Judgment : 1. Heard. Admit. With the consent of parties, appeal is taken up for final disposal at the admission stage. 2. The appellant is taking exception to the judgment and decree passed by the District Judge3, Nashik in Regular Civil Appeal No.1/2007 decided on 2nd May 2011. The appellants-original plaintiffs instituted suit being Regular Civil Suit No.133/2000 claiming partition and separate possession of movable and immovable properties. The plaintiff No.1 is the widow of deceased Nandkishor Gaidhani and daughter-in-law of defendant No.1Shri Damodar Govind Gaidhani. The plaintiff Nos.2 and 3 are the daughters of plaintiff No.1 out of wedlock with deceased Nandkishor Gaidhani. Defendant No.2Arvind Gaidhani is the son and defendant Nos.6 and 7, namely Usha and Mangal are daughters of defendant No.1. Defendant Nos.3 to 5 are the brothers of defendant No.1. According to the plaintiffs, deceased Nandkishor and defendant No.1 constituted a Hindu Joint Family. Nandkishor, the husband of plaintiff No.1 died on 26th January 1993. The other defendants were not maintaining the plaintiffs, as such, she was compelled to reside separately. The plaintiffs claimed partition and separate possession of the immovable property situated in villages Deolali, Lakhalgaon, Palse and Amboli as well as movable property like cash amount, ornaments etc. The defendants were served with the suit summons. They caused their appearance and resisted the suit. Defendant Nos.6 to 15 failed to file their written statement, as such, suit was proceeded ex parte against them. Defendant Nos.1 and 2 resisted the suit by filing their written statement. They admitted the relationship between the parties. However, they contended that there was love marriage of plaintiff No.1 with deceased Nandkishor and, therefore, parents of plaintiff No.1 were opposed to the said marriage and did not participate in the marriage ceremony. The plaintiff No.1 did not get Stridhan from her parental house. Defendant Nos.1 and 2 admitted death of Nandkishor, however, they denied that he was a member of Hindu Undivided Family and that suit property is joint family property. Defendant Nos.1 and 2 further admitted that deceased Mhalsabai Govindrao Gaidhani disposed of property as mentioned in Schedule-A by her last will dated 8th September 1989. However, they contended that the land at Survey No.237A/13A, 237A/14 (plot No.14) and plot No.22 as mentioned in Schedule-A is self acquired property of defendant No.1. Defendant Nos.1 and 2 further admitted that deceased Mhalsabai Govindrao Gaidhani disposed of property as mentioned in Schedule-A by her last will dated 8th September 1989. However, they contended that the land at Survey No.237A/13A, 237A/14 (plot No.14) and plot No.22 as mentioned in Schedule-A is self acquired property of defendant No.1. He has purchased plot No.14 in the year 195758 in the name of Mhalsabai and with the help of Mhalsabai constructed a building in the year 1960. Defendant No.1 has purchased plot No.22 in the year 1967 and defendant No.3 has half share in the said open plot. The defendants denied that landed property situated at village Lakhalgaon as mentioned in Schedule-B was purchased by deceased Nandkishor and defendant No.2 and, therefore, they have ½ share in the said property. Defendant Nos.1 and 2 further contended that defendant No.1 purchased the land block No. 298 in the name of his wife Lilavati and block No.303 in the name of deceased Nandkishor and defendant No.2 and, thus, this property is self acquired property of defendant No.1. It is further contended that Nandkishor was in service of private company since 1982 and he was getting monthly salary of Rs.1,500/. It is contended that Nandkishor has never contributed the amount for purchase of the property. The defendant No.1 has purchased properties in the names of his wife and sons. He purchased a landed property at village Amboli out of the amount which he received at the time of his retirement. Defendants further contended that the lands situated as village Palse is ancestral property and all the shareholders are cultivating the said land as per their shares. So far as claim in respect of share in the cash amount as well as in the ornaments is concerned, the same has been denied by the defendants. Similarly, defendant Nos.3 to 5 have also filed their written statement and contested the claim. All the defendant Nos.1 to 5 have prayed for dismissal of the suit. 3. The trial Court, after considering the evidence led by the parties decreed the suit presented by the plaintiffs. The plaintiffs are held entitled for partition and separate possession of deceased Nandkishor’s share in the property City Survey Nos.3750, 3245 and 3246 situated at village Deolali as noted in Will deed at Exh164. 3. The trial Court, after considering the evidence led by the parties decreed the suit presented by the plaintiffs. The plaintiffs are held entitled for partition and separate possession of deceased Nandkishor’s share in the property City Survey Nos.3750, 3245 and 3246 situated at village Deolali as noted in Will deed at Exh164. The plaintiffs are also held entitled for partition and separate possession of 1/3rd share in the property Survey Nos.119A/ 1, 119B/ 117, plot No. 22 to the extent of half portion situated at village Deolali; land block No.298 admeasuring 1 H. 77 R., land block No.303 admeasuring 2 H. 56 R. to the extent of 59R situated at village Lakhalaon and land block No.191B/ 1 to the extent of 2 H. 20 R. situated at village Amboli. The plaintiffs are also held entitled for partition and separate possession of 1/3rd share in defendant No.1’s s/5th share in the ancestral property land block No.1109 admeasuring 48 R., land block No.1250 admeasuring 87 R. and land block No.1339 admeasuring 1 H. 17 R. situated at village Palse. Plaintiffs’ claim in respect of movable property has been dismissed by the trial Court. 4. The defendant Nos.1 and 2, being aggrieved by the judgment and decree passed by the trial Court, preferred appeal being Regular Civil Appeal No.1/2007 which came to be heard and disposed of by the District Court, Nashik on 2nd May 2011. The first appellate Court after considering the rival contentions of the parties was pleased to allow the appeal and remitted the matter back to the trial Court with direction to the plaintiff to add one Sakhubai and legal heirs of deceased Sonubai as party defendants to the suit. It was also directed to the trial Court to decide the suit afresh in accordance with the provisions of law after impleadment of Sakhubai and legal heirs of deceased Sonubai as party defendants. 5. The judgment and decree passed by the first appellate Court is subject matter of challenge in this appeal from order. The only substantial questions of law that arise for consideration are: (1) whether the first appellate Court was justified in remitting the matter back to the trial Court for reconsideration when neither of the defendants raised the issue as regards the nonjoinder of the necessary parties to the suit? The only substantial questions of law that arise for consideration are: (1) whether the first appellate Court was justified in remitting the matter back to the trial Court for reconsideration when neither of the defendants raised the issue as regards the nonjoinder of the necessary parties to the suit? and (2) whether the order passed by the first appellate Court remitting the matter back to the trial Court is in conformity with the provisions of order 41 rule 23 of Code of Civil Procedure, 1908 (C.P.C.)? 6. I have perused the judgment and decree passed by the first appellate Court and heard arguments advanced by the respective counsel appearing for the parties. 7. The first appellate Court has referred to the cross-examination of plaintiff No.1 at page 121 and observed that defendant No.1 had two real brothers and one step brother and two sisters. The immovable properties situated at village Palse is joint family property and sisters of defendant No.1 will have a share in the property. It is further observed that the trial Court has committed an error in passing decree in favour of the plaintiffs in the absence of Sakhubai and legal heirs of deceased Sonubai. In substance, the first appellate Court proceeded to hold that the suit is bad on account of nonjoinder of necessary parties. From the pleadings of the suit made available by the parties, it is clear that none of the defendants have resisted the suit on the ground of nonjoinder of the necessary parties. It was disclosed to the Court that defendant No.1 had two sisters one Sakhubai and other Sonubai who is already dead. In the absence of there being any objection of nonjoinder of the necessary parties either in the written statement or having been raised before the first appellate Court in the memo of appeal, the first appellate Court, in my opinion, has erred in allowing the appeal and directing the plaintiff to implead Sakhubai and legal heirs of deceased Sonubai as party defendants to the suit. The first appellate Court overlooked the fact that the trial Court while ascertaining the shares admissible to the parties has taken into consideration the share which can be allotted to Sakhubai as well as legal heirs of deceased Sonubai. This aspect of the mater has been considered by the trial Court while ascertaining the share allotable to the plaintiffs. The first appellate Court overlooked the fact that the trial Court while ascertaining the shares admissible to the parties has taken into consideration the share which can be allotted to Sakhubai as well as legal heirs of deceased Sonubai. This aspect of the mater has been considered by the trial Court while ascertaining the share allotable to the plaintiffs. I have made a specific query to the counsel appearing for the parties as to whether impleadment of Sakhubai and legal heirs of deceased Sonubai is likely to affect the ascertainment of share as has been done by the trial Court. However, counsel for the parties have fairly stated before me that there would be no change in the share which can be allotted to the plaintiffs in spite of inclusion of Sakhubai and legal heirs of deceased Sonubai. Thus, in my opinion, the first appellate Court was not justified in remitting the matter back to the trial Court in absence of there being any objection by any of the defendants as against nonimpleadment of the necessary parties to the suit. The final outcome of the suit is also not likely to be affected as a result of non-inclusion of Sakhubai and legal heirs of deceased Sonubai. 8. The order passed by the first appellate Court remitting the matter back to the trial Court is also not in consonance with the principles laid down in rule 23 of order 41 of C.P.C. The appellate Court should avoid unnecessary remand to the trial Court which unnecessarily exhausts time and puts the parties to the hardship of facing prosecution for years together. In the instant matter, in my opinion, there is absolutely no need to remand the matter to the trial Court and the first appellate Court could have decided the controversy after going through the record and the evidence placed by the parties. It is also to be noted that the first appellate Court has all the powers which the trial Court has and the first appellate Court could have exercised such powers for putting an end to the controversy. 9. This appeal from order, therefore, succeeds and stands allowed. It is also to be noted that the first appellate Court has all the powers which the trial Court has and the first appellate Court could have exercised such powers for putting an end to the controversy. 9. This appeal from order, therefore, succeeds and stands allowed. The order passed by the District Judge3, Nashik in Civil Appeal No.1/2007 decided on 2nd May 2011 is quashed and set aside and the matter is remitted back to the first appellate Court with direction to deal with the appeal in accordance with the provisions of law and in consonance with the observations made in this judgment. Considering the pendency of the matter for a long duration, it would be proper for the first appellate Court to decide the appeal as expeditiously as possible, preferably, within a period of six months from the date of receipt of writ of this order. In the facts and circumstances of the case, there shall be no order as to costs. 10. In view of disposal of this appeal, pending civil applications do not survive and stand disposed of accordingly.