Mr. Raj Mohan Singh, J.: (Oral) - Defendants have directed this present appeal against the judgment dated 30.04.2012 vide which the case has been remanded to the trial Court after allowing an application under Order 6 Rule 17 CPC filed by plaintiffs. The trial Court has been directed to decide the suit preferably within 6 months from the date of receipt of the record.

2. Plaintiffs filed suit for declaration to the effect that transfer deed dated 25.11.2008 executed by Tej Kaur in favour of his sons Modan Singh and Resham Singh in respect of 34 kanals, 3 marlas of land to be illegal, null and void.

3. Plaintiffs alleged that plaintiffs and defendants No.1 to 4 constituted a Joint Hindu Family. Tej Kaur-defendant No.1 is mother-in-law of plaintiff No.1 and grand-mother of plaintiffs No.2 to 4. Lakha Singh was son of defendant No.1. Defendants No.2 and 3 are real sons of defendant No.1 and brothers of deceased Lakha Singh. Will was executed by Jangir Singh in favour of his wife Tej Kaur and three sons Lakha Singh, Modan Singh and Resham Singh vide registered Will dated 16.04.1980. After registration of aforesaid Will, mutation was also sanctioned and Lakha Singh died thereafter. Mother of Lakha Singh i.e. defendant No.1 inherited 1/5th share of Lakha Singh thereafter she transferred entire share which received by way of Will dated 16.04.1980 in favour of his two sons namely Modan Singh and Resham Singh. Plaintiff being widow of Lakha Singh challenged the transfer deed dated 25.11.2008 executed by defendant No.1 in favour of defendants No.2 and 3 in respect of property which she received by means of aforesaid Will. Defendants contested the suit on number of grounds.

4. From the pleadings of the parties, following issues were framed by the trial Court:-

“1. Whether the transfer deed by defendant No.1 in favour of defendants No.2 and 3 regarding suit property is illegal, null and void and is liable to be set aside? OPP

2. Whether plaintiffs are entitled to the relief of declaration as prayed for? OPP

3. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP

4. Whether the plaintiffs have concealed the material facts from the Court? OPD

5. Whether suit of the plaintiffs is maintainable in the present form? OPP

6. Relief.”

5. To prove their case, one of the plaintiff Mohinder Kaur herself appeared as PW 1 and got examined Gurjant Singh Nambardar as PW2. Thereafter plaintiffs failed to conclude their evidence and consequently evidence of the plaintiffs was closed by order of the Court on 25.02.2010. Defendants in their evidence got examined Modan Singh as DW 1, Gurtej Singh as DW2 besides examining scribe of the transfer deed namely B.R. Bansal as DW 3 and thereafter, closed the evidence.

6. Trial Court dismissed the suit vide judgment and decree dated 02.11.2010. Plaintiffs went in appeal before the lower Appellate Court. On coming to know the factum of recital of Will they sought amendment of the pleadings in terms of Order 6 Rule 17 CPC on the ground that in the Will itself Tej Kaur was conferred with only lifetime interest. Therefore, she was not competent to part with the property by way of transfer deed dated 25.11.2008. Since the plaintiffs were also entitled to property which was subject matter of Will in view of creation of only lifetime interest in favour of defendant No.1, therefore, the issue requires to be debated with reference to evidence on record. The Lower Appellate Court allowed the application for amendment of the plaint and remanded the case back to the trial Court after setting aside the impugned judgment and decree.

7. Learned counsel for the appellants contends that since remand has been made after acceptance of application under Order 6 Rule 17 CPC, therefore, remand falls under the category of Order 41 Rule 23-A CPC and for that findings recorded under all the issues should have been set aside by the lower Appellate Court. The lower Appellate Court has partly acc