IMPORTANT POINT
The main legal point established in the judgment is that the appellate court should decide the appeal on the basis of the materials available on record, without remanding the case back to the trial court by framing an additional issue.

JUDGMENT :

Both the appeals are taken up together for disposal taking into account that both the appeal arises out of an order dated 18.05.2013 passed in Title Appeal No.32/2011 whereby the learned First Appellate Court i.e. the Court of the learned Civil Judge, Dibrugarh had remanded the suit back to the learned Trial Court in exercise of powers under Order XLI Rule 23A of the Code of Civil Procedure, 1908 (for short “the Code”) by formulating an additional issue.

2. The question therefore arises before this Court is as to whether the learned First Appellate Court has shirked its responsibility in deciding the appeal and the order so passed is contrary to the provisions of Order XLI Rule 24 of the Code.

3. I have heard Mrs. R. Devi, the learned counsel appearing on behalf Appellants in SAO No.6/2013 and Mr. S. P. Roy, the learned counsel appearing on behalf of the Appellants in SAO No.2/2014. The said counsels duly represents their respective Appellants who are the Respondents in those appeals.

4. The brief facts leading to the filing of these two appeals are that the Appellants in SAO No.2/2014 as plaintiffs had instituted a suit being Title Suit No.10/2008 seeking declaration that they had got right, title and interest over the suit land being the absolute owner and in possession for the last 5 (five) decades; for declaration that the order dated 09.12.1969 passed by the S.D.C., Dibugarh, East Circle, Dibrugarh in Mutation Case No.42/1969-70 mutating the name of Late Bhagawati Prasad Das in respect to the suit land is void, illegal and inoperative in law and deletion of the names of the defendants and their mother from any records available in the Office of the Deputy Commissioner, Dibrugarh; for declaration that the order 11.09.1970 passed by the learned Additional Deputy Commissioner, Dibrugarh in Mutation Case No.37/1969-70 and also giving separate patta being P.P. No.71 in favour of Late Bhagawati Prasad Das is void, illegal and inoperative in law and deletion of his heirs name from any records available in the Office of the Deputy Commissioner, Dibrugarh; for declaration that the order dated 19.09.1997 passed by the S.D.C., Dibrugarah, West Circle, in M.C. Case No.87/1997 granting mutation in the name of the defendants and their mother is void, illegal and inoperative in law; for declaration that the notice of demarcation issued by the Circle Officer, Dibrugarh East/West Circle in Demarcation Case No.DEC/D/54/2004-05 to the Plaintiff No.1 is void, illegal and inoperative in law and not binding and for perpetual injunction restraining the defendants from trespassing over any portion of the suit land and from disturbing the peaceful possession and enjoyment of the suit land by the plaintiffs.

5. The Defendants jointly filed a written statement cum counter claim denying the case of the Plaintiffs and further claiming the declaration that the Defendants have right, title and interest over the land measuring 0 Bigha 2 Kathas 4 Lechas of Periodic Patta No.71 covered by Dag No.94 of Tinkunia Ward of Dibrugarh Mouza, District Dibrugarh; for khas possession of the suit land as described in the Schedule of the written statement cum counter claim by evicting the plaintiffs, their men, women, representatives, etc; for permanent injunction restraining the plaintiffs, their men, women, representatives, from making any alteration, repairing renovations, new constructions over the suit land and from making any Deed of Conveyance involving the suit land and premises and from doing any act prejudicial to the nature etc.

6. On the basis of the pleadings filed by the plaintiffs as well as the Defendants, the learned Trial Court framed as many as 7 issues which being relevant for the purpose of the adjudication of the instant appeal are reproduced herein under:

“(1) Whether the suit as well as the counter claim is maintainable?

1.(A) Whether the suit is barred by limitation?

(2) Whether there is cause of action for the suit and counter cla