The first appellate Court can remand the suit to the trial Court only after reversing the decree and should consider the appeal on merit before remanding the case.

ORDER :

Plaintiffs have filed the present appeal under Order 43 Rule 1(U) of the CPC against the judgment dated 03.08.2012 passed by the Additional District Judge, Badwah, district Khargone (West Nimar) whereby the first appeal No.19-A/2007 filed by the defendants has been allowed and the matter has been remanded back to the trial Court for fresh adjudication.

Facts of the case in short are as under:

2. Present appellants being plaintiffs filed a suit for permanent injunction and declaration for the land bearing survey No.49, area 11.189 hectares & survey No.33, area 11.920 hectares, situated at village Piday Bujurg, Tahsil Badwah (hereinafter referred to as 'the suit land'). According to the plaintiffs, they are owners and occupiers of the suit land. The suit land was given to the ancestor of the plaintiffs by the owner late Rana Balbahadur Singh, the then Inamdar vide lease deed dated 17.05.1955 for a period of 99 years. The father of the plaintiffs became Krishak and after his death the plaintiffs have acquired the status and are in possession and after coming into force the M.P.L.R Code, 1959, they have acquired the title of Bhumiswami. On 21.09.2001 the plaintiffs dug two tube wells on survey No.49 which was in the knowledge of the defendants. Against Rana Balbahadursingh a proceeding under the M.P. Agriculture Ceiling Act was registered in which he submitted a declaration that the suit land was given to the father of the plaintiffs and the proceedings were closed vide order dated 28.01.1976, therefore, he was no more owner of the suit land and the said judgment has attained finality. The plaintiffs have alleged that despite the aforesaid the defendants are trying to dispossess them forcibly, hence a cause of action was accrued in their favour for filing the suit.

3. The defendants filed the written statement denying the averments made in the plaint. According to the plaintiffs, their father was a Govt. Teacher and after quitting the service he worked as Diwan and the suit land was under court of voice and in the year 1951-52 the defendants became major as well as owner of the suit land. When the Jagirdari Abolition Act was came into force, the defendants were owner of the suit land. After the death of Balbahadur Singh in the year 1999 the defendants' name were mutated in the revenue record and the plaintiffs did not raise any objection.

The lease deed is not admissible in evidence. The father of the plaintiffs was suffering from paralysis in the year 1976-77 and was incapable of doing the agricultural work, hence prayed for dismissal of the suit. The defendants were proceeded ex-parte in the suit and did not cross examine the plaintiffs' witness. Vide judgment and decree dated 06.02.2007 learned Civil Judge has decreed the suit in favour of the plaintiffs.

4. Being aggrieved by the ex-parte proceedings, the defendants filed an application under Order 9 Rule 7 CPC but got registered it as an application under Order 9 Rule 13 CPC, however, that application was dismissed and an ex-parte decree dated 06.02.2007 was passed. Being aggrieved by the ex-parte judgment and decree, the defendants preferred a regular civil appeal under section 96 of the CPC. The said appeal was opposed by the plaintiffs, however, learned Additional District Judge, Badwah vide judgment dated 03.08.2012 has set aside the ex-parte judgment and decree dated 06.02.2007 and remanded the case to the trial Court with cost of Rs.5,000/-, hence the present appeal before this Court.

5. Learned counsel for the appellants submits that after dismissal of the application under Order 9 Rule 7 CPC the defendants filed a writ petition No.666/2006 before this Court, however, on 30.08.2006 they withdrew the said writ petition. Thereafter they moved a fresh application under Order 9 Rule 7 CPC which was rejected by the trial Court on 16.01.2007 and vide judgment and decree dated 06.02.2007 the suit has been decreed, therefore, the first appellate Court has wrongly set aside th