JUDGMENT RAGHUBIR DASH, J. 1. Being aggrieved, the appellant, who is the plaintiff before the learned trial court and respondent before the learned lower appellate court has preferred this appeal challenging the judgment dated 16.03.2000 passed by the learned appellate court (Civil Judge, Senior Division, Rayagada) in Title Appeal No. 2 of 1995 reversing the judgment and decree of the learned Civil Judge (Junior Division), Rayagada in T.S. No. 4 of 1987 and remanding the matter to the trial court. Respondents are the defendants in the suit and appellants in the Title Appeal. 2. The appellant has filed the suit for declaration that he and his family members/agents/ servants have easementary right of way over the suit land to have ingress to and egress from his quarters standing on his plot No. 266/1816 under Khata No. 208 of Rayagada Nagar, with other consequential reliefs. According to the plaintiff the suit land is a pathway of 15 feet width connected with the P.W.D. road to its west and it is the only access from that road to the plaintiff’s quarters standing on his Plot No. 266/1816. It is also claimed by the plaintiff that not only the plaintiff and his men but also others residing in the nearby locality use the passage. The plaintiff has asserted that the suit land being in use as a pathway for last 60 years, the plaintiff has acquired easementary right of way over it. 3. Respondent No.1 State of Orissa and Respondent No. 2-P.A., ITDA, Rayagada contest the suit filing a joint written statement denying the assertions made by the plaintiff. It is denied that there are any quarters over Plot No. 266/1816. Those stand on Plaintiff’s ancestral land appertaining to Plot No. 265 which has been subsequently sub-divided into several plots. It is further alleged that during the last settlement the appellant managed to get Plot No. 266/1816 recorded in his name deleting it from Government Khata. It is also claimed that the actual passage used as approach road to the plaintiff’s houses on his ancestral land is over Plot Nos. 265/2166 and 265/2268 connecting with a public road which is to the adjourning North of plaintiff’s Plot No. 265. It is denied that the suit land is the only pathway which is being used by the plaintiff and his man for last 60 years and thereby acquiring easementary right in it. 265/2166 and 265/2268 connecting with a public road which is to the adjourning North of plaintiff’s Plot No. 265. It is denied that the suit land is the only pathway which is being used by the plaintiff and his man for last 60 years and thereby acquiring easementary right in it. Filing an additional written statement respondents/defendants have taken the stand that by virtue of a gazette notification the Government acquired Ac.34.26 of land including Plot No. 266/1816 and a portion of Plot No. 265 under Khata No. 208. After such acquisition, the plaintiff and other claimants have received the compensation. Hence, the plaintiff cannot claim any easementary right over the suit land. 4. Learned trial court decreed the suit declaring that the plaintiff has got easementary right over the suit land to use it as a passage to his quarters situate on Plot No. 266/1816. Learned lower appellate court reversing the judgment and decree of the learned trial court has remanded the suit to the trial court with a direction to frame and try the following additional issues and to decide the suit thereafter: (1) To which plot the suit land/passage belongs? (2) What is its length, breadth and extent? 5. The Plot number of the suit land is not mentioned in the plaint. It is also not claimed by the plaintiff that the suit land belongs to the defendants. Learned lower appellate court is of the opinion that the Amin Commissioner’s report is not satisfactory and that even though the plaintiff as well as the defendants sought for cross-examination of the Amin Commissioner, the learned trial court refused to accept their prayer. It is also observed by the learned lower appellate court that the report submitted by the Commissioner is beyond the writ issued by the Court and also beyond the pleadings contained in the plaint. It is of the opinion that the Amin Commissioner’s report makes the case more ambiguous inasmuch as it does not speak as to whether the suit land is a part of a plot belonging to the State Government or a part of the adjoining plot which belongs to the plaintiff. With these observations learned lower appellate court has reversed the judgment and decree of the learned trial court and remanded the suit for fresh disposal. 6. With these observations learned lower appellate court has reversed the judgment and decree of the learned trial court and remanded the suit for fresh disposal. 6. The appellant challenges the order of remand contending that in view of ample evidence available on record relating to identity and ownership of the suit land framing of any issue on that point and remanding the case for fresh hearing is illegal and not in accordance with Order 41 Rule 24 of C.P.C. It is also contended that instead of remanding the suit for fresh hearing the learned lower appellate court ought to have disposed of the appeal on merit with the evidence available on record. It is also contended that the Commissioner’s report along with record of rights, trace map and field book having been exhibited on admission, there is no need of summoning the Amin Commissioner to be cross-examined. It is also contended that the defendants have never disputed the identity of the path way which is described as the suit land. 7. Learned counsel for the appellants while arguing the case has reiterated the grounds taken in the appeal memo. It is also submitted that the impugned order of remand amounts to an open remand which is not in accordance with any of the provisions contained in Order 41 of C.P.C. Learned counsel for the State on the other hand submits that the entire findings of the learned trial court on Issue Nos. 1 and 2, decision on which fate of the suit depends, having been set aside by the learned lower appellate court, the order of remand is covered under Order 41 Rule 23-A of C.P.C. 8. Learned lower appellate court has stated in the impugned judgment that the order of remand is one under Order 41 Rule 23 of the C.P.C. But, in fact it is not covered under Rule 23 inasmuch as the learned trial court has not disposed of the suit upon a preliminary point. Learned lower appellate court has stated in the impugned judgment that the order of remand is one under Order 41 Rule 23 of the C.P.C. But, in fact it is not covered under Rule 23 inasmuch as the learned trial court has not disposed of the suit upon a preliminary point. On the other hand, the order of remand made by the learned lower appellate court framing some additional issues and directing the trial court to record evidence thereon and to dispose of the suit afresh is an order which does not come either under Rule 23-A or Rule 25 of Order 41 of C.P.C. If the learned lower appellate court wants that some issues ought to be framed but those were not framed by the trial court and the same be referred to the trial court for determination, then it should pass order in accordance with the provisions contained in Order 41 Rule 25 of C.P.C. which contemplates that the appellate court in such a case may frame issues and refer the same for trial to the trial court with direction to record additional evidence and the learned trial court on its part shall proceed to try such issues and thereafter shall return the evidence to the appellate court together with its findings thereon. After receiving the findings of the trial court on such issues the appellate court is to pronounce its own judgment in the appeal. This rule does not contemplate an open remand. An open remand is contemplated under Order 41 Rule 23-A C.P.C. under which the appellate court before going to remand the suit for retrial must record a finding that the judgment and order of the trial court are erroneous and liable to be set aside. 9. In this case the learned lower appellate court has not set aside all the findings of the learned trial court by recording its own finding that the judgment of the trial court is erroneous and liable to be set aside and a retrial is considered necessary. 9. In this case the learned lower appellate court has not set aside all the findings of the learned trial court by recording its own finding that the judgment of the trial court is erroneous and liable to be set aside and a retrial is considered necessary. But the learned lower appellate court has observed that the evidence on record is not sufficient for the identification of the suit land for which it is not possible to pass an executable decree and that both the parties having made separate prayer to cross-examine the Amin Commissioner whose report instead of giving clarity to the dispute creates ambiguity, the learned trial court ought to have allowed his cross-examination. The learned lower appellate court has not recorded its findings that the findings of the learned trial court are erroneous and the suit requires retrial. According to it, some issues have been left out by the learned trial court and evidence on those issues are required to be recorded for proper adjudication of the dispute between the parties. Under such circumstances, the appropriate order should have been one under Order 41 Rule 25 C.P.C. In that view of the matter, the open remand which is under challenge is not sustainable in law and, therefore, the impugned judgment as well as order of open remand is liable to be set aside. 10. This Court has got occasion to go through the pleadings of the parties as well as the judgments of the learned courts below. In fact, plaintiff has not mentioned the survey particulars of the suit land which he claims to have been using as a passage for about 60 years prior to filing of the suit. It is defendants’ case that the plaintiff and his men have their private road over their plot Nos. 265/2166 and 265/2268 to have approach to a public road to the north of plaintiff’s quarters/buildings. Furthermore, it is pleaded in the plaint that not only the plaintiff and his men but also other people residing in the nearby locality use the suit land as their passage and they all have acquired easementary right. Learned trial court has not considered this plea in the light of Order 1 Rule 8 C.P.C. Learned trial court has recorded its finding that there exists an alternative passage through the land covered under Plot Nos. Learned trial court has not considered this plea in the light of Order 1 Rule 8 C.P.C. Learned trial court has recorded its finding that there exists an alternative passage through the land covered under Plot Nos. 265/2166 and 265/2268 which meets with one P.W.D. road in the west. That apart, the sketch map annexed to the plaint, so also the survey settlement map of mouza Rayagada Nagar marked Ext.4, shows it clearly that plaintiff’s land over which he has constructed his quarters is adjoining to the P.W.D. road to its west. Issue No. 2 is on the availability of any other passage for plaintiff’s access to his quarters. Though the learned trial court observed that the plaintiff has got alternative access it has not decided as to what would be its effect on the plaintiff’s claim of easementary right of way over the suit land. Therefore, it can be said that the learned trial court has omitted to try Issue No. 2 which is essential to the right decision of the suit on its merits. Learned lower appellate court should, therefore, take care of this aspect and see that this issue is properly tried. 11. Since it is found that the impugned order of remand is not either under Rule 23 or Rule 23-A, nor even under Rule 25 of Order 41 of C.P.C. the same is liable to be set aside. However, it is made clear that while taking up the First Appeal for its disposal on merit if the learned lower appellate court considers it necessary to deal with the matter either under Rule 23-A or Rule 25 of Order 41 of C.P.C. then it is at liberty to do so. 12. With the aforesaid observation, the Misc. Appeal is allowed. Impugned judgment is set aside. The matter is remanded to the learned lower appellate court for disposal in accordance with law. Send back the L.C.R. along with a copy of this judgment to the learned lower appellate court.