N. Seshasayee, J.

This Civil Miscellaneous Appeal is preferred against the order of remand made by the learned Sub-ordinate Judge, Gingee dated 29.06.2009 made in A.S. No. 30 of 2006 reversing the decree/judgment in O.S. No. 551 of 1998 dated 30.06.2005 on the file of the Additional District Munsif Court, Gingee.

2. The defendant in O.S. No.551 of 1998 on the file of the Additional District Munsif Court, Gingee/the respondent in A.S. No.30 of 2006 on the file of the Sub-ordinate Judge, Gingee, has come forward with this miscellaneous Appeal, challenging the order of the First Appellate Court remanding the matter back to the Trial Court. The parties would be referred to as per their rank before the Trial Court for narrative convenience.

3. The plaintiff has filed a suit for declaration of title and for recovery of possession with mesne profits. She would allege in her plaint that the suit property originally belonged to her husband Kuppusamygounder, that he had obtained the same partly by inheritance and partly by purchase from one of his co-sharers, that he had settled the property on the plaintiff on 10-08-1973 under a registered deed of settlement and ever since she was in possession and enjoyment of the property. Be that as it may, some dispute arose between the plaintiff and her husband and taking advantage of the same the defendant encroached upon the suit property and hence had laid the suit.

4. Admitting that the suit property as belonging to the plaintiff's husband Kuppusamygounder as well as the mode his acquisition of title over the same, the defendant in his written statement contended that Kuppusamygounder had not executed any settlement deed as alleged by the plaintiff, that the plaintiff was not in enjoyment of the same and that the property was in fact in the possession of Kuppusamygounder and his sons. While so, on 02-01-1998, Kuppusamygounder and his sons had sold the suit property to the defendant. Since the date of purchase, the defendant has been in peaceful possession of the suit property.

5. The Trial Court, Vide its judgment dated 30-06-2005, dismissed the suit. It is relevant here to mention that during the pendency of the suit, on 21-08-2000, plaintiff, her husband and their sons had executed a sale deed in favour of one Manikandan, a minor at the time of the said sale. This document was marked as Ext.B-5 before the Trial Court. Yet another fact that is required to be mentioned is that before the Trial Court, defendant had examined himself in-chief as DW-1, but despite granting several adjournments for his cross-examination, the plaintiff did not cross-examine the defendant.

6. It is in this setting, the trial Court proceeded to deliver its judgment. In the context of the judgment a fact that requires some attention is that the issues in the case were originally settled on 30.06.2005 and the same were re-cast when judgment was delivered. Inasmuch as the defendant denied the plaintiff's assertion of deriving title under a settlement deed dated 10-08-1973, the trial Court, at the first instance, framed inter alia the following two issues:-

"1. Whether the plaintiff's husband Kuppusamy Gounder executed a settlement deed dated 10-08-1973 with respect to suit property in favour of his wife?"

2. Whether the suit property belongs to the plaintiff?"

When the issues were recast while delivering judgment, the above mentioned two issues which are pertinent in a suit for declaration of title, were deleted and instead the following issue was framed as the first issue:-

"Whether the plaintiff is in possession and enjoyment of a suit property?

7. As earlier indicated, the trial Court dismissed the suit and in arriving at its conclusion it believed the validity of the sale deed under which the defendant claimed title. Here, the trial Court spotlighted more on plaintiff's failure to cross-examine DW-1, the defendant. It also relied on Ext.B-5, under which the plaintiff, her husband and children have sold the property to