JUDGMENT :

C.L. Soni, J.

This appeal under Section 100 of the Code of Civil Procedure is against the judgment and order dated 31.12.2011 passed by learned Second Additional Sessions Judge, Jamnagar in Regular Civil Appeal No.41 of 2010, whereby the learned Appellate Judge quashed and set aside the judgment and decree passed by the learned Trial Judge in Regular Civil Suit No.135 of 2005 dated 5.3.2010 and remanded the matter to the Trial Court for the purpose of deciding the below mentioned issue raised by the learned Appellate Judge,

"whether the suit filed by respondent No.1 was barred on account of non-issuance of statutory notice".

2. Respondent No.1 had filed the suit for declaration that the suit land was of his ownership and possession and the action of the appellant of removing the construction on the suit land was illegal and for permanent injunction restraining the appellant and other authorities from obstructing respondent No.1 from cultivating the land and enjoyment thereof.

3. The above suit was resisted by the appellant stating that respondent No.1 had no right and title to the suit property, that he had encroached upon the property and he had no right to remain on the suit property. Learned Trial Judge, on appreciation of the evidence available on record, came to the conclusion that respondent No.1 was not owner of the suit and therefore, he was not entitled to any relief in the suit and ultimately the suit was dismissed by the judgment and decree dated 5.3.2010.

4. The above said judgment and decree of the learned Trial Judge was challenged by respondent No.1 by filing Regular Civil Appeal before the learned Appellate Judge. Learned Appellate Judge did not decide any of the issues as regards the right, title and interest of the parties to the suit property but formed an opinion that the learned Trial Judge did not raise important issue as to whether the suit was barred because of non service of the statutory notice by respondent No.1 before filing the suit. The learned Appellate Judge observed that none of the parties had raised such issue before the learned Trial Judge as the same was not found from the judgment and decree passed by the learned Trial Judge. The learned Appellate Judge, therefore, formulated the above-said issue and remanded the entire matter to the Trial Court by quashing and setting aside the judgment and decree passed by the learned Trial Judge. It is this judgment and order which is under challenge in this Second Appeal.

5. It is found from the record that this Court on 11.6.2010 passed the following order:-

"1. Following substantial questions of law arise for determination in the present second appeal:

(i) Whether in the facts and circumstances of the case, learned Appellate Court was justified in remanding the matter solely on the ground that learned Trial Court has not framed issue with respect to statutory notice in the appeal preferred by the original plaintiff dismissing the suit?

(ii) Whether in the facts and circumstances of the case, learned Appellate Court was justified in remanding the matter solely on one issue and not deciding other issues in appeal more particularly in the appeal preferred by the original plaintiff dismissing the suit? Notice for final disposal returnable on 27th June,2012. Direct service is permitted."

6. In response to the notice issued by this Court, other side appeared and took preliminary objection about maintainability of the Second Appeal, which is found noted in the subsequent order dated 27.6.2012 passed by this Court. The same is reproduced as under:

"A preliminary objection is raised by Mr. S.M. Shah, learned advocate appearing on behalf of respondent No.1 with respect to maintainability of present second appeal by submitting that against the impugned order passed by learned Appellate Court under Order 41 Rule 96 of the Code of Civil Procedure, the present second appeal is not maintainable. The same is required to be considered in detail. Hence, S.O. to 9th Jul