The first appellate court should make endeavors to dispose of the case itself and should only remand the case in exceptional cases. The remand order should comply with the mandatory requirements under Order XLI Rule 30 and 31 of CPC.

JUDGMENT

1. The captioned miscellaneous second appeal is filed by the appellant/plaintiff questioning the remand order passed by the first appellate court in R.A.Nos.78 and 79 of 2009.

2. Brief facts leading to the case are:

The present appellant/plaintiff file suit for declaration and injunction claiming right and title in suit land bearing Sy.No.43/A totally measuring 5 acres 1 gunta on the basis of the registered sale deed dtd. 26/3/2000 for sale consideration of Rs.60,000.00 executed by defendant Nos.4 and 5. The appellant/plaintiff contended that pursuant to acquisition of valid right and title, a varadi was submitted to effect the mutation in terms of the registered sale deed in his favour. It is at this juncture, defendant Nos.1 to 3 filed objections to the said varadi, objecting for effecting mutation in terms of acquisition of right and title based on a registered sale deed. The appellant/plaintiff also contended that respondent Nos.1 to 3 interfered with the possession over the purchased land by denying title of appellant/plaintiff. This compelled the appellant/plaintiff to file suit seeking declaration and injunction in O.S.No.16/2006.

3. After receipt of summons, defendant No.2 filed written statement and defendant Nos.1 and 3 adopted the same. Defendant No.6 filed an independent written statement and claimed that husband of defendant No.5 namely Hampamma has bequeathed the suit land under Will dtd. 9/12/1995 and therefore, defendant No.6 claims exclusive ownership over the suit land measuring 5 acres 1 gunta and consequently disputed the title of defendant Nos.4 and 5.

4. The appellant/plaintiff in support of his contention examined himself as P.W.1 and examined three independent witnesses as P.Ws.2 to 4 and relied on documentary evidence vide Exs.P1 to P12. Defendants examined in all five witnesses and relied on documentary evidence vide Exs.D1 toD19.

5. The trial court having assessed oral and documentary evidence answered issue Nos.1 to 4 in the affirmative and recorded a finding that appellant/plaintiff has succeeded in establishing his title over the suit schedule-A property. The trial court also held that appellant/plaintiff succeed in proving that defendant No.5 who is wife of Karbasayya inherited her husband's property. The trial court also recorded a finding that appellant/plaintiff succeeded in proving that defendant Nos.4 and 5 have jointly executed registered sale deed for sale consideration of Rs.60,000.00 and defendant Nos.1 to 3 are illegally obstructing lawful possession and enjoyment of the appellant/plaintiff over the suit schedule property.

6. Defendant No.6 having set up a Will by specifically alleging that husband of defendant No.5 namely, Karbasayya bequeathed the suit land under Will dtd. 9/12/1995 did not let in any rebuttal evidence to prove title over the suit schedule property based on a Will. Defendant No.6 having failed to contest the suit preferred an appeal before the first appellate court in R.A.No.78/2009 and other defendants preferred appeal in R.A.No.79/2009. The first appellate court has allowed both the appeals and has remitted the matter to the trial court to enable defendant No.6 to lead evidence on Will. The present appellant/plaintiff feeling aggrieved by the remand order is before this court.

7. Learned counsel for the appellants/plaintiffs would vehemently argue and contend before this court that defendant No.6 who preferred an appeal has not at all assigned any sufficient reasons for having failed to contest the proceedings. Learned counsel for the appellants would submit that present respondent No.6/defendant No.6 failed to examine any witness to the Will and has also not stepped into the witness box. He would submit to this court that respondent No.6/defendant No.6 has not offered any satisfactory explanation for having failed to contest the proceedings. Therefore, he would submit to this court that remand order does not satisfy the ingredients of Order XLI Rule 23 to 2