The Appellate Court has the jurisdiction to remand the case to the Trial Court for fresh trial on merits as per Order 41 Rule 23 & 23-A of CPC.

JUDGMENT :

Rajeev Kumar Shrivastava, J.

1. This Misc. Appeal has been filed by the appellant under Order 43 Rule 1(u) of Code of Civil Procedure 1908 (for brevity "CPC") challenging the judgment and decree of remand dated 23/7/2019 passed by Third Additional District Judge, Ganj Basoda, District Vidisha in Civil Appeal No. 1/2016, thereby the judgment and decree dated 24/11/2015 passed by Civil Judge, Class-I, Ganj Basoda, District Vidisha in Civil Suit No. 143-A/2014 has been reversed and the matter has been remanded back to the trial Court to decided the suit afresh.

2. Brief facts of the case are that respondents No. 1 to 3/plaintiffs had instituted a civil suit for declaration of title, partition and separate possession with regard to agricultural land Survey No. 49/1 area 0.941 hectare, out of area 1.000 hectare, situated in Village Bharnakheda, Tahsil Shamshabad, District Vidisha. It was pleaded in the plaint that the plaintiffs are daughters of Deviram, who had two sons, namely, Banwari and Narayan Singh. Banwari is defendant No. 1 and Narayan Singh has died, whose legal heirs are the defendants 5 to 9. Deviram was bhumiswami of the land Survey No. 41/1 area 0.165 hectare, Survey No. 49/1 area 1.000 hectare, Survey No. 165/1 area 0.083 hectare and Survey No. 182/1 area 0.031 hectare, total area 1.279 hectare situated in Village Bharnakhedi, Tahsil Shamshabad, District Vidisha. After death of Deviram, plaintiffs and defendants got one fifth share each and their names were mutated accordingly in the revenue papers. The defendant Banwari and deceased Narayan Singh got the partition done on 'panji' fraudulently leaving aside the plaintiffs without there being any consent of the plaintiffs, and later on, refused to give agriculture produce against the share of plaintiffs. Thereafter, plaintiffs came to know that Narayan Singh, without any exclusive right, had sold area 0.941 hectare of Survey No. 49/1 to appellant/defendant No. 7-Kalpana, whereas against his share, he had only 0.255 hectare of land, and therefore Narayan Singh has no right to sell the property of more than his share. The plaintiffs are having share of an area 0.766 hectare out of total area 1.278 hectare and are entitled for declaration and possession after partition of land. The plaintiffs also prayed that the sale deed executed by Narayan Singh is null and void to the extent of share of plaintiffs and defendant No. 7 be restrained from alienating the land and from getting her name mutated.

3. The defendants/respondents No. 5 to 9 and 10, despite service of summons, did not file written statement and were proceeded ex-parte. Appellant/defendant No. 7 appeared and filed written statement denying the plaint allegations and contended that after death of Narayan Singh, name of legal representatives were mutated, thereafter with the consent of plaintiffs, partition between the defendant No. 1 and Narayan Singh was done on mutation panji, which also bears thumb impression of the plaintiffs. Banwari and deceased-Narayan Singh, after having received entire consideration of Rs. 1,80,700/-, sold an area 0.941 hectare and delivered possession to appellant/defendant No. 7 vide registered sale deed dated 19/5/2008 and this fact had been in the knowledge of plaintiffs but plaintiffs did not challenge the same after year 2008 onwards, therefore, the civil suit being barred by time deserves to be dismissed. Defendants No. 5 to 9 with collusion of plaintiffs had instituted a civil suit for permanent injunction and again the plaintiffs with collusion of defendants No. 5 to 9 have instituted the present suit. On the aforesaid inter alia contentions, the suit was prayed to be dismissed.

4. On the basis of pleadings, trial Court framed issues and recorded evidence of parties. Thereafter, trial Court heard arguments of both the parties and dismissed the suit after recording findings against the plaintiffs regarding cause of action and limitation vide judgment and decree dated 24/11/2