JUDGMENT : 1. This appeal is directed against the judgment of the learned Addl. District Judge, Khurda in RFA No. 10 of 2005, remanding the suit i.e. Civil Suit No. 188 of 2003 to the court of learned Civil Judge, Sr.Divn., Khurda for decision afresh after framing an additional issue and upon hearing the parties. 2. Facts necessary for the purpose are stated as under:- The appellants as the plaintiffs had filed the above noted suit for declaration of their right, title, interest and confirmation of possession along with other ancillary reliefs. It is their case that the suit land under Sabik khata No. 1399 appertaining to Sabik plot No. 39/3847 comprising an area Ac.1.640 decimals out of Ac.1.920 decimals on western side corresponding to Hal khata No. 118 appertaining to Hal plot No. 19/3019 was owned and possessed by late Krushna Mohan Pattnaik and stood recorded as such in the year 1962. After death of Krushna, his widow Netramani possessed the same. It is stated that Netramani had sold the land measuring Ac.1.920 decimals from that Sabik plot No. 30/3847 to one Gopal Chandra Pattnaik, a minor being represented by his father guardian Sarat Chandra Pattnaik by registered sale-deed dated 10.9.1997 and accordingly its possession was delivered. On 8.1.1963, Gopal Chandra Pattnaik being a minor, his father Sarat Chandra Pattnaik as his guardian sold the land to one Rama Chandra Naik by registered sale deed dated 8.1.1963 who was delivered with the possession of the land. When Rama Chandra Naik was possessing the suit land as such along with the land measuring Ac.0.280 decimals under Hal plot No. 19, he sold the same measuring an area of Ac. 1.640 decimals along with the said land of Ac.0.280 decimals to the plaintiffs by registered sale deed dated 14.12.1976. The plaintiffs claim to have been possessing the suit land since then. They also stated that although the defendant has absolutely no right, title, interest and possession over the suit land, yet she could obtain a mutation order in her favour on the ground that she had purchased the suit land from one Biswanath Mohapatra. The plaintiffs came to know about the same when there was an application for obtaining a valuation certificate for the land. It was then ascertained that the claim for the same was that one Gagan Bihari Pattnaik was the owner of the land. The plaintiffs came to know about the same when there was an application for obtaining a valuation certificate for the land. It was then ascertained that the claim for the same was that one Gagan Bihari Pattnaik was the owner of the land. It was put to auction and was purchased by Biswanath Mohapatra in the year 1958 and then to the defendant in the year 1960 and accordingly its stood mutated as it had been so claimed for the purpose. They however state that the suit plot 19/3019 does not correspond to Sabik plot No. 39 but to Sabik plot No. 39/3847 which was never the subject matter of the said certificate case. So it is stated that Biswanath Mohapatra as the vendor of the defendant had no title over the suit land and defendant thus has not been clothed with the same by the so-called sale deed in so far as the suit land is concerned. 3. The defendant in the written statement pleaded inter alia that as per 1929-30 settlement record, the land under plot no. 39 appertaining to khata No. 1402 measuring an area Ac. 1.916 decimals was recorded in the name of Gagan Bihari Pattnaik and that was put to auction in the certificate case bearing No. 1611 of 1954-55 which was later on purchased by Biswanath Mohapatra on 25.11.1958 who became the absolute owner of the same. Said Biswanath Mohapatra transferred the suit land to the defendant by registered sale deed dated 6.7.1960 and having delivered possession of the same, she has been in peaceful possession as such. It is further stated that in the revised map of the year 1911-12, plot No. 39 under khata No. 28 was a single plot comprising an area Ac. 9.776 decimals and as per 1929-30 settlement, it was divided into four plots bearing plot no. 39 under khata No. 1402 measuring an area Ac.1.916 decimals; plot no. 39/3948 under khata no. 1400 with an area of Ac. 3.600 decimals; plot no. 39/3949 under khata no. 1401 extending to area Ac. 2.340 decimals and plot no. 39/3847 under khata no. 1399 with an area of Ac. 1.920 decimals. It is alleged that Gopal Chandra Pattnaik had managed to record his name in respect of the land under plot No. 3019 under khata no. 3.600 decimals; plot no. 39/3949 under khata no. 1401 extending to area Ac. 2.340 decimals and plot no. 39/3847 under khata no. 1399 with an area of Ac. 1.920 decimals. It is alleged that Gopal Chandra Pattnaik had managed to record his name in respect of the land under plot No. 3019 under khata no. 118 by gaining over the settlement though he had no right, title, interest and possession over the same. 4. Faced with such rival pleadings, the trial court had framed in total eleven issues. So far as the controversial facts are concerned as those reveal from the rival pleadings, issue no.vi, vii and x are relevant and those are :- “vi. Whether the plaintiffs are entitled to a decree of declaration of right, title and interest over the suit property and their possession be confirmed over it? vii. Whether the defendant has acquired any right, title and interest over the suit property by way of auction sale in certificate proceeding and the mutation order in recording her name in the revenue records are wrong, illegal and void orders? x. Whether suit plot No. 19/3019 corresponds to Sabik plot No. 39/3847 or plot No.39?” 5. Before the trial court, the parties placed evidence both oral and documentary at length. The plaintiffs when examined six witnesses, the defendant has tendered evidence by examining five witnesses. Both sides have tendered documentary evidence in support of their case. The trial court rightly taking up above issues together for decision as is seen has gone for extensive examination of evidence, both oral and documentary let in by the parties and by assigning reasons, its ultimate conclusion has been that the plaintiffs have successfully proved their right, title and interest over the suit land and the defendant has failed to establish her case. It has also negated the alternative case of the defendant as advanced to have acquired right, title and interest by adverse possession. In view of above, the suit having been decreed, the unsuccessful defendant has carried an appeal. It has also negated the alternative case of the defendant as advanced to have acquired right, title and interest by adverse possession. In view of above, the suit having been decreed, the unsuccessful defendant has carried an appeal. The appellate court going through at the rival case has come to a conclusion that the trial court ought to have been framed an additional issue as under:- “Whether the suit land was put to auction in Certificate Case No. 1611/54-55 started against Gagan Bihari Pattnaik, S/0-Dadhibaban Pattnaik and in the said auction Biswanath Mohapatra, S/o-Ananada Mohapatra purchased the same on 25.11.1958 as an auction purchaser and the latter was in possession of the same and had any right to alienate the suit land in favourof the defendant under registered sale-deed No. 6516, dt. 6.7.1960?” Therefore, the lower appellate court has gone to remand the suit for fresh disposal of the same by answering the said issue as well as the other issues again after hearing the parties. 6. Learned counsel for the appellants submits that in this case, the issue as has been directed to be framed by the lower appellate court although was not that specifically framed in so many words, yet the same is implicit under the issue no. vi, vii, and x as indicated in forgoing para no. 4, which concern with the claim of right, title and interest projected by the plaintiff as well as the defendant. Thus according to him, there was absolutely no necessity for remand of the suit to frame that as an additional issue and for a decision afresh. The course adopted by the lower appellate court is said to be a faulty one deriving no support from any of the rules relating to remand as contained in Order 41 of the Code of Civil Procedure. According to him, the lower appellate court has disposed of the appeal by not discharging its duty properly being the final court of fact in judging the sustainability of the finding of the trial court on issue nos. vi, vii and x and deciding whether the judgment and decree as passed by the trial court would ultimately stand or not. Thus, instead of making any endeavour in that regard, the course so adopted is attacked to be an innovation to somehow get rid of the load of appeal on its board. vi, vii and x and deciding whether the judgment and decree as passed by the trial court would ultimately stand or not. Thus, instead of making any endeavour in that regard, the course so adopted is attacked to be an innovation to somehow get rid of the load of appeal on its board. Placing relevant paragraph of the judgment of the lower appellate court, he further contends that no justifiable reasons have been given as to why such framing of additional issue is again necessary for a just decision of the suit when that had been taken care of and the defendant having set up that had already led evidence. Therefore, he vehemently urges that the remand order as passed by the lower appellate court is unsustainable. Learned counsel for the respondent on the other hand supports the order of remand. According to him when the defendant had claimed the right, title and interest over the suit property on the basis of purchase which has flown to her vendor from that auction purchase, framing an issue on that score being essential for a just decision, it has been rightly so directed by the lower appellate court. 7. On a bare reading of the rival pleadings when the additional issue which has been directed to be framed by the lower appellate court is read with the issues which had been framed by the trial court, this Court is in agreement with the submission of the learned counsel for the appellants that the additional issue is just an elaboration of those issues and nothing new so as to even say that it had been omitted. In fact, that being the case of the defendant, under issue no. vii, it is squarely covered and that being further seen with the issue nos. vi and x, there remains no reason to hold for a moment that without framing such an issue the decision ought not to have been rendered in the suit. 8. It has been held in case of Rushi @ Rushi Behera and another vs. Madan Behera and another; 1986 (I) OLR 198:- “8. Order 41, Rule 23, CPC, provides for remand by the appellate court where the trial Court disposed of a suit on a preliminary issue. 8. It has been held in case of Rushi @ Rushi Behera and another vs. Madan Behera and another; 1986 (I) OLR 198:- “8. Order 41, Rule 23, CPC, provides for remand by the appellate court where the trial Court disposed of a suit on a preliminary issue. Order 41, Rule 25, C.P.C., authorizes remand on specific issue only where the finding on the issue is to be returned to the appellate Court for disposal. Order 41, Rule 23-A, C.P.C., envisages remand after reversal of a decree by the appellate Court. The appellate Court is required first to make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial. It should be remembered that early conclusion of a ‘lis’ on merit is the public policy. In the name of ‘ends of justice’ or ‘proper adjudication’ the appellate Court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate Court has failed to exercise the appellate power in this case. I may not be understood to express that the appellate Court has no power to remand on the facts of this case. It should have first assessed the evidence and the dealt with the finding and then given the reason why it would not be in a position to give a finding. In that case only, an order of remand may be justified. Otherwise, remand may amount to misuse of the power vested in the Court. Merely because a power is vested, the appellate Court is not to exercise it as it desires.” In case of Nishi Swain and others vs. Bikala Charan Swain; 1986 (II) OLR 654 it has been held that:- “3. Xx xx xx xx As the law stands now, power of remand is vested in the appellate Court under Rule 23, 23-A and 25 of Order 41, C.P.C. Rule 23 is not applicable to this case since the suit has not been disposed of on a preliminary issue. The consideration would have been different if remand would have been under Rule 25 which requires that the appeal shall be kept pending on an issue newly framed is to be sent back to the Trial Court for returning the finding. The consideration would have been different if remand would have been under Rule 25 which requires that the appeal shall be kept pending on an issue newly framed is to be sent back to the Trial Court for returning the finding. This is, however, a case of open remand under Order 41, Rule 23-A CPC. In a decision reported in AIR 1986 Ori. 207 (Rushi and another v. Madan Behera and another), I have expressed. “…….The appellate Court is required first to make the endeavour to answer to disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial.” I may make it clear that Order 41, Rule 23-A, CPC, should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. xx xx xx.” 9. In the instant case, therefore, the first appellate court ought to have first proceeded to examine the sustainability of the finding of the trial court on issue nos. vi, vii and x on independent examination of evidence both oral and documentary placed by the parties keeping in view the reasons which form the soul of the decision of the trial court in recording the finding. Thus no endeavour having been made in that regard there can be no conclusion that the evidence on record in the absence of such an issue would lead to a situation that there cannot be the pronouncement of judgment by not framing that as an additional issue in finally deciding the suit and rendering a just decision thereof. Even then the lower appellate court with that as an additional issue first was required to have undertaken an exercise to answer the same on the basis of evidence on record and only in the event of coming to a conclusion that some further enquiry is necessary to be made, the course of remand as passed would have been resorted to. In view of aforesaid discussion, and reasons, the order of remand as passed is held unsustainable. 10. In the wake of aforesaid, the judgment dated 23.3.2006 passed by the learned Addl. District Judge, Khurda in RFA No. 10 of 2005 is set aside. In view of aforesaid discussion, and reasons, the order of remand as passed is held unsustainable. 10. In the wake of aforesaid, the judgment dated 23.3.2006 passed by the learned Addl. District Judge, Khurda in RFA No. 10 of 2005 is set aside. The appeal is now remitted to the said court for its disposal on merit and in accordance with law after hearing the parties. Before parting, it is however made clear that whatever has been discussed and observed hereinabove shall not be taken as expressions on the merit of the competing claims of the parties for decision in the appeal and those are only for the purpose of demonstrating that no remand was required. In order to arrest the delay as the suit is of the year 2003, this Court while directing the parties to enter appearance before the said court on 20.05.2016 to receive further instruction in the matter fixing the date for hearing of the appeal by the said court, also directs that the lower appellate court would do well to dispose of the appeal by the end of August, 2016. 11. In the result, the appeal stands allowed. There is however no order as to cost.