P. Joseph, J.

This appeal is admitted on the following substantial questions of law:

1) When as per Ext.C2(a), survey plan submitted by the Advocate Commissioner, eastern boundary of the plaint schedule property is along `EKF' line which is also along the natural boundar' signified by the existence of anjili trees and the plaintiff did not seek Ext.C2(a), plan to be set aside either before the trial court or before the lower appellate court, was the lower appellate court justified in remanding the case to the trial court to enable the plaintiff to amend the plaint and seek a declaration of title and recovery of possession?

2) When even the plaintiff did not file any application for amendment of the plaint, was the lower appellate court right in setting aside judgment and decree passed by the trial court and remanding the case to the trial court to enable the plaintiff convert the suit into one for declaration of title, recovery of possession etc.?

3) When there has already been a trial on evidence before the court of first instance, was the appellate court right in exercising its power under Order 41, Rule 23 of the Code of Civil Procedure, (for short "the Code") in View of the decisions in India Army and Police Equipment v. Kanodia Brothers (1968 KLT SN 19 (Supreme Court), and Sekharan Nambiar v. Ramunni Nambiar (1992 (1) KLT 429), merely because that court was of the view that the plaintiff who could lead better evidence had failed to do so or had failed to institute a more comprehensive suit?

2. This appeal arises from the judgment dated 13.02.2009 in AS. No. 297 of 2007 of the Additional District Court, Kottayam setting aside judgment and decree dated 14.06.2007 in O.S. No. 156 of 2005 of the Munsiff's Court, Ettumanoor.

3. Respondent/plaintiff sued for fixation of eastern boundary of the suit property and for prohibitory injunction. She claimed that the suit property, described as 30.75 cents in old survey No. 76/26/1 and 76/26/2 of Perumpaikkadu village belongs to and is in her possession as per Ext. Al, settlement deed of the year, 1980. She alleged that at the time of the said settlement deed and thereafter, there was a fixed boundary on the eastern side of the suit property. Property on the further east, 10 cents in re-survey No. 572/37-34 of the same village belongs to the appellant. The respondent alleged that while constructing building in the said 10 cents the appellant demolished eastern boundary of the suit property. Hence the suit.

4. The appellant claimed that he is the owner in possession 10 cents in re-survey No. 572/37-34 as per Ext.B 1, settlement deed executed by his mother who got the said property as per a gift deed No. 1208 of 1957 executed by predecessor-in-interest of the respondent. He denied the allegation of demolition of eastern boundary of the suit property.

5. The trial court appointed an Advocate Commissioner to measure property of the appellant and the respondent. Exts. C I and C 1(a) are the report and plan obtained after measurement as per the documents of title while Exts. C2 and C2(a) are those obtained after measurement based on re-survey records. The trial court preferred Exts. C2 and C2(a) to Exts. C 1 and C 1(a) and passed a decree for fixation of boundary. Aggrieved, the respondent preferred A.S. No. 297 of 2007. Learned Additional District Judge noticed that the respondent had, during the pendency of the suit filed an unstamped application - I.A No. 855 of 2006 for amendment of plaint to incorporate a prayer for mandatory injunction to direct the appellant demolish a portion of the building constructed by him (allegedly) encroaching into the suit property belonging to the respondent. Bu`, the trial court had not disposed of the said application before disposal of the suit. The lower appellate court made certain observations concerning the scope of a suit for fixation of boundary. Judgement and decree were set aside and the suit were remitted to that court for fresh decision with a