Utpalendu Bikas Saha, J.

1. Challenge in this appeal under Clause (u) of Rule 1 of Order XLI of the Code of Civil Procedure (for short, the 'Code') is to the order passed by the learned Addl. District Judge, Kailashahar, North Tripura in Money Appeal No. 01 of 2006 whereby and whereunder the learned Addl. District Judge, Kailashahar by the Judgment dated 27-6-2006 allowed the appeal of the respondent setting aside the judgment dated 23-12-2005 passed by the learned Court of Civil Judge (Sr. Division) in MS 08 of 1988 by which the aforesaid suit was dismissed as not maintainable and was remitted to the learned trial Judge, the learned Court of Civil Judge (Sr. Division) for disposal of the same in accordance with law.

2. Facts required to be discussed for disposal of the instant appeal in a nut-shell are as follows:

The respondents as plaintiffs filed a suit bearing No. MS 08/1988 in the Court of the learned Civil Judge (Sr. Division), Kailashahar, North Tripura for mesne profit. The case of the respondents before the learned Civil Judge (Sr. Division) was that they initially filed a case against the appellant-defendants for cancellation of one Nadabi executed by one Nani Gopal Ghosh in favour of the appellant No. 1 and others. In the said suit, the respondents also prayed for declaration of a title and recovery of the possession in respect of the land described in Schedules A and B of the plaint. The aforesaid suit was filed initially before the learned Subordinate Judge, West Tripura, Agartala, as T.S. No. 30 of 1973 and thereafter the same was transferred to the Court of Subordinate Judge, North Tripura, Kailashahar which was re-numbered as T.S. No. 12 of 1976. Subsequently, the said case No. T.S. 12 of 1976 was again transferred to the Court of learned District Judge. North Tripura, which was again re-numbered as T.S. No. 01 of 1988. On contusion of the trial, the learned District Judge, North Tripura, Kailashahar vide his judgment dated 31-8-1988 decreed the suit in favour of the respondent-plaintiffs. The defendant appellants filed an appeal against the aforesaid judgment of the learned District Judge, North Tripura, Kailashahar before this Court and this Court vide its judgment dated 1-8-1997 in First Appeal No. 17 of 1988 upheld the judgment of the learned District Judge, North Tripura, Kailashahar as in the aforesaid T.S. No. 01 of 1988 the title of the respondent-plaintiffs was declared and the possession of the defendant-appellants on the suit land found to be wrongful. The plaintiffs brought the suit In question for claiming mesne profit.

3. Learned Civil Judge, Senior Division (trial Court) vide its order dated 14-9-1999 framed two issues for decision of the case which are as follows:

(i) whether the plaintiffs are entitled to get the mesne profit as prayed for;

(ii) Are the parties entitled to get any other relief/costs.

4. By orders dated 4-8-2004 and 2-2-2005 the learned trial Court decided to hear the parties on the issue of maintainability of the suit. Accordingly, the learned Trial Court heard the rival contentions of the parties and vide his judgment dated 23-12-2005 held that the suit filed by the respondent-plaintiffs was not maintainable in view of the provisions of Order II, Rule 2(3) of the Code. The aforesaid judgment of the learned Civil Judge was challenged by the respondent-appellants by an appeal before the learned District Judge, North Tripura, Kailashahar which was subsequently transferred to the learned Addl. District Judge, North Tripura, Kailashahar. Learned Addl. District Judge, North Tripura, Kailashahar upon hearing the learned Counsel for the parties set aside the judgment of the learned Civil Judge, dated 23-12-2005 in M.S. No. 08 of 1988 and remitted the same to the learned Trial Court for disposal of the same in accordance with law. In the instant appeal the said judgment of the learned Addl. Judge is impugned.

5. Heard Mr. S. Deb, learned senior counsel assisted by Mr. S. Choudhury, le