An order of remand under Order XLI, Rule 23, C.P.C. is not justified merely to fill up a lacuna in a case or to allow a party to adduce additional evidence. The appellate court must first consider the evidence on record and arrive at a conclusion that the trial court's finding is liable to be set aside.

This appeal is directed against the order of remand passed by the learned Subordinate Judge, Srivilliputtur. The facts which are necessary for the disposal of this appeal are briefly stated as follows :

The appellant herein filed the suit, O. S. 354 of 1983, for the relief of permanent injunction restraining the defendants from interfering with his possession and enjoyment of the plaint schedule properties. The plaint schedule properties consist of two items, viz., Item A and Item B. Item A is a punja land in survey No. 667/4, measuring 1-15 acres in Villupanur village bearing patta No. 369. Item B is also a punja land in survey No.666/3 measuring 7 cents in the same village bearing the same patta number. It is the case of the plaintiff that he purchased the plaint schedule. Item A under registered sale deed dated 9-4-1968 and Item B under registered sale deed dated 23-8-1969. According to the plaintiff, there is no detailed channel running along the plaint schedule Items A and B, but the Tahsildar, Srivilliputtur, sent a notice under the Land Encroachment Act that the plaintiff encroached 0.88 cents by destroying the channel and annexing the same to his patta lands. It is further stated by the plaintiffs that the defendants proclaimed that there is a detailed odai along the plaint schedule properties and that the defendants are entitled to use it as a cart track. Hence, the plaintiff filed the suit for the relief of permanent injunction.

2-3. The said suit was resisted by the respondent-defendants and in the written statement filed they averred as follows. There is a detailed odai which runs through the plaint schedule properties, which starts from S.Nos. 665, 666, 667, 670 and 677 and other several survey numbers and which finally falls in Villupanur big tank in S.No. 704. Even in the Government register the S.No. 667/4 is shown as odai poromboke. The plaintiff destroyed the detailed odai and started cultivating the same after annexing it to his land. It is because of this the Tahsildar of Srivilliputtur sent a notice under the Land Encroachment Act. The detailed odai was used for running water and also for having the same as cart track to reach their lands. There is no other cart track to reach their lands except the suit detailed channel. It is also contended by the defendants that the suit is bad for non- joinder of necessary parties since the Government is not made a party to the suit. Hence the defendants prayed for the dismissal of the suit.

4. The learned Principal District Munsif of Srivilliputtur framed the following three issues -

1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

2. Whether the suit is bad for non-joinder of necessary parties?

3. To what relief the plaintiff is entitled?

An additional issue was framed as follows :-

"Whether the defendants are entitled to an easementary right as contended by them?

The plaintiff examined himself as P.W. 1 and also another witness P.W. 2 and he filed Exs. P. 1 to P. 10. On the side of the defendants three witnesses D.Ws. 1 to 3 were examined of which D.W. 1 is the first defendant and Ex. B 1 was filed. The learned District Munsif decreed the suit as prayed for. The aggrieved defendant took the matter on appeal and the appellate court by its judgment dated 16-4-1987, which is now challenged in this second appeal, remanded the matter to the trial court for the reasons stated in paragraph 8 of its judgment.

5. Learned counsel for the appellant would submit that the order of remand is unsustainable, since the Court below proceeded to dispose of the appeal only on the sole point whether the suit is a fit case for remand to the lower court. Moreover, the reasons given for ordering remand are that the defendants wanted to file certain documents as additional evidence, that the Government was not added as a party and that no Commissioner was appointed and to enable the defendants to prove the documents filed by them and the said reaso