An appellate court's order of remand must not introduce new issues not raised by the parties and should only be issued when necessary for justice, adhering to existing pleadings and evidence.

ORDER :

GAUTAM KUMAR CHOUDHARY, J.

1. The instant appeal is against the order of remand passed by the learned first appellate court.

2. Plaintiff’s suit for partition of his 5/ 6^th share in Schedules-A, B and C property was decreed by the learned trial court.

3. Both the plaintiff and defendants preferred Title (Partition) Appeal No. 23/2007 and Title (Partition) Appeal No. 24/2007. The plaintiff was aggrieved by apportionment of share as half in the schedule property, whereas the defendants, who are appellants in Title (Partition) Appeal No. 24/2007, were aggrieved as they claimed 1/ 6^th share in the suit property and further the plaintiff had no share in the said property which exclusively belongs to Ludhu Mandal and presently to defendant nos. 1 and 2.

4. The First Appellate Court did not frame any issue(s) for determination and the judgment and decree was set aside and the order of remand was passed on the ground that the plaintiff had not brought the entire joint family property in the schedule of the plaint. The plaintiff was directed to amend his pleading by incorporating and the entire joint family property either sold or still possessed by the parties in the hotchpotch of partition and to file additional documents and to lead further evidence in support of the amended pleadings.

5. The order has been impugned by the plaintiff-appellant on the ground that the First Appellate Court made out a case of its own by holding that there was some joint family property which were left out or yet to be partitioned. This was something which was beyond the pleadings of either the plaintiff or the defendants. What was the property left out was also not been stated in the judgment.

6. It is argued by learned counsel for the appellant that the suits are to be decided on the basis of the pleadings of the parties and the evidence on record and not on hypothetical issues which are not there. It is further argued that if any property was left out, then the plaintiff would suffer and cannot claim any right over it in view of Order 2 Rule 2 of CPC.

7. It is further argued that the learned First Appellate Court has recorded a finding in Paras 13 & 14 that the plaintiff(s) remained in possession of various joint family property and sold certain part of the same which was adduced into evidence on behalf of defendant(s) as Ext.B which is with respect to Sale-deed dated 24.06.1970 by which, plaintiff(s)’ mother, Gulabi Mandalain sold some part of the joint property. A specific reference is made to the judgment of the learned Trial Court wherein these issues have been considered and negated by the learned Trial Court.

8. The plea of previous partition has been denied and also a finding has been recorded with respect to Ext.7 that the sale-deed was a self-acquired property of Ludhu Mandal alone which was sold by one Rashmi Mandalain. Thus, there was no pleading or evidence in support of the partition and, therefore, the learned First Appellate Court could not have made out a new case and without framing any issue, remanded the case to the Trial Court for adjudication afresh.Reliance in this regard is placed on (2016)10 SCC 315.

9. It is further submitted by learned counsel for the appellants that in this case earlier an order of stay was passed vide order dated 05.02.2016, but despite the order of stay and in view of the ratio laid down by Hon’ble the Supreme Court in the case of Asian Resurfacing Of Road Agency P. Ltd. vs Central Bureau Of Investigation, reported in 2018 (16) SCC 299, the learned Trial Court proceeded with the suit and finally disposed of, the suit whereby and whereunder the suit has been decreed again with respect to the same property i.e. Schedule A, B & C.

10. It is argued that since the decree passed after the remand, the judgment and decree passed pursuant to the order of remand is dependent on the order passed by the learned First Appellate Court which was under challenge before this Court, and, therefore, it will depend on the final