The appellate court must properly assess the evidence before remanding a case, and misuse of the power of remand may lead to the appeal being allowed.

S. C. MOHAPATRA, J.

( 1 ) THIS appeal under O. 43, R. 1 (u), C. P. C. , arises out of an order of remand of the suit by the appellate court to the trial court.

( 2 ) THE suit relates to a piece of land locally named 'burakuti Bandha'. The defendant having claimed the land to be his, the suit has been filed by the villagers purporting to be one under O. 1, R. 8, C. P. C. , for permanently restraining the defendant from interfering with the suit land. The case of the defendant is that he has acquired title by adverse possession over the suit land of which he is in possession and enjoyment.

( 3 ) NINE issues were framed of which issues 7 and 8 are :"7. Has the defendant perfected his title over the suit land by way of adverse possession? 8. Is the suit land communal in nature?"

( 4 ) THE trial court held in answering issue 7 that the defendant is in possession of the suit land for more than thirty years. In answer to issue 8 the trial court held that the suit land is used for communal purpose of using the water of the tank for bathing, drinking and cultivation. On these findings the trial court having permanently restrained the defendant from interfering with the suit land in any manner, the defendant preferred an appeal.

( 5 ) THE appellate court having vacated the decree and remitted the suit back for hearing on the ground that the question whether plot No. 290 is a part and parcel of plot No. 291 can only be decided by sending a survey knowing commissioner for local inspection and any amount of oral evidence would not help the Court to come to a just conclusion. The appellate Court felt that the prayer portion of the plaint needs to be amended to incorporate the specific case of the plaintiffs as otherwise it would create difficulties in framing the decree. The appellate court did not express any opinion on the other issues.

( 6 ) PLAINTIFFS are aggrieved by the aforesaid open remand. Mr. R. K. Mohapatra, the learned counsel for the plaintiffs-appellants, submitted that the order of open remand is not sustainable in the facts and circumstances of this case.

( 7 ) WHEN the plaintiffs claim right over the entire suit land, the defendant claims adverse possession over the same. Right over a portion of the land or different right over different portions has not been claimed by either party. The parties being conscious of the issues led evidence. Neither party requested for the assistance of the Court for issue of a survey knowing commissioner to demarcate the disputed land. The learned counsel for the defendant-respondent 1 could not bring any material for an open remand.

( 8 ) ORDER 41, R. 23, C. P. C. , provides for remand by the appellate court where the trial court disposed of a suit on a preliminary issue. Order 41, R. 25, C. P. C. , authorises remand on specific issue only where the finding on the issue is to be returned to the appellate court for disposal. Order 41, R. 23a, C. P. C. , envisages remand after reversal of a decree by the appellate court. Where the appellate court clearly expresses :". . . . . THEREFORE without expressing any opinion on the evidence adduced by the parties, on the different issues framed in the suit, I am inclined to send back the record to the lower Court for fresh disposal in the light of the observations made above. . . . . . . "it is not reversal of a decree merely because the decree is set aside. The appellate court is required first to make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial. It should be remembered that early conclusion of a 'lis' on merit is the public policy. In the name of 'ends of justice' or 'proper adjudication' the appellate court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate court has failed to exercise the appellate power in this case. I may not be understood to expres