IMPORTANT POINT
A remand order by an appellate court does not constitute a decree, and an appeal against such an order is not maintainable unless it raises a substantial question of law.

JUDGMENT :

Puneet Gupta, J.

(Through Virtual Mode Srinagar)

1. The present Civil first Miscellaneous Appeal is filed by the appellants against the judgment passed by the Court of learned Additional District Judge, Jammu, whereby the appellate court set-aside the judgment and decree passed by the trial Court and remanded the case back to the trial Court for deciding the issue No. 3 along with other issues after taking evidence. The appellants herein were defendants before the trial Court. The respondent-plaintiff is represented through his counsel.

2. Mr. V.R. Wazir, learned senior counsel appearing on behalf of respondent-herein had raised a preliminary issue of the maintainability of the present appeal. The learned senior counsel has submitted that the present appeal is misconceived as only Civil Second Appeal on substantial question of law could be filed as the judgment of the appellate court is passed in the First Appeal filed against the judgment and decree passed by the trial Court.

3. Mr. R.A. Jan, learned senior counsel appearing for the appellants has contested the argument of respondent by submitting that the present appeal is maintainable for the reason that the appellate court has only remanded the matter back to the trial Court and has not otherwise decided the appeal which can be said to be judgment and decree in terms of Order 41 Civil Procedure Code though the appellate court has directed for preparation of decree sheet in the appeal.

4. The argument of learned counsel for the respondent herein need not detain this Court for long as the reply to the issue of maintainability raised by the respondent gets answered by the judgment passed by this Court in the case titled Bindroo v. Badri Nath reported in AIR 2006 J&K 36. In this case the appellate court had remanded the suit back for retrial after framing the issues afresh as per the pleadings of the party. This court held that the judgment of the First Appellate Court cannot be treated as decree and, therefore, the Civil Second Appeal in terms of Section 100 Civil Procedure Code does not lie. The court also held that the appeal filed against the remand order passed in appeal will not lie as a matter of right unless it raises question of law as is enumerated in Section 100 CPC. Thus, the argument raised by the respondent herein that the appeal itself is not maintainable as Second Appeal is only maintainable in the present case against the judgment passed by the First Appellate Court is without any force.

5. The court has yet to determine whether any substantial question of law arises, which may persuade this court to set-aside the remand order passed by the First Appellate Court.

6. The factual aspects of the case, in short, are required to be detailed out before the present appeal is finally decided. The respondent-plaintiff filed a suit with the averments that he is in possession of the land measuring 33 Kanals and 5 Marlas falling under Khasra No. 831 situate at Chowadi Tehsil, Jammu, which came into his possession by way of Settlement Deed executed between Vijay Kumar S/o Krishan Lal. The defendants are interfering with the land of the plaintiff, which is adjacent to the land of the defendants, which they claim to have purchased to the extent of 3 Kanals and 5 Marlas but falling under Khasra No. 941. As the defendants are interfering into the suit land and intend to forcefully disturb the plaintiff from his land, they should be restrained from interfering in the land possessed by the plaintiff. The defendants appeared before the trial Court and filed the written statement. In their statement, the defendants stated their possession in 3 Kanals and 5 Marlas of land and denied the contention of the plaintiff that they were interfering with the plaintiff's land. It appears that during the pendency of the suit before the trial Court an order was passed by the trial Court whereby the application filed by the defendants for the appointment of Commissioner for local investigati