The central legal point established in the judgment is the scope of power of remand by the Appellate Court under Order 41 Rule 23-A of the Code of Civil Procedure, 1908, and the conditions for re-trial.

JUDGMENT :

1. The question that arises for consideration in this appeal is, whether the order of remand passed by the Appellate Court is in consonance with Order 41 Rule 23-A of the Code of Civil Procedure, 1908 ?

2. Heard Mr. S. V. Natu, learned Counsel for the Appellants.

3. Notice is served on the Respondents, however nobody has entered appearance for the Respondents. The Respondents had appeared before the trial court but did not file their written statement. The Appeal before the Appellate Court was also not contested by the Respondents as the lawyer for the Respondents remained absent.

4. The facts as noticed by the Appellate Court, leading to the above question of law in brief can be summarized as under :

A. The Plaintiffs / Appellants had filed suit for possession, based on title and for mesne profit.

B. The subject matter of the suit is an agricultural land bearing Gut No.296/1 admeasuring 2 Hectare 53-R situated within the local limits of village Nandvan Taluka Sakri District Dhule. (Hereinafter referred to as “suit land”).

C. It is the case of the Appellant / Plaintiffs that the suit land was originally belonging to the joint Hindu family of grandfather of plaintiff No.1 Shri. Dagadu Vithoba. Following is the genealogy to understand the relationship.

D. According to plaintiffs, after demise of Dagadu Vithoba, land was mutated in the name of his son Dawal Dagadu. After the death of Dawal Dagadu land was mutated in the name of his elder son Hiraman, and wife Banubai. After the death of Hiraman suit land was mutated in the name of Garbad Dawal, Banubai Dawal and Shamrao Dawal. Defendants have no concern with the suit land. They are not relatives or kinsfolk of plaintiffs and has no right in respect of suit land. They took disadvantage of ignorance of Garbad Dawal, and mutation entry No.1538 was taken in 1982 showing that suit land was allotted to defendant No.1 in partition. Suit land is new tenure land, and defendant No.1 is not the relative or family member, and hence by such mutation entry the rights of the plaintiffs are not lost in the suit land. Banubai and Garbad have expired and plaintiffs have became exclusive owners of the suit land.

E. According to plaintiffs, the possession of defendants over suit land is unauthorized and illegal. They have filed an appeal against mutation entries No.1538 and 1581 bearing RTS Appeal No. 12/2013. Said appeal was dismissed on 18/01/2015 and they were directed by revenue authorities to get the dispute settled through Civil Court. It is further the case of plaintiffs that they have recurring cause of action, and hence they filed a suit for above stated relief.

F. Defendants appeared before the learned trial Court but did not choose to file their written statement. Hence, matter proceeded without their written-statement.

G. The learned Trial Court formulated issues as under :

H. On the first issue, after considering the evidence on record, the learned Trial Court held that the suit property is the Plaintiffs / Appellants ancestral property and the Plaintiffs / Appellants have inherited the same. However, while considering Issue No.2, the learned Trial Court observed that the Plaintiffs / Appellants are not entitled for recovery of the suit property, as the suit is ba