues which would cause prejudice to the parties to the suit.

( 3 ) THE Respondent who was the plaintiffin the said O. S. No. 214 of 1984 filed the said o. S. No. 214 of 1984 for declaration that the suit house is part and parcel of the Wakf property and that the Respondent is entitled to the possession thereof after evicting the appellant and their men from the suit house with mesne profits from the date of the suit till the date of delivery of possession and costs. The Appellant who was the Defendant in the said O. S. No. 214 of 1984 denied the title of the Respondent-Plaintiff over the suit property and claimed title for himself contending that it is ancestral property; that the Respondent-Plaintiff is in continuous possession and enjoyment of the same for more than a century and that the suit is barred by limitation. The trial Court, on the basis of the pleadings, ought to have framed appropriate issues but framed the following issues:" (1) Whether the Plaintiff is entitled for the possession as prayed for? (2) Whether the plaintiff is entitled for the mesne profits? and (3) To what relief?

( 4 ) THE trial court, after recording theevidence on both sides, decided the above issues holding that the Respondent-Plaintiff is not entitled to declaration of title and also to eviction of the Appellant-Defendant as prayed for. Accordingly the trial Court dismissed the said O. S. No. 214 of 1984 through its judgment, dated 29-9-1993. The first appellate Court, while remitting the matter back to the trial Court, directed the trial court to frame appropriate issues on the basis of the pleadings, give an opportunity to both parties to adduce evidence, if any, and decide the matter on merits. The appellant-Defendant being aggrieved by the said direction of the first appellate Court preferred this C. M. A.

( 5 ) THE learned Counsel for the Appellant Defendantsubmitted that as there is sufficient evidence adduced by both parties before the trial Court and as the said evidence is sufficient to decide the additional issues, if any, to be framed and as the trial Court gave the finding on the question of title also after considering the evidence adduced by both parties, there is no necessity to frame specific issue to that effect and the parties understood that the evidence was adduced regarding the said issue also, therefore, the first appellate Court ought to have decided the matter on merits instead of remanding the matter to the trial court.

( 6 ) THE learned Counsel for the Appellantfurther submitted that even if the appellate court comes to a conclusion that a specific issue or issues are required to be framed, the appellate Court ought to have remitted the matter back only for the purpose of deciding those issues which were not framed by the trial Court by keeping the appeal pending and decide the appeal after receipt of the report from the trial Court and in spite of that, remitting the matter to the trial Court as a whole without complying the provision and without going into the merits of the case is bad under law, therefore, the judgment of the first appellate Court is liable to be set aside. The point for consideration is whether the judgment and decree of the first appellate Court in A. S. No. 212 of 1993 is liable to be set aside?

( 7 ) THE lea