JUDGMENT - H. SURESH, J.:---Both these appeals can be disposed of by this common judgment. 2. The first appeal is by the original defendant and the second appeal is by the original plaintiffs, both being against an order dated November 27, 1984, passed by the Second Extra Assistant Judge at Ahmednagar. The relevant facts are as follows : The plaintiffs filled a suit being suit No 345 of 1972 in the Court of 3rd Joint Civil Judge, Senior Division, Ahmednagar for an injunction restraining the defendants from committing trespass on the suit property viz., a room called Cinema Room shown by the letters HIJK in the plan attached to the plaint and also the open space in front of the constructed portion marked by the letters FGHIJ as shown in the map and also a representatives' room as referred to in para 2 of the plaint and for certain other consequential reliefs. 3. The plaintiffs suit proceeded on the assumption that they were in possession of the suit property referred to above as on the date of the suit and consequently on the strength of their possession they sought for the reliefs of injunction as mentioned in the plaint. The plaintiffs are the owners of the property while the defendants are the tenants in respect of certain area which is demised to them. It is the case of the defendants that even the areas shown as suit property in this suit are also demised to them. 4. Before the suit reached for hearing issues were raised. In that there were objections on the part of the defendants. At a certain stage the matter had come up to the High Court in C.R.A. No. 306 of 1977. In that, the scope of the suit was clarified as follows: "Heard the Counsels of both the parties yesterday and today, Shri Abhyankar the Counsel for the respondents states that the plaintiff's have claimed injunction on the basis of their lawful possession of the suit property and not on the basis of the title. In view of this clarification Shri Kapadia does not press the application for revision. Rule discharged. No order as to cost." 5. The trial Court had framed inter-alia the following issues : 1. In view of this clarification Shri Kapadia does not press the application for revision. Rule discharged. No order as to cost." 5. The trial Court had framed inter-alia the following issues : 1. Do the plaintiffs, prove their possession of the suit property marked with letters HIJK in the plan attached to the plaint and called as cinema show room as on the date of the suit? 2. Do the plaintiffs, prove their possessions as on the date of the suit of the open space in front of the canteen marked with letters FGHIJK in the plan attached to the plaint together with the passage leading to it? 3. Do the plaintiffs. further prove their possession of the rooms adjoining the passage and called as representative rooms as on the date of the suit? 4. Does the deft prove his possession exclusively on the aforesaid portions as alleged ?..." On all these issue, the trial Court answered against the plaintiffs. The trial Court came to the conclusion that the plaintiffs failed to prove their possession or the suit property as on the date of the suit. The trial Court held that for the purpose of granting a relief of injunction there must be actual possession of the suit property as on the date of the suit. The trial Court has also expressly stated in the body of the judgment that the title either by way of tenancy as claimed by the defendants or otherwise was not relevant for the purpose of deciding the actual possession, and that is now the trial Court did not go into that question. In the result, the suit was dismissed. 6. As against this judgment and order, the plaintiffs preferred an appeal being Regular Civil Appeal No. 133 of 1978. During the pendency of this appeal the appellants made an application to the Appeal Court for the purpose of amending the plaint. In the result, the suit was dismissed. 6. As against this judgment and order, the plaintiffs preferred an appeal being Regular Civil Appeal No. 133 of 1978. During the pendency of this appeal the appellants made an application to the Appeal Court for the purpose of amending the plaint. The relevant portion of the amendment is as follows : "The plaintiffs submit that in the event it transpires that the defendant has encroached and/or occupied the said premises marked HIJK in the plaint and the open ground in front of FGHIJK prior to the filling of this suit and part of the representative room, the plaintiffs submit that the said premises and the open space were never let out to the defendant and as such the user and occupation of the said premises of the defendant is unauthorised and the defendant is thus a trespasser in respect of the said premises and the open space. The plaintiff therefore, submit that they being the owners of the said premises and the open space, the subject matter of the suit, in respect of which injunctions have been prayed for the plaintiffs are entitled to actual possession of the said premises and the open space from the defendant who has no right, title or interest as a tenant to the same. Add para 6-A as follows: In the alternative the suit being for the possession on the strength of the plaintiffs' title and the market value of the properties in suit is Rs. and hence the suit is valued for Court fees and jurisdiction at Rs. for the purposes of Court fees and jurisdiction and necessary Court fee stamp is affixed to the plaint. In the para 'D' add prayer D-1. "In the event of the Court coming to the conclusion that the defendant has illegally occupied any of the premises not let out to him since prior to the filing of the suit and that on the date of the suit he was in possession of the said premises regarding which mandatory and perpetual injunction is asked for, the plaintiffs may be awarded actual possession of the said premises and the open space from the defendant." This application was opposed by the defendants. However, the trial appeal Court granted this application for amending the plaint. 7. However, the trial appeal Court granted this application for amending the plaint. 7. As against this, the defendants preferred a civil revision application to this High Court being C.R.A. No 379 of 1980. By an order dated September 30, 1980 the High Court allowed the said civil revision application and did not permit the amendment granted by the Appeal Court. 8. The plaintiffs took the matter, by way of an appeal, to the Supreme Court being C. A. No 2025 of 1981. The Supreme Court allowed the said appeal and reversed the judgment of the High Court and the Supreme Court stated as follows: "All that the plaintiff sought by way of amendment was to insert a relief for recovery of possession. Neither the nature of the suit was altered nor was there any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment arise." When the matter thus went back to the trial Court, the plaintiffs initially made an application described in this proceedings as Ex. 62, for the purpose of remanding the matter back to the trial Court. This application was opposed by the defendants and in particular they submitted that a Commissioner be appointed to estimate the true and correct value of the property to enable the Court to decide the issue of jurisdiction and court fees which application in this proceedings has been referred to as Ex. 57. In other words, the defendants had categorically submitted to the Appeal Court that is was not necessary to remand the matter back to the trial Court and they had submitted that "there is sufficient evidence on record before the appellate Court, which enable it to pronounce the judgment after resetting the issues. If necessary and finally determine the suit." The learned Judge by an order dated September 17, 1984 did not grant this application but observed as under: "Considering the direction of the Hon'ble High Court to hear the appeal as expeditiously as possible and the fact that the appeal is set down for hearing and paper book is ready. I think both these applications Exh. I think both these applications Exh. 57 and 62, should be finally disposed of while hearing the main appeal on all points to avoid any piecemeal hearing and creating further complications giving cause for further up shooting litigations to the litigants and to close the chapter once for all." He passed this order because he felt that it was premature at that stage to draw any inference one way or the other. He also felt that before my order could be passed, the Court must consider the evidence on record and it is only after the taking into account all the evidence and the material recorded, he could decide whether the case should be finally disposed of or the same should be remanded or any additional issue should be framed and referred for the trial or to take additional evidence or to require such evidence to be taken. He was right in coming to the conclusion that as he could not have referred the matter to the trial Court unless he comes to the conclusion that he was not in position to dispose of the appeal on the basis of the material that was before him. 9. The learned Judge then heard the appeal at length and framed the following points for determination: "1. Whether the appellants prove their possession over the cinema show room marked with letters HIJK in the map annexed with plaint on the date of suit? 2. Whether the appellants also prove their possession over the open ground in front of canteen marked with letters DEFG and cinema show room marked with letter HIJK in the map annexed with the plaint on the date of the suit? 3. Whether the appellants prove their possession over the passage to W.C. and Urinals and also over the rooms. i.e. representatives' rooms on the date of the suit ? 4. What is the effect of amendment to the plaint as Appellate Court." On the first three points he held in favour of the plaintiffs. However, on the last question he passed an order that the suit be remanded to the trial Court for re-trial and decision according to law. 10. 4. What is the effect of amendment to the plaint as Appellate Court." On the first three points he held in favour of the plaintiffs. However, on the last question he passed an order that the suit be remanded to the trial Court for re-trial and decision according to law. 10. The plaintiffs, therefore, filled the present appeal on the basis that the learned judge having reserved the judgment and having held that they were in possession of the suit property on the date of the suit, should have passed an order of Injunction as claimed by the plaintiffs and that there was no question of remanding the matter back to the trial Court. On the other hand, the defendants filed their appeal on the basis that the Court having passed an order remanding the matter to the trial Court for re-trial, and decision according to law could not have given any finding on merits and could not have decided the matter on the basis of the points for determination. They contend that all those findings should be set aside and the matter be remanded back to the trial Court for re-trial. 11. I may further observe that when the matter was being argued in appeal, perhaps, the defendants got an inclination that the matter might be remanded back to the trial Court and, therefore, they made no application on November 17, 1984 wherein they stated as follows : "Whereas the appellants and the respondent argued the appeal in extenso and the entire evidence adduced by the parties has been referred, to enable the Court decide the matter on merits, this Pursis is submitted on behalf of the respondent, that the contention regarding the valuation of the suit property raised by the respondent for pecuniary jurisdiction is not pressed in this appeal, in order to enable the Court to decide this matter on merits." It is therefore surprising that the parties should now take a so nersault, in that the defendant should insist on a retrial while the plaintiff should seek a decree forthwith. 12. In think, the entire matter has to be decided on first principles. If on first principles the Appeal Court was in a position to decide the appeal one way or the other could have been no question of remanding the matter back to the trial Court for any purpose. 12. In think, the entire matter has to be decided on first principles. If on first principles the Appeal Court was in a position to decide the appeal one way or the other could have been no question of remanding the matter back to the trial Court for any purpose. It is possible, during the pendency of the appeal the parties may make various applications. Therefore, when the learned Judge passed the order dated September 17, 1984, he rightly came to the conclusion that was premature at the stage. But I cannot understand how he could have passed this order of remanding the matter back to the trial Court when he expressly holds on all points in favour of the plaintiffs and comes to the conclusion that the plaintiffs were in possession of the suit property as on the date of the suit. 13. What impressed the learned Judge was that there was an amendment during the pendency of the appeal. He understood the scope of the amendment as giving rise to question of possession based on title. He thought that thereby the scope of enquiry was widened. Thereupon he came to the conclusion that there was no sufficient evidence on record to give a finding on title. What he did can be seen by quoting his own words which are as follows : "Considering the enlarged scope of enquiry and trial of the litigation, in view of the amended pleading at appellate Court, I consider that re-trial afresh is necessary to leave no further scope for any other litigation between the parties inter se." It is on this basis he passed the order for remanding the matter back to the trial Court. 14. However, after observing as above, he then considered at length the evidence and the arguments on merit the discussion of which runs through several paragraphs from para 33 onwards till paragraph 51, when he gives a positive finding in favour of the plaintiffs that they were in possession of the suit property as on the date of the suit. 14. However, after observing as above, he then considered at length the evidence and the arguments on merit the discussion of which runs through several paragraphs from para 33 onwards till paragraph 51, when he gives a positive finding in favour of the plaintiffs that they were in possession of the suit property as on the date of the suit. He then observes at para 52 as follows : "In view of the amended pleadings and enlargement of scope of the inquiry and nature of suit, this Court deems it fit in the interest of justice that the matter should be remanded back to the trial Court for afresh hearing in the light of the above observations." 15. In this the learned Judge clearly misunderstood the scope of the amendment. If one has regard of the amendment, it becomes clear that the plaintiffs had brought in, these amendments as a matter of abundant caution. The trial Court had given a finding that the plaintiffs were not in possession. It has non-suited the plaintiffs saying that they were not in actual possession of the suit property. In these circumstances, the plaintiffs sought the amendment which expressly stated that in the event it transpires" that the defendant has encroached and/of occupied the suit premises prior to the filling of the suit, then "in that event" they would ask for possession of the suit property, on the basis of their superior title and on the basis that the defendant had no right, title or interest in respect of the suit premises. It was on this basis they offered to pay the Court fees for possession at the market value of the properties. It was on this basis as an alternate relief and in the event the Court coming to the conclusion that the defendant was not in actual possession of the suit property, they sought the decree of possession. These amendments should have made it clear to the learned Judge that the relief was sought only in the event the Court were to come to the conclusion that the plaintiffs were not in possession of the suit property on the date of suit. These amendments should have made it clear to the learned Judge that the relief was sought only in the event the Court were to come to the conclusion that the plaintiffs were not in possession of the suit property on the date of suit. If the Court were to come to the conclusion that the plaintiffs were in possession of the suit property as on the date of the suit, certainly there would have been no question of granting any relief of possession the appropriate relief being one of injunction as asked for in the trial Court. That is how having misunderstood the scope of the amendment, the learned Judge then presumed that the scope of the enquiry was widened and that the matter has to be remanded back, perhaps with the laudable object that all litigations should come to end once for all. But under Order 41, Rule 23-A of the Code of Civil Procedure remand is permissible only if it is necessary in the interest of justice, and not otherwise. If an appeal can be decided on merits, there can be no question of remanding the some for any trial. Similarly, the desire of a party to remand or not to remand is of no consequence. 16. Mr. C.R. Dalvi submitted that the learned Judge has not taken the merits of the case into account. He even sought to argue on the basis of the evidence, as if this is a First Appeal. I did not permit him as I am not sitting in appeal on facts as such in facts, if on a proper analysis of the legal position, I doubt whether the defendant's appeal was technically maintainable. He is supporting the order of remand, and therefore, there is no question of defendants' filling any appeal from order, under Order 43 Rule 1 sub-rule (u). It is only the person who challenges an order of remand under Order 41, Rule 23 or Rule 23-A can file an appeal from order. The scope of such an appeal is obviously limited unlike a first appeal. Of course, the defendants are objecting to the finding given by the Appellate Court, on the three points for determination mentioned above. But those findings have not resulted in any order, or decision as such. The scope of such an appeal is obviously limited unlike a first appeal. Of course, the defendants are objecting to the finding given by the Appellate Court, on the three points for determination mentioned above. But those findings have not resulted in any order, or decision as such. It is only when the appeal results in any such decision on merits the party aggrieved gets a right to appeal, but not any first appeal, only a second appeal. 17. Mr. Dalvi submitted that the learned Judge has not decided the matter on merits. In fact it has been mentioned in the body of the judgment by the learned Judge himself that the matter has been argued at length fully on merits and he has taken into account every relevant aspect of the matter. This has been borne out by the application made by the defendants when categorically stated that the appeal has been argued in extenso and the entire evidence adduced by the parties had been referred to, to enable the Court to decide the matter on merits. This is what the Court did, and that is how the Court gave the findings. In the result, I pass the following order : Plaintiffs' Appeal No. 37 of 1986 is allowed and the appeal is remanded back to the District Court who will proceed to pass a suitable decree or order on the basis of the findings given in answer to the three points for determination referred to above. The parties to appear before the District Court on October 29, 1990, and the learned Judge will pase suitable orders in the light of the observations made above. Consequently, Appeal No 228 of 1985 is dismissed. The parties to bear their own costs in both these appeals. Order accordingly. -----