JUDGMENT :

1. Admit. With the consent of the learned counsel for the parties, the appeal is taken up for hearing forthwith.

2. Power of an Appellate Court to remand a suit for retrial under Order 41 Rule 23A of the Code of Civil Procedure 1908 is an issue that has attracted attention of this Court in the present appeal. The issue arises in the light of Appellant’s challenge to the judgment and order dated 22 March 2022 passed by the District Judge, Raigad by which the judgment and decree dated 22 April 2017 passed by the Joint Civil Judge Junior Division, Alibaug in Regular Civil Suit No.147/2011 is set aside and the suit is remanded for fresh hearing after adding necessary parties and after framing additional issues.

3. For better understanding of the controversy involved, narration of few basic facts of the case would be necessary. Appellant-Plaintiff has pleaded in his plaint that various properties were jointly owned and possessed by Waman Nathu Thakur and Bhaskar Rama Thakur. There was an oral partition on 1 June 1950 between the duo in accordance with which, Mutation Entry No. 1187 was effected. Land bearing Survey No.100 at Village-Saral, Taluka-Alibaug, District-Raigad was subject matter of partition. In accordance with the partition, the land bearing old Survey No.100/3/A was allotted to the share of Waman Nathu Thakur effecting Mutation Entry No. 2090 on 15 August 1975, whereas the land bearing Survey No.100/3/B was allotted to the share of Bhaskar Rama Thakur. It appears that the said land bearing Survey No.100 falling in Village-Saral became part of Village-Mathroli and was given Survey No.9 in the year 1975. Accordingly, land bearing old Survey No.100/3/A falling to the share of Waman Nathu Thakur was re-numbered as Survey No. 9/3/A whereas land bearing old Survey No.100/3/B falling in the share of Bhaskar Rama Thakur was re-numbered as Survey No.9/3/B. Plaintiff further pleaded that after implementation of the Consolidation Scheme, the land bearing Survey No.9/3/B was given Gat No.36, whereas land bearing Survey No.9/3/A was given Gat No.34.

4. Plaintiff-Vasant is the son of Bhaskar Rama Thakur and claims ownership in land bearing Gat no.36. Defendant- Sitaram is the son of Waman Nathu Thakur and according to Plaintiff, he and his legal heirs are entitled to the land bearing Gat no.34. It is Plaintiff’s case that, legal heirs of Waman Nathu Thakur including Sitaram do not have any right, title or interest in land bearing Gat no.36. On 31 May 2011, Plaintiff published public notice in respect of suit property bearing Gat no.36 admeasuring 0 Hectares 36.4 Ares. The defendant-Sitaram objected to the public notice on 3 June 2011 and claimed a share in land bearing Gat no.36. It is plaintiff’s case that Defendant’s objection to the public notice gave rise to cause of action for filing Regular Civil Suit No. 147/2011 seeking a declaration that Plaintiff-Vasant Bhaskar Thakur is the owner of land bearing Gat no.36 (old Survey no.100/3/B and old Survey no.9/3/B) and that Defendant has no right, title or interest therein. Plaintiff also sought injunction restraining Defendant from disturbing his possession in suit property bearing Gat no.36.

5. Defendant appeared in the suit and filed his Written Statement and raised a plea that Gat no.36 was formed by clubbing old Survey nos. 9/3/A and 9/3/B, on account of which, the land which had fallen to the share of Waman Nathu Thakur, in partition bearing Survey no.9/3/A got subsumed in Gat no.36. That therefore Plaintiff cannot be the sole owner or possessor of the entire land forming part of Gat no.36. It was further pleaded by the Defendant that land bearing Gat no.36 is in two parts which is divided by a bund and that the portion on eastern side is cultivated by Plaintiff, whereas, the portion on western side is being cultivated by Defendant and his nephews. In his Written Statement, the Defendant also disclosed the factum of filing Regular Civil Suit No.147/2011 seeking a declarati