1. Whether an appeal lies against an order of Appellate Court passed under Order 41 Rule 23 or 23-A C.P.C. for remanding a case for re-trial to the Trial Court after setting aside its decree, as a matter of right on a question of fact as well as question of law? is the vital question involved in this case.

2. The defendant-appellant has filed this Civil Second Appeal against the judgment of learned 2nd Addl.District Judge Jammu dated 30.4.2005 whereby the learned District Judge has set aside the judgment and decree of the trial court dated 22.1.2003 and remanded the suit back for re-trial after framing issues afresh as per pleadings of the parties. Since the Ist Appellate Court has not dismissed or decreed the suit of the plaintiff its judgment cannot be treated as decree and therefore civil second appeal u/s 100 CPC does not lie. Faced with such situation learned counsel for the appellant submits that his appeal be treated to be an appeal under Order 43 Rule 1(u) CPC and he submits that the appeal is maintainable under the said provision of law as a matter of right.

3. The facts of the case briefly stated are that plaintiff-respondent herein filed a civil suit against the defendant-appellant for permanent prohibitory injunction for restraining him from taking compensation of the suit land from the army on the allegation that he was in possession of the land in question as a tenant under the defendant at a monthly rental of Rs.200/- since 1969; that in view of the provisions of Agrarian Reforms Act the defendant could not have got back the possession of the said land from him so he agreed to sell the land to him for a consideration of Rs.5000/; the plaintiff paid Rs.900/- as part consideration to him in the year 1971 and rest of the amount on 6.2.1979. It is also the case of the plaintiff that the defendant executed an agreement to sell in his favour in which he has admitted the possession of the plaintiff over the suit land. Further case of the plaintiff is that in December 1992 the army took the land in question under Requisition and Acquisition of Immovable Property Act from the plaintiff so he is entitled to receive compensation from the army.

4. The case of the defendant as set up by him in the written statement is that he is owner of the land and defendant is not in possession of the same. The land was taken by the army in the year 1968 and thereafter he received compensation but payment came to be stopped because of litigation between the parties. He has however admitted that he had executed an agreement to sell in favour of the plaintiff and received Rs.900/- but had refused to execute the sale deed when he came to know that the plaintiff intended to grab whole of his land. The defendant has also questioned the maintainability of the suit and sufficiency of court fee on the plaint.

5. On the pleadings of the parties the trial court framed the following issues for determination:-

1- Whether the plaintiff is in possession of the bland measuring 10- kanal and 15 marlas situate in village Manda Tehsil Akhnoor and defendant are trying to take compensation of the same without any right? OPP

2- Whether this court has no jurisdiction to try the present suit?OPD

3- Whether the valuation for court fee is not properly fixed and the suit deserves to be dismissed?OPD

4- Relief.

6. After putting the parties to evidence for and against the proof of issues learned trial court vide judgment dated 22.1.2002 decided issue No.1 against the plaintiff holding that he is not in possession of the land as the land admittedly is in possession of the army. By an agreement to sell no charge in his favour can be created. While deciding issue No.2 the trial court held that the suit on the basis of agreement to sell was not maintainable. Issue No.3 has been decided in favour of the plaintiff. In view of the findings returned on issue Nos. 1&2 the trial court dismissed the suit of the plaintiff.

The Ist Appellate Court has set aside the decree of dismissal of

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