JUDGMENT

Hon'ble Lok Pal Singh, J.

Appeal from order under Order 43 Rule 1(u) of Code of Civil Procedure is preferred against the judgment and order dated 18.05.2017, passed by District Judge, Haridwar, in regular Civil Appeal no. 10 of 2016, Tirath Singh vs Bhajan Singh and others, whereby the first appeal filed by the respondent no. 1 against the judgment and decree dated 17.09.2017, passed by learned Civil Judge (J.D.), Haridwar in O.S. no. 215 of 2002 has been allowed and the matter was remanded back to the trial court.

2. Brief facts of the case are that the first respondent/plaintiff filed O.S. no. 215 of 2002, Tirath Singh vs Bhajan Singh and others for cancellation of sale deed dated 15.10.1996 executed by defendant no. 1 Bhajan Singh in favour of defendant nos. 2, 3 and 4 exercising powers given to him by plaintiff Tirath Singh through registered Power of Attorney dated 24.04.1980. the appellants and respondent nos. 2 and 3 filed their written statement denying the plaint averments and stated that the plaintiff himself has executed the registered Power of Attorney in favour of defendant no. 1, who in turn executed the sale deed dated 15.10.1996 after taking sale consideration from the vendee.

3. Learned trial court, on the basis of pleadings of the parties, formulated following issues:

i) Whether defendant no. 1 was appointed Power of Attorney?

ii) Whether the sale deed dated 15.10.1996 is null and void?

iii) Whether the valuation of suit is wrongly calculated and suit is under valued?

iv) Whether the suit is barred by Section 49 of the Consolidation of Land Holdings Act?

v) Whether the plaintiff is entitled for any relief? If yes, its effect.

4. Learned trial court has recorded its findings on all the issues and held that the defendant no. 1 was appointed the Power of Attorney holder by the plaintiff himself. The sale deed dated 15.10.1996 was executed by the Power of Attorney holder after taking the sale consideration and decided issue nos. (i) and (ii) against the plaintiff. While recording findings on issue no. (iv), the trial court has held that though the suit is not barred by the provisions of Section 49 of the Consolidation of Land Holdings, but since the finding nos. (i) and (ii) were recorded against the plaintiff, the learned trial court vide judgment and decree dated 17.09.2014, dismissed the suit. Feeling aggrieved, a civil appeal was filed by the plaintiff.

5. Learned First Appellate Court without adverting to the findings on any of the issues and without reversing the findings recorded by the trial court on the issues in a cursory and crypticmanner, allowed the appeal by impugned judgment and order dated 18.05.2017 and remanded the matter to the learned trial court to decide the suit after recasting the issues.

6. Learned counsel for the appellants/defendants would submit that the First Appellate Court, which was the last court on facts and law, has erred in law in allowing the appeal and in remanding the matter back to the trial court without setting aside the findings recorded by the court below. Learned counsel would further submit that by means of impugned order, the First Appellate Court has extended undue benefit in favour of the plaintiff by remanding the matter without assigning any reasons for doing so. It is also submitted that though power to remand the matter vests with the Appellate Court, but the same could be exercised under Order 41 Rule 23 of CPC.

7. Order 41 Rule 23 of the Code of Civil Procedure, 1908, is extracted here-in-below for convenience:

“Order 41 : APPEALS FROM ORIGINAL DECREES

23. Remand of case by Appellate Court – Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the