JUDGMENT 1. 1. Heard learned counsel for the parties. Brief facts leading to this appeal are that the plaintiff-respondents filed a suit for injunction against the defendant-appellants. The case of the plaintiffs was that the land in dispute belong to one Ram Chander Son of Shri Kishan Sahai from whom the plaintiffs purchased the land by an agreement to sale dated February 12, 1986. According to the plaintiffs they were the owners and in possession of the land in question and the defendants wanted to dispossess them in an un-lawful manner. The case of the defendants was that the land in question was in their ownership and possession and the plaintiffs had no concern with it. It was also pleaded by the defendants that the disputed property neither belong to Ram Chander son of Kishan Sahai nor Ram Chander was ever in possession of the same. The fact of any agreement of sale dated February 12, 1986 made by Ram Chander in favour of the plaintiffs was also denied and in the alternative it was pleaded that the defendants were not bound by such agreement to sale. The trial court on the basis of the pleadings of the parties framed as many as seven issues. The plaintiffs in support of their case examined six witnesses and the defendants examined five witnesses. Parties also produced documentary evidence in support of their case. Learned trial court considered issue Nos. 1 and 2 together and after considering the entire oral and documentary evidence recorded a finding that the 'Guwada' in question was not proved to be in the ownership and possession of Ram Chander Son of Kishan Sahai. The trial court in view of the above finding also observed that the agreement to sale Exs. 1 & 2 did not confer any right or interest in favour of the plaintiffs in the 'Guwada' in question. The trial court also held that the possession of the plaintiffs is also not proved over the 'Guwada' in question and as such decided both the issue Nos. 1 & 2 against the plaintiffs and in favour of the defendants. 2. Aggrieved against the judgment and decree of the trial court, the plaintiffs filed an appeal. The learned Additional District Judge, Kishangarhbas, District Alwar by its judgment dated November 8, 1988 allowed the appeal and remanded the case to the trial court for fresh decision. 3. 1 & 2 against the plaintiffs and in favour of the defendants. 2. Aggrieved against the judgment and decree of the trial court, the plaintiffs filed an appeal. The learned Additional District Judge, Kishangarhbas, District Alwar by its judgment dated November 8, 1988 allowed the appeal and remanded the case to the trial court for fresh decision. 3. Aggrieved against the above order of the learned Additional District Judge, the present appeal has been filed by the defendants. Mr. Mather, learned counsel for the appellants submitted that the learned Additional District Judge did not decide the appeal on merits but allowed an application for amendment in the plaint on the basis of two sale-deeds alleged to have been executed by Ram Chander in favour of the plaintiffs on July 28, 1988. Mr. Mathur thus submitted that the lower Appellate Court committed a serious error in allowing the amendment specially when the trial court had given a finding that Ram Chander, the predecessor in title of the present plaintiff, was not proved to be the owner or in possession of the disputed 'Guwada'. It was submitted that when the trial court had given a categorical finding in favour of the defendants that Ram Chander the predecessor in title of the plaintiffs was neither in possession nor the owner of the 'Guwada' in question then the alleged sale-deeds executed by Ram Chander in favour of the plaintiffs on July 28, 1988 had no effect at all in the determination of the controversy raised in the main suit. It was argued that the plaintiffs or their predecessors in title had not been proved to be in possession or ownership of the 'Guwada' in question and in this view of the matter the Appellate Court had no jurisdiction to set aside the judgment and decree passed in favour of the defendants on the basis of the finding of issue Nos. 1 & 2 recorded in their favour. 4. On the other hand learned counsel for the plaintiffs contended that the lower Appellate Court had considered all the facts and circumstances of the case and thereafter had allowed the amendment in the plaint which was based on a subsequent event which came into existence on July 28, 1988 during the pendency of the appeal. 4. On the other hand learned counsel for the plaintiffs contended that the lower Appellate Court had considered all the facts and circumstances of the case and thereafter had allowed the amendment in the plaint which was based on a subsequent event which came into existence on July 28, 1988 during the pendency of the appeal. It was contended that in case there was any defect in the title of the plaintiffs, the same had been removed and the title in their favour had been perfected by executing two sale-deeds on July 28, 1988. It was thus submitted that the lower Appellate Court was perfectly justified in allowing the amendment and remanding the case to the trial court for fresh decision. 5. I have considered the rival submissions made by learned counsel for both the parties. So far as the plaintiffs are concerned, their case was that they had derived title from Ram Chander by an agreement to sale dated February 12, 1986 and thereafter. they were in peaceful possession and the defendants had no right to make any interference in their possession. The case of the defendants on the other hand was that Ram Chander the predecessor in title of the plaintiffs was himself neither the owner nor in possession of 'Guwada' in question. The defendants further claimed to be in possession of the Guwada in their own right. The trial court after considering the entire oral and documentary evidence clearly recorded a finding under issue Nos. 1 & 2 that the title and possession of Ram Chander was not proved on the 'Guwada' in question and in view of these circumstances any agreement to sale alleged to have been executed by him in favour of the plaintiffs was of no consequence. A perusal of the order of the lower Appellate Court clearly goes to show that it did not apply its mind to the merits of the case nor set aside the finding of issue Nos. 1 & 2 recorded in favour of the defendants. The lower Appellate Court without setting aside the finding of issue Nos. 1 & 2 had no justification to allow the amendment in the plaint and to set aside the judgment and decree of the trial court simply on the ground that the two sale deeds were subsequently executed by Ram Chander on July 28. 1988 in favour of the plaintiffs. 1 & 2 had no justification to allow the amendment in the plaint and to set aside the judgment and decree of the trial court simply on the ground that the two sale deeds were subsequently executed by Ram Chander on July 28. 1988 in favour of the plaintiffs. The lower Appellate Court could not have allowed any amendment unless it had set aside the finding of issue Nos. 1 & 2 and held the same in favour of the plaintiffs. As already mentioned above the trial court had clearly recorded a finding that Ram Chander was not the owner and in possession of the 'Guwada' in question and as such any agreement to sale made by him in favour of the plaintiffs was of no avail. 6. In the result, this appeal is allowed, the order of the learned Additional District Judge, Kishangargbas dated November 8, 1988 is set aside and the case is remanded back to him with a direction to decide the appeal on merit. The appellate court would be free to consider the request of the plaintiffs for amendment in the plaint in case the finding on issue Nos. 1 & 2 is given in favour of the plaintiffs. Any observations made by this court in deciding the present appeal would not affect the decision of the appeal on merits by the lower appellate court.Appeal Allowed, Case Remanded. *******