S.N.Pathak, J.

1. This Miscellaneous Appeal is directed against the order dated 18-8-1992.

2. In a nut-shell, relevant facts of this appeal are that the title suit No. 23/77/24/88 was filed by the respondents of this appeal seeking declaration of title. The suit was, however, dismissed. Then the plaintiff-respondent filed first appeal No. T.A. No. 40/88/21/91 in which the impugned order was passed. By the impugned order learned Additional Judge remanded the suit to the trial Court for framing an issue whether the suit suffered from non-joinder of necessary party. It was directed by the impugned order that after framing this issue the trial Court shall pass a fresh judgment.

3. Before me it was submitted by the appellantslawyer that so far the nonjoinder of the parties to be an issue,it is for the parties themselves to raise in the trial Court. None of the parties had pleaded that the suit suffered from non-joinder or mis-joinder of parties: Therefore, there was no necessity to frame this issue.

4. On perusal of the impugned order, it transpired that the appellate Court held that W.S. of one of the defendants as also in the evidence of some of the defendants it was stated th