JUDGMENT :

Heard the counsel for the parties.

2. This appeal has been filed against the judgment in Title Appeal No. 29/2018 by the learned District Judge, Vaishali at Hajipur, whereby the judgment and decree of the trial court dated 15.03.2018 and 27.03.2018 respectively in Title Suit No. 486/2007 has been set aside and on finding that there is complete lack of documentary evidence in support of the contentions raised by the plaintiff/appellant, the entire case has been remanded to the trial court under the provisions of Order 41 Rule 23-A of the Code of Civil Procedure for retrial and disposal.

3. The learned counsel for the appellant/plaintiff has raised a slender issue that in case of both the parties to the suit claiming oral partition of ancestral land, there could be no documentary proof and if the appellate court was not in agreement with the findings of the trial court, the judgment of the trial court could have been reversed but the same ought not to have been remanded.

4. It was further contended that there is no finding of the appellate court that the trial court did not dispose of the suit as required under Order 20 Rule 3 or under Order 11 Rule 31 of the Code of Civil Procedure and therefore, it ought not to have remanded the case but should have decided the appeal. It has also been urged on behalf of the appellant/plaintiff that the appellate court should have disposed of the appeal in terms of Rule 25 of Order 41.

5. Alternatively, it was argued that if at all the appellate court was of the view that certain issues relevant for disposal of the suit were not framed and which was essential for the right decision in the suit on merits, the appellate court could have taken resort to the provisions contained in Rule 25 of Order 41 and should have framed issues and thereafter referred the same for trial to the trial court with a direction to take additional evidence as required.

6. Thus, the sum and substance of the argument on behalf of the appellant is that notwithstanding the findings of the trial court as well as the appellate court, the case of remand under Order 41 Rule 23A had not been made out and therefore such an order cannot be sustained in the eyes of law.

7. As opposed to the aforesaid contention, learned counsel for the respondent/defendants has submitted that primafacie, the findings of the trial court in favour of the appellant/plaintiff has not found favour with the appellate court and therefore in its wisdom, the appellate court has remanded the entire case for retrial.

8. The case of the appellant/plaintiff before the trial court was that he had purchased the suit land from one Jagarnath Chaudhary (since deceased), son of Kishori Prasad and in support of such claim, he had brought on record the deed of agreement of sale dated 27.10.1998 (Ext.-1) and the sale deed dated 28.01.1999 with respect to 10 decimals of land lying towards the west of RS Plot No. 505 of Khata No. 77.

9. With respect to the line of succession and the title and ownership of the vendor, it was urged by the appellant/plaintiff that one Hirday Prasad Chaudhary had two sons viz. Jagdambi Prasad and Kishori Prasad, who, after the death of their father, had orally partitioned their landed properties. As per the family arrangement of partition, the entire RS Plot No. 505 of Khata No. 77 recording 19 decimals of land fell in the share of Kishori Prasad.

10. Kishori Prasad had two sons viz. Jagarnath Chaudhary (since deceased: vendor of the appellant/plaintiff) and Upendra Chaudhary (vendor of respondent no. 2) who also effected oral partition amongst themselves after the death of their father Kishori Prasad.

11. The suit land was divided into two parts of 10 decimals each, the western side of which came in the share of Jagarnath Chaudhary and the rest in the share of Upendra Chaudhary. Since Jagarnath Chaudhary (deceased) was in urgent need of money, he sold the land to the appellant/plaintiff on 28.01.1999 with respect to 10 decimals of land fro