ORDER

1. The instant miscellaneous appeal under Order 43 rule 1(u) read with section 151 of the Code of Civil Procedure has been preferred by the appellants–defendants No. 1 and 2 against the order dated 30.6.2022 passed by the Third District Judge, Joura, District Morena (hereinafter referred to as “the first Appellate Court”) in Regular Civil Appeal No. 07 of 2019, whereby the judgment and decree dated 7.9.2019 passed by the First Additional Judge to the Court of First Civil Judge, Class-I, Joura, District Morena (hereinafter referred to as “the trial Court”) in Civil Suit No. 37-A of 2016 has been set aside and the matter has been remanded to the trial Court for deciding the suit afresh on merits after obtaining a Commissioner’s report regarding alleged encroachment over the suit plot.

2. Facts of the case, in brief, are that respondent No.1–plaintiff instituted a suit for recovery of possession and compensation. According to the plaintiff, she is the owner and possessor of a plot measuring 20 feet in width and 50 feet in length, forming part of Survey No.1143, total area 2 Bigha 8 Biswa situated at Village Alapur, Pargana Joura, District Morena. The plot was purchased by her vide registered sale deed dated 18.5.2006 from the erstwhile owner Sultan Singh, and her name was duly mutated. It was further pleaded that on the southern side of her plot, Hemlata had purchased a plot of size 20'×50' from Sultan Singh on 18.5.2006, which was later transferred to Suresh Kumar and subsequently to Sikander Singh (defendant No.2). The plaintiff alleged that a portion measuring 10'×50' of her plot, situated adjacent to the plot of defendant No.2, constituted the disputed land (shown by red ink in the map annexed with the plaint). She denied ever transferring any part of her plot to anyone. According to her, on 30.5.2016, defendant Jitendra Singh, in conspiracy with defendant No.2, started digging foundation for construction of a house over an area of 30'×50', including the disputed 10'×50' portion of the plaintiff’s plot, and when she objected, she was abused. Her complaint to the local police yielded no action, compelling her to file the suit. She further claimed damages at the rate of Rs. 2,000 per day for the alleged illegal occupation.

3. After service, defendant No.3 remained ex parte. The appellants– defendants appeared and filed a written statement denying the plaint allegations. It was pleaded that the plaintiff did not purchase the disputed land; instead, she purchased only an open land. According to the defendants, the Court land lies to the south of the plaintiff’s land and several purchasers, including the plaintiff, had encroached upon the Court land. It was further pleaded that after demarcation of the Court land, a boundary wall was raised, resulting in reduction of area pertaining to Rekha and Kamla, who in turn encroached upon the land of the plaintiff. It was further asserted that the plaintiff wrongly marked 10'×50' as disputed land, whereas the defendants never encroached upon her land. The defendants therefore prayed for dismissal of the suit. After framing issues and recording evidence, the Trial Court dismissed the suit by judgment and decree dated 7.9.2019. Being aggrieved, the plaintiff preferred Regular Civil Appeal No.07/2019, which was partly allowed by the first Appellate Court. The first Appellate Court set aside the judgment and decree dated 07.09.2019 and remanded the matter to the trial Court with directions to call for a Commissioner’s report and thereafter decide the suit afresh. Being aggrieved, the defendants have preferred the present appeal.

4. Learned counsel for the appellants defendants contended that the first Appellate Court committed a grave error in invoking the provisions of Order 41 rule 23-A of the Code of Civil Procedure to remand the matter. It is submitted that the appellate Court remanded the matter without setting aside the findings recorded by the trial Court on Issues No. 1 to 5. It is