J U D G M E N T

The Civil Miscellaneous Appeal is directed against the order of remand passed in A.S.No.92 of 2016 dated 26.07.2019 on the file of the 4th Additional District Court, Tirunelveli, setting aside the judgment and decree passed in O.S.No.101 of 2009 dated 12.09.2016 on the file of the Sub Court, Valliyoor.

2.The appellants are the defendants 1 and 2. The respondents/plaintiffs have filed the suit in O.S.No.101 of 2009 claiming reliefs of declaration that the plaintiffs are the legal heirs of the deceased Subbammal in respect of the suit property and for handing over the possession of the suit property within the time frame fixed by the Court and for permanent injunction restraining the defendants and their men from any manner alinating or emcumbering the suit property and also for permanenant injunction restraining the defendants from making any construction in this suit property, till the disposal of the suit.

3.The defendants have filed written statment disputing the claim putforth by the plaintiffs and claimed ownership of the suit property on the basis of two Wills, one executed by Nambiammal on 29.08.1991 and the other executed by Subbammal dated 25.05.2006. The learned Sub- ordinate Judge, after trial, passed the judgment and decree dated 12.09.2016 dismissing the suit. The plaintiff, agreeived by the said judgment of dismissal, has preferred an appeal in A.S.No.92 of 2016 and the learned First Additional District Judge, after perusing the materials avilable on record, has passed the impunged judgment on 26.07.2019 setting aside the judgment and decree passed in O.S.No.101 of 2009 dated 12.09.2016 and remanded the matter back to the trial Court, directing the trial Court to frame necessary issues with respect to the alleged Wills and to find out the genuineness of the Wills and further directed the trial Court to send the Will dated 25.05.2006 along with sale deed dated 16.06.1978 containing the finger print of said Subbammal for comparison and get a report and afford opportunities to both sides to adduce further evidence and then decide the case in accordance with law.

4.During pendency of the appeal, an application in I.A.No.56 of

2018 has been filed for sending the Will alleged to have been executed by the said Subbammal and sale deed dated 16.06.1978 containing the finger print of the said Subbammal for expert's opinion for comparison and for getting report and that the learned Appellate Judge has considered the said application along with the appeal and passed an order directing the trial Court to send the said documents to expert's opinion and get a report, and closed the petition.

5.Aggrieeved by the said order of remand, the defendants 1 and 2 have preferred the present Civil Miscellaneous Appeal.

6.The learned counsel for the appellants would contend that the first Appellate Court has remended the Suit without following Order 41 Rule 23A and Rule 24 of CPC, that the Appellate Court ought to have invoked its power under Order 41 Rule 24 of CPC and decide the appeal after resettling the issues, that the first appellate Court failed to consider that the defendants have proved the Will dated 25.05.2006 and as such there is no necessity for the defendants to send the documents for expert's opinion and that the appellate Court has committed serious error in giving a finding that the thump impression of the deceased Subammal in the Will was not proved by getting the opinion of expert and in order to give an opprotunity to the plaintiff, the appeal has to be remanded. 7.The case of the plaintiff is that the suit property was originally owned by one Vairamuthu Konar and after his death, his two sons Sokkalinga Konar and Chollayandi konar had partitioned the properties of Vairamuthu Konar on 18.05.1925 and whereunder the suit properties were allotted to the Chollaiyandi Konar. After the death of Chollayandi Konar his wife Essakkiyammal and his two daughters Nambiyammal and Subbammal have become the owners of the s