With the consent heard finally.

1. Both these appeals have been filed under Order 43 Rule 1 (u) of the Code of Civil Procedure (for short the 'CPC') against the common judgment and decree dated 22.1.2008 passed by the 1st Additional District Judge, Neemuch in Regular First Appeals No. 10-A and II-N2007. As the question of facts and law involved in both the appeals are common, they are being decided by this common order.

2. Briefly stated, the respondent-plaintiff filed a Civil Suit No. 86-N 2005 for permanent injunction for restraining the defendant from interfering into his possession on the part of the plot admeasuring 60x40 square feet situated at Village Antri Bujurg, Tahsil Manasa. According to the plaintiff he being owner and in possession of the said plot, the respondent has no right to restrain him from raising construction over it and to forcibly dispossess him by demolishing the construction raised over it.

3. The appellant-defendant filed a written statement and counter-claim. He averred that for the legal necessity of family the plaintiff, his brother Karulal and his mother Suhag Bai had sold part of the said plot admeasuring 18 x 60 sq. feet to one Guman Singh vide agreement to sale dated 13.1.1982. According to the defendant, he purchased the said part of the plot from Guman Singh vide agreement dated 9.3.1991 and also obtained its possession. He further averred that the plot was then mutated in his name by the Gram Panchayat. He, therefore, sought a decree of declaration so as to declare him to be the owner of the part of the plot to the extent of 18 x 60 sq. feet as per the description given by him in the written statement and also prayed for decree of deli very of possession of it from the plaintiff.

4. The counter-claim of the defendant was denied by the plaintiff by filing reply of the same. It was alleged that the said Guman Singh had no right and title to sale the plot to the defendant. He stated that on the basis of the alleged agreement of sale, the defendant cannot raise the plea of ownership.

5. The trial Court framed as many as 6 issues and after giving full opportunity to the parties to lead their respective evidence vide its judgment and decree dated 2.7.2007, dismissed the plaintiff's suit holding that though he is in illegal possession of the suit plot, has failed to prove his title over the suit plot. The trial Court allowed the counter-claim of the defendant holding the possession of the plaintiff to be illegal and held the defendant to be the owner of the plot on the basis of the agreement of sale with Guman Singh. However, it held that since the documents relating to sale being not registered, the execution of the decree can be filed by the defendant only after getting the documents Exs. D-1 and D-2 registered in accordance with law.

6. Aggrieved by the aforesaid judgment and decree passed by the trial Court both the parties preferred first appeals. The appeal No. 10-A/ 2007 which was filed by the plaintiff was against the dismissal of his suit, holding his possession to be illegal and also against allowing the defendant's counter-claim by granting him decree of possession as also of permanent injunction. The appeal No. 11-A/2007 filed by the defendant was to challenge the direction given in Para 31 (3) of the impugned judgment and decree holding that the execution of the judgment and decree can be filed only after registration of documents of sale of the plot.

7. Both the aforesaid appeals have been decided by the common judgment and decree dated 21.2.2008 passed by First Appellate Court. The appellate Court by the impugned judgment and decree remanded the suit for retrial on the ground that neither Guman Singh has been made a party in the suit nor he has been examined as a witness, in the circumstances in the absence of his say in the suit the trial Court has not decided the suit effectively. The appellate Court, while remanding the suit to the trial Court directed the trial Co