1. This Appeal from Order under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC for short) is filed by appellants (L.Rs. of original plaintiff Mohd. Sardar s/o Mohd. Umar), against the order of remand. (I will refer to Mohd. Sardar as plaintiff) Plaintiff Mohd. Sardar filed Regular Civil Suit No. 46/1999 against the respondent Rafiq Ahmad (hereinafter referred to as "the defendant") in the Court of Civil Judge, Junior Division, Sailu for specific performance of contract, which came to be decreed on 6.7.2001. The defendant filed Regular Civil Appeal No.89/2004 before District Judge, Parbhani. The Principal District Judge, Parbhani, by judgment and order dated 14.1.2009, remanded the matter to the trial Court and thus this Appeal.

2. In nutshell, the matter is as under:

Plaintiff Mohd. Sardar brought the suit, claiming that defendant had entered into agreement of sale dated 19.8.1996 for the suit property for consideration of Rs.50,000/-. Plaintiff had paid earnest amount of Rs.20,000/-. Before this transaction, plaintiff was already cultivating the suit property on batai. After the agreement of sale, he continued the possession under the agreement of sale and entry in 7/12 extract of his cultivation was made. Defendant did not execute sale deed and did not receive balance of consideration. Defendant tried to obstruct possession of plaintiff, because of which another suit bearing Regular Civil Suit No.42/1999 was filed for injunction. Plaintiff issued notice dated 29.5.1999 to defendant to execute sale deed and on failure, filed Regular Civil Suit No.46/1999 for specific performance.

3. Defendant resisted the suit. He admitted that there was agreement of sale but denied giving possession under the agreement of sale. Defendant claimed that he asked plaintiff to get sale deed executed and to pay remaining amount or cancel the agreement, but plaintiff avoided.

4. With such rival pleadings, the plaintiff brought on record oral and documentary evidence regarding the transaction. Trial Court observed that defendant had indirectly admitted execution of the agreement of sale and contentions raised in the written statement were not proved as defendant did not come to establish the same. The trial Court found that plaintiff was in possession on the basis of agreement of sale and that revenue entries were made accordingly, as well as found that defendant failed to execute sale deed and plaintiff was ready and willing to perform his part of contract. The trial Court then decreed the suit.

5. At the time of appeal, District Judge, on the basis of arguments raised, recorded points whether the defendant did not get proper opportunity to adduce evidence and if the matter deserved to be remanded and whether the judgment deserved to be quashed and set aside being illegal. District Judge found that the defendant had not got proper opportunity, and partly allowed the appeal on payment of costs.

6. Before District Judge, bar of Order II Rule 2 of CPC was tried to be raised in view of the earlier Regular Civil Suit No.42/1999 filed for injunction, but the point was rejected.

7. As regards remand, although the District Judge did not proceed to elaborately examine the oral evidence already brought on record by the plaintiff, or decide other issues, he went on to examine the agreement of sale and inter alia found that there were recitals that when the earnest amount was returned, the transaction of sale was to be treated as cancelled. District Judge referred to the fact of closing of evidence by plaintiff on 27.2.2001 and observed that the defendant remained absent and requested several adjournments on the ground of illness of his daughter and other members of family and ultimately his application Exhibit 46 was rejected. District Judge noticed that defendant had not adduced evidence. District Judge was impressed by the extent and type of the suit land and found it appropriate to give opportunity to the defe