This misc. appeal is preferred by the appellants/defendants 1-2

challenging the judgment of remand dtd. 21.02.2005 passed by 1 ^st

Additional District Judge, Sagar in civil appeal No.7-A/2003

reversing the judgment and decree dtd. 29.09.2003 passed by 2 ^nd

Civil Judge Class-I, Sagar in civil suit No.8-A/2002, whereby

learned trial court dismissed the respondents 1-2/plaintiffs’ suit for

declaration of title and permanent injunction filed in respect of the

suit property, which in civil appeal filed by the plaintiffs has been

set aside and matter has been remanded to learned trial court for

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decision of civil suit afresh, after getting demarcated the suit

property through Commissioner/Revenue Officer.

2.

The suit in question has been filed for declaration of title and

permanent injunction with the allegations that the plaintiffs are

owner and in possession of the suit house and appurtenant open land

bearing house No.348, situated in Gopalganj Ward. It is alleged that

the plaintiff is residing in the house for last 40-50 years, which is

situated on the land (new) nos. 506/7 and 509/1, old number of

which was 473 area 1.27 acre, which was purchased by husband and

father of plaintiffs 1-2 namely Kanhaiyalal (died in the year 1977)

vide regd. sale deed dtd. 03.04.1933. It is also alleged that the

defendant 1 has executed sale deed of the suit property in favour of

defendant 2 on 05.06.1997 for consideration of Rs.1,60,000/-

without any authority, on that basis the defendants 1-2 want to

dispossess the plaintiffs. Hence, prayed for decreeing the suit.

3.

The defendants 1-2 appeared and filed written statement

denying the plaint allegations. It is also denied that that new

numbers of khasra no. 473 are 506/7 and 509/1 and the suit property

is situated in khasra no. 506/7 and 509/1. It is also contended that

the residential house of the plaintiffs, defendant 1,3,4 and another

son of Kanhaiyalal namely Raghuvar is constructed over khasra

No.473. It is contended that kachcha house constructed over khasra

No.506/7 and 509/1 is different house, which has been purchased by

defendant 2 from defendant 1 vide registered sale deed dtd.

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05.06.1997, on the basis of which mutation has also been done vide

order dtd. 22.10.1997. It is also contended that the plaintiffs have

no nexus with the land of khasra No.506/7 and 509/1 as well as the

house no. 348 constructed thereon. On inter alia contentions the

suit was prayed to be dismissed.

4.

On the basis of pleadings of the parties learned trial court

framed issues and recorded evidence of the parties and vide

judgment and decree dtd. 29.09.2003 dismissed the suit. Against

which the plaintiffs preferred civil appeal No.7-A/2003 on

02.12.2003, which vide impugned judgment dtd. 21.02.2005 has

been allowed and by setting aside the judgment and decree of trial

Court, matter has been remanded to learned trial court for decision

of the civil suit afresh after getting the suit property demarcated

through Commissioner/Revenue Officer. Against which the

appellants/defendants 1-2 preferred instant misc. appeal.

5.

Learned counsel for the appellants/defendants 1-2 submits that

there is no dispute of title of the lands in question amongst the

parties and the suit property/land of the plaintiffs is different and

the property of the defendants is also different, which is clear from

the pleadings and documentary evidence, as well as from the

admissions made by plaintiffs in their oral testimony, therefore,

there is no necessity for demarcation of the suit property/land and

learned first appellate court has committed illegality in passing

judgment of remand with the direction to decide the suit afresh after

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getting the suit property demarcated through some Commissioner/

Revenue Officer. He also submits that with a view to ascertain the

factum of possession, commission cannot be issued, which would be

amo