The main legal point established is that the appeal under Order XLIII Rule 1(u) is not maintainable if the lower appellate court did not disturb the findings of the trial court on most issues, and the only remedy available is by filing a Second Appeal.

1. This Misc. Appeal is directed against the judgment in reversal dated 8th April, 1999 passed in Title Appeal No. 89 of 1994 arising out of the judgment and decree passed in Title Suit No. 135 of 1987, by learned Sub-Judge II,Patna.

2. The appellants are the plaintiffs. The suit was filed for declaration of title of the plaintiffs over the suit land fully described in Schedule I of the plaint and non-title of the defendants and further for holding that the sale deed dated 15.10.1986 executed by defendant 1st party in favour of defendant 2nd party is illegal, un-authorised and without any title and that the defendant 2nd party has not acquired any title and their possession over the suit land is that of a trespasser. Further prayer is for passing a decree for recovery of possession and mesne profit and also for permanent injunction restraining the defendants permanently from making any construction over the suit land.

3. Plaintiff-appellants succeeded in getting the decree against the defendants with a direction to defendant no. 3 to deliver vacant possession of the suit land to them within three months, failing which the plaintiffs were held to be entitled to recover the possession of the same through the process of the Court. In appeal vide Title Appeal No. 89 of 1994, 2nd Additional Sessions Judge, Patna held that to meet the end of justice it is necessary to examine the genuineness of the left thumb impression of late Ram Ghulam Mahto on memo of partition (Exhibit-6) between late Judagi Mahto and late Ram Ghulam Mahto. The Court held that the onus lies heavily upon the plaintiffs to firstly and specifically establish that the Exhibit-6 bears thumb impression of both late Judagi Mahto and late Ram Ghulam Mahto. While setting aside the judgment and decree the lower appellate court remanded back to the triai court concerned to afford proper opportunity to the plaintiffs to prove the genuineness of the left thumb impression of late Ram Ghulam Mahto as well on Exhibit-6, with further direction to give its findings on issue nos. 6 to 8 of the suit and pass judgment and decree therein afresh accordingly. The parties were directed to appear before the court-below on 21.6.1999 on which date the court-below was directed to proceed further as per its convenience. As already stated above, the present appeal is directed against the said judgment of the lower appellate court.

4. The appellants have challenged the correctness of the judgment of the lower appellate court on all counts including on the question of non-application of judicial mind to the memorandum of partition (Exhibit-6) and genuineness of L.T.I. of Ram Ghulam Mahto over the same and further reversing the judgment and decree of the trial court without giving any finding on documentary and oral evidence. The appellants have also contended that the lower appellate court committed grave error in remanding the case to the trial court for fresh findings on issue nos. 6 to 8 although genuineness of memo of partition was contained in issue no. 6 only and in respect of the decision of rest two issues there were sufficient independent evidence both documentary and oral available on records supporting the case of the plaintiffs. It is also contended that the lower appellate court remanded the suit for fresh decision on Issue nos. 7 & 8 without setting aside the findings arrived at by the trial court on that after due consideration of both oral and documentary evidence on records in respect of the said two issues. Thus, the appellants in the present Misc. Appeal has, in fact, assailed the validity of the judgment of the lower appellate court on all counts including merit.

5. The question on which the matter has been heard and order has been reserved is as to whether the Misc. Appeal will lie against the impugned judgment or the appellants have remedy in Second Appeal against the same.

6. According to the learned counsel for the appellants the present appeal under Order XLIll