Point of Law : order 41 Rule 23 A C.PC. also provides that if the suit is decided otherwise on preliminary point and decree reversed in appeal and retrial is necessary the appellate court have the same powers as it has under Rule 23.

JUDGMENT :

1. This First Appeal From Order has been filed against the judgment and order dated 6.12.2007 passed by the First Appellate Court of Additional district Judge, Court No. 9/Special Judge, E.C. Act, Shahjahanpur in Civil Appeal No. 25 of 2003 Raj Kumar and another Vs. Rajeshwar and others.

2. The first appeal was filed against the judgment and final decree dated 31.5.2003 passed in Original Suit No. 373 of 1979 Ram Kumar Vs. Rajeshwar by the Court of Civil Judge (Sr. Div.), Shahjahanpur.

3. The trial court in the proceeding of final decree of O.S. No. 373 of 1979 in compliance of the judgment and order of the First Appellate Court dated 19.9.2001 by which the matter was remanded to the trial court with the observation that the trial court shall make valuation of the share of defendants in such manner as he thinks fit and directed the sale of share to such defendants-appellants and make a necessary and proper directions in that behalf as envisaged under section 4 of the Partition Act, issued a commission to assess the valuation and on the basis of commission report has determined the value of the half share of the plaintiff as Rs. 1,74,000/-and further ordered defendant to deposit the amount within two months for execution of sale deed.

4. Learned counsel for the appellant mainly contended that the appellate court can remand the matter only according to provision of Order 41 Rule 23 and Rule 25 of the C.P.C. The conditions of aforesaid provisions are not fulfilled in the present matter and hence, the first appellate court should not have remanded the matter but instead himself has decided the points involved after taking evidence. Learned counsel further contended that first appellant court has all the powers of taking additional evidence and the first appellate court should have exercised that power and after taking additional evidence should have decided the matter finally. The first appellate court has failed to exercise the jurisdiction vested in it and hence, the impugned order is not sustainable .

5. Learned counsel for the appellant placed reliance on the judgment in the case of Ram Bali Singhand others Vs. Ram Sakal (F.A.F.O. No. 560 of 1989-Decided on March 13, 1989) and Chaturghun Vs. Dhanpati Rai and others [2007 (69) ALR 861].

6. On the other hand; learned counsel for the respondents contended that the Amin report on the basis of which the trial court has fixed the valuation was objected by the plaintiff-appellant himself before the trial court. In his objection he has disputed the market value of the land as well as the constructions thereupon. Learned counsel further contended that it is not function of the appellate court to decide objections against Amin Report. The factual aspect as taken in para 5 of the aforesaid objections can only be determined by the trial court. Learned counsel for the appellant further contended that Under Order 41 Rule 24 C.P.C. the appellate court may after resettling the issue if necessary finally determined the suit if the evidence upon the record is sufficient to enable the appellate court to pronounce the judgment. There is no sufficient evidence on record to enable the appellate court to pronounce the judgment, hence, the first appellate court has rightly remanded the matter to the trial court for taking necessary evidence to determine the points in issue. The order of the first appellate court is just and proper and appeal has no merits.

7. By the impugned order the first appellate court has remanded the matter with a direction to the trial court to issue additional commission for assessing the value of the construction after deducting depreciation value and after obtaining the Amin report about market value of the land as well as the construction and after giving opportunity of evidence to both the parties determine the valuation of the plaintiff’s share. The first appellate court has also observed that the market value for sale and purchase can be determined on the basis of p