JUDGMENT The plaintiff in Title Suit No. 37/65/1957 is the appellant in this second appeal. She brought the suit out of which the second appeal arises for ejectment of respondent 1 from the suit land with 13-1/2 pots of paddy as arrears of loushal, her case being that respondent 1 was a tenant and that already two decrees in R. S. No. 55 of 1950 and 67/1950 in the Court of the Additional Munsiff have been obtained against him for arrears of rent at the rate of 13-1/2 pots of paddy per year. Respondent 1 contested the suit and pleaded that the land in question belonged to his father Pamjou Singh, that after his death about 28 years ago, he and his 3 brothers have been enjoying it jointly in their own right as owners and that the alleged tenancy was false. He further contended that the suit was bad for non-joinder of his brothers as parties. Thereupon the appellant impleaded respondent 1s brothers as defendants 2 to 4 stating that they were assisting respondent 1 in the cultivation and harvesting and she claimed ejectment of all the defendants from the land. Defendants 2 to 4 however remained ex parte in the trial Court, though served with summonses, and the trial proceeded only on the defence raised by the respondent 1. 2. The learned Subordinate Judge framed 3 issues in the case : (1) Was the defendant a tenant of the plaintiff on the agreement to pay 13-1/2 pots of paddy as loushal? (2) Does he hold over the land despite Louhaidokpa (order to quit) by asserting his title? (3) Is the plaintiff entitled to eject the defendant and also 13 1/2 pots of paddy as loushal for 1956? 3. The learned Subordinate Judge gave a finding on issue 1 that respondent 1 was the tenant of the appellant on a rent of 13-1/2 pots of paddy a year. On issue 2 he held that respondent 1 was holding over in spite of notice to quit by asserting adverse title to the appellant. On issue 3 he held that respondent 1 was liable to be evicted with the arrears of rent. On issue 2 he held that respondent 1 was holding over in spite of notice to quit by asserting adverse title to the appellant. On issue 3 he held that respondent 1 was liable to be evicted with the arrears of rent. Regarding defendants 2 to 4, he held that they were unnecessary parties as they were only assisting a tenant in cultivating the land and as respondent 1 admitted in the course of his evidence that he alone was in possession of the land. So he did not give any decree against defendants 2 to 4 and struck them off from the suit. 4. The matter was taken up in appeal to the District Judge by respondent 1. The learned appellate Judge held that the appellant herein brought the suit for the ejectment of not only respondent 1, but also all the other 3 defendants who are admittedly not her tenants and that she could therefore get a decree only if she established a better title as against them and that the appellant therefore ought to have framed the suit on the basis of title and the Subordinate Judge ought to have given a finding on the question of title. He found that the appellant had not produced the document of title. He was of opinion that the appellants title ought to have been gone into and respondent 1s plea of having perfected title by adverse possession also should have been gone into. As the Subordinate Judge had failed to give any findings on those points the learned appellate Judge remanded the suit for further trial on those questions. He directed the Subordinate Judge to give an opportunity to the appellant to amend the plaint by adding a prayer for declaration of her title and if she so amended to call upon her to pay ad valorum Court fee. It is against this order of remand that the present second appeal has been filed. 5. The appellant originally filed it as a Civil Revision Petition. Subsequently, she filed another petition to treat the revision petition as an appeal under Order 43 Rule 1(u) C. P. C. and paid the extra Court Fee and it was converted into a second appeal. 5. The appellant originally filed it as a Civil Revision Petition. Subsequently, she filed another petition to treat the revision petition as an appeal under Order 43 Rule 1(u) C. P. C. and paid the extra Court Fee and it was converted into a second appeal. No summonses were issued to respondents 2 to 4 as they had been struck off and no relief was granted against them by the trial Court, the appeal being thus restricted against respondent 1 alone. 6. It was first contended on behalf of respondent 1 that a second appeal will not lie under Order 41 Rule 23 as this was not a case where the trial Court had disposed of the suit upon a preliminary point and the decree was reversed in appeal and the suit remanded by the appellate Court for trial on further issues. It was pointed out that the remand in the present case must be treated as one under Sec. 151 C. P. C., and that therefore no second appeal will lie against such an order of remand. I am unable to agree with this argument. The learned Subordinate Judge did not raise any issues regarding title in the suit and disposed it of on the basis of landlord and tenant. The learned appellate Judge felt that the Subordinate Judge should not have disposed of the case on the basis of landlord and tenant, but should have framed issues on the question of title. The remand was for framing such an issue and to give a finding on the question of title. Thus it is a case where the appellate Judge felt that the suit has been disposed of on a preliminary issue or at least without framing proper issues and giving findings on such issues. The disposal of the case on the findings on the issues on record was set aside and the suit remanded with a direction to frame proper issue. Thus the case come clearly under Order 41 Rule 23. An appeal is provided under Order 43 Rule 1(u) against such an order of remand under O. 41 R. 23. The disposal of the case on the findings on the issues on record was set aside and the suit remanded with a direction to frame proper issue. Thus the case come clearly under Order 41 Rule 23. An appeal is provided under Order 43 Rule 1(u) against such an order of remand under O. 41 R. 23. In any case, if this matter cannot be disposed of as a Second Appeal, it can be treated as a Civil Revision Petition and if it is found that the learned appellate Judge has acted with material irregularity in the exercise of his jurisdiction, the High Court can interfere under Sec. 115 C. P. C. 7. Now I shall proceed to consider the question whether the appellate Judge was right in remanding the case with a direction to call upon the appellant to amend her plaint by incorporating a prayer for a declaration of her title. The appellant was entitled to file a suit against respondent 1 for recovery of possession on the basis of landlord and tenant. Section 7 Cl. XI(cc) of the Court-fees Act also prescribes the court-fee for such a suit. The appellant had brought the present suit on that basis. In such a suit the defendant was entitled to plead by way of defence that he was not the tenant of the plaintiff and that he was in possession of the land in his own right. If such a defence was raised, the defendant was also entitled to prove his title to the land as against the appellant, but only in order to disprove the case of tenancy. But the plaintiff cannot be directed by the Court to amend the plaint by asking for a declaration of title simply because the defendant disputed the tenancy and set up his own right. The only question to be decided in such a suit was whether the tenancy was true. If the tenancy was found not proved the suit had to be dismissed. If the suit was thus dismissed, it will not bar a fresh suit by the plaintiff asking for possession against the defendant, on the basis of title. Thus the only question at issue in the present case was whether the alleged tenancy was true or not. 8. If the tenancy was found not proved the suit had to be dismissed. If the suit was thus dismissed, it will not bar a fresh suit by the plaintiff asking for possession against the defendant, on the basis of title. Thus the only question at issue in the present case was whether the alleged tenancy was true or not. 8. The learned appellate Judge appeared to have been under the impression that the appellant had asked for relief of possession against defendants 2 to 4 on the basis of title. He failed to see that the plaint allegation against defendants 2 to 4 was that they were assisting respondent 1, who was the appellants tenant in the cultivation of the land and possession was claimed against them only because of such assistance and not on the basis of her title as against them. The learned appellate Judge again did not see that when summonses were served on defendants 2 to 4 with the said allegations, they remained ex parte thereby showing that they were not interested in contesting the said allegations. They were made parties on account of the respondent 1s plea that the suit was bad for their non-joinder. But at the time of trial, respondent 1 himself admitted that they were not in possession and that he alone was in possession. On that evidence, the learned Subordinate Judge held that they were unnecessary parties and so he did not give any relief against them. Thus, the suit was one as between the appellant and respondent 1 on the basis of tenancy. The only question to be decided was whether the tenancy was true or not. The character of the suit did not change in any manner by the impleading of defendants 2 to 4. In any case, as they were struck off from the suit, the appellant did not have to prove anything against them. 9. The only question which the appellate Judge has thus to decide in appeal was whether the finding of the learned Subordinate Judge on the question of tenancy was correct or not. The learned Subordinate Judge had before him Exts. 1 and 2, the certified copies of two judgments obtained by the appellant against respondent 1 for arrears of rent in 1949-50. Those judgments clearly showed that in 1949-50, the relationship of landlord and tenant existed between the appellant and respondent 1. The learned Subordinate Judge had before him Exts. 1 and 2, the certified copies of two judgments obtained by the appellant against respondent 1 for arrears of rent in 1949-50. Those judgments clearly showed that in 1949-50, the relationship of landlord and tenant existed between the appellant and respondent 1. The learned appellate Judge has remarked that the said judgments only showed the existence of the relation of land-lord and tenant for the period for which those suits were brought and not when the present suit was brought. No doubt he is correct. But he forgot that those suits were merely rent suits and the ejectment of respondent 1 from the land had not been ordered. It was therefore for respondent 1 to show that the relationship of land-lord and tenant had ceased subsequent to those decrees and that he was in possession in his own right at the time when the present suit was brought. The learned appellate Judge has mentioned respondent 1s plea that he had acquired title by adverse possession against the appellant. One fails to see how respondent 1 could come forward at all with such a plea in 1957, in the face of the two decrees against him in 1950 for arrears of rent. The learned appellate Judge had clearly lost sight of this aspect of the matter. 10. The appellate Court has remanded the case to frame the necessary issues and to give findings on the question of the title of the appellant and on the question of the plea of adverse possession raised by respondent 1. From what I have stated above it is clear that no question of adverse possession by respondent 1 would arise at all for decision in this case. As for the title of the appellant, the question can be decided in this suit only if the appellant amended her plaint claiming a declaration of title against respondent 1. The appellate Judge also appeared to have realised this and he has directed the Subordinate Judge to give her an opportunity to amend the plaint. But he did not pause to see what the result would be if the appellant refused to amend her plaint and to pay ad valorem Court Fee. The appellate Judge also appeared to have realised this and he has directed the Subordinate Judge to give her an opportunity to amend the plaint. But he did not pause to see what the result would be if the appellant refused to amend her plaint and to pay ad valorem Court Fee. As already pointed out the appellant was entitled to base her claim on the basis of landlord and tenant particularly in view of the two previous decrees obtained by her against respondent 1. A Court should decide a case on the pleadings and not direct any party to make further unnecessary pleadings or to ask for further prayers. 11. It is clear therefore that the appellate Court was entirely wrong in law in remanding this case and in calling upon the appellant to amend the plaint by adding a prayer for declaration of her title. He has acted with material irregularity in the exercise of his jurisdiction in doing so. The order of remand therefore cannot be allowed to stand and it is accordingly vacated and the second appeal is allowed. 12. As the appellate Court has failed to go into question whether the Subordinate Judges finding regarding respondent 1s tenancy is correct or not, the appeal has to be remanded to him for fresh disposal and for decision of the question in the appeal in the light of the observations contained in this judgment. The costs of this second appeal will abide the result of the decision in the appellate Court. The Court fee paid on this memorandum of appeal will be refunded to the appellant. Case remanded.