JUDGMENT : Heard learned counsel for the appellants. 2. The appellants have filed this appeal being aggrieved by the Judgment and decree dated 24.03.2003 passed by the Additional Judicial Commissioner, Ranchi in Title Appeal No.25 of 1995 whereby and where under the learned court below has set aside the judgment and decree of the trial court and remanded the suit back to the learned trial court for getting encroachment, if any, measured afresh and also for adjudicating the controversy as per the provision of law. 3. The case of the plaintiff in brief is that the plaintiff acquired the suit property appertaining to Plot no. 799, Khata No.207 part of village Sirarawn from Ram Sewak Pandey by virtue of the registered sale deed dated 22.06.1966 and after purchase, the plaintiff came in possession of the same. The plaintiff constructed a house over a portion of the land and the rest portion was kept vacant. It is the further case of the plaintiff that one Raj Karan Singh illegally acquired plot No.798 which is adjacent east to the plot No.799 by a collusive title suit which was compromised in 1968. The said Raj Karan Singh transferred a portion of plot No.798 to the defendant by virtue of a registered sale deed dated 30.09.1980 and after purchase, the defendant came in possession of the plot bearing plot No.798. It is also the case of the plaintiff that the defendant encroached upon the land of the plaintiff situated adjacent west of the property of the defendant in October, 1980. The encroached part of the land has been shown in green wash in sketch map attached to the plaint. The plaintiff protested the encroachment but the defendant did not remove the encroachment. The plaintiff sent notices through his lawyer to the defendant still the defendant did not remove the encroachment. 4. The case of the defendant, on the other hand is that the plaintiff has no title over any portion of the suit land. The vendor of the plaintiff- Ram Sewak Pandey had never any title or possession over any portion of the suit property. Hence, no right or title has accrued to the plaintiff by the sale deed executed by Ram Sewak Pandey in favour of the plaintiff. The vendor of the plaintiff- Ram Sewak Pandey had never any title or possession over any portion of the suit property. Hence, no right or title has accrued to the plaintiff by the sale deed executed by Ram Sewak Pandey in favour of the plaintiff. Raj Karan Singh- the vendor of the defendant, before the alleged acquisition of the land by the plaintiff constructed a residential house on an area of about 0.07 acre of plot No.798 towards its southern side and had enclosed the same by a boundary wall all around including the land in south within the knowledge of all concerned in or about the year 1968 without any objection from any quarter and remained in sole and exclusive possession thereof till the same was sold to the defendant by virtue of sale deed dated 01.10.1980. Raj Karan Singh acquired title over the lands by long and continuous adverse possession which was duly acknowledged and recognized by a compromise in Title Suit No.1450 of 1967 of the court of Munsif, Ranchi. It was denied by the defendant that the said suit was a collusive one or that a compromise decree passed in the suit was illegal or in contravention to the provision of law. It was asserted by the defendant that the defendant has all along been in possession of the land right from the date of its purchase without any obstruction from any quarters and the sketch map showing the alleged encroached portion of the land in green wash was an imaginary one. 5. On the basis of the rival pleadings of the parties, learned court below framed the following issues:- I. Has the plaintiff any valid cause of action for the suit? II. Is the suit as framed, maintainable? III. Is the suit barred by law of limitation, waiver, acquiescence, estoppel? IV. Is the suit barred by law of adverse possession? V. Has the plaintiff or his vendor any title over the suit land? VI. Has the defendant made any encroachment over suit land belonging to plaintiff? VII. Whether the plaintiff is entitled to a decree as prayed for? VIII. To what other relief or reliefs the plaintiff is entitled to? 6. The learned trial court after considering the evidence in the record, observed that the defendant has not filed any chit of paper to show her title over the plot No.799. VII. Whether the plaintiff is entitled to a decree as prayed for? VIII. To what other relief or reliefs the plaintiff is entitled to? 6. The learned trial court after considering the evidence in the record, observed that the defendant has not filed any chit of paper to show her title over the plot No.799. The learned trial court also considered that she has specifically admitted in her cross-examination that the land which her mother purchased, is 7 decimals in area but failed to say the length and width of that land and also observed that the defendant has not adduced any evidence regarding her plea of adverse possession and this plea of adverse possession indicated encroachment of plot No.799 by the defendant. The learned court below considered Exhibit F/1 which is the report submitted by Shri G.C. Mukherjee, who was appointed as a Pleader Commissioner during the trial of the suit to make local inspection where in para-6 Mr. G.C. Mukherjee mentioned that the plaintiff has no claim over plot No.798 and the defendant has no claim over plot No.799 and that Mr. G.C. Mukherjee found the defendant in occupation of 9 decimals 20 ft. whereas she purchased only 7 decimals of land in plot No.798 and also considered that it is not the case of the defendant that she is in possession of more than 7 decimals of land in plot No.798 and concluded that the defendant has encroached over the suit land and the plaintiff and his vendor has valid title over the suit land including the rest portion of the suit land purchased by the plaintiff and the suit is not barred by law of adverse possession and further found that the defendant has encroached over the suit land belonging to the plaintiff and the defendant has failed to prove that she has adverse possession over the suit land. The trial court disposed of issue No.3 as not pressed by the parties and on the basis of the findings of the issue Nos.4, 5 and 6, the learned trial court came to a conclusion that the plaintiff has valid cause of action for the suit and the suit as framed, is maintainable. The trial court disposed of issue No.3 as not pressed by the parties and on the basis of the findings of the issue Nos.4, 5 and 6, the learned trial court came to a conclusion that the plaintiff has valid cause of action for the suit and the suit as framed, is maintainable. Hence, the plaintiff is entitled to the decree as prayed for and went on to decree the suit of the plaintiff on contest and directed the defendant to remove the encroachment made by her on the suit land and hand over the vacant possession of the same to the plaintiff within sixty (60) days. Being aggrieved by the said judgment and decree of the trial court, the defendant preferred an appeal which was heard and decided by the impugned judgment. 7. The learned first appellate court observed that Ext. F/1 that is the report of Survey knowing Pleader Commissioner, Mr. G.C. Mukherjee shows that the defendant has not encroached upon any land but the report of Jagdanad Pandey, marked Ext.2 shows that an area measuring 75 links x 13.50 links of plot No.799 has been encroached by the defendant but the same has not been substantiated by the evidence adduced on this behalf by the said Jagdanand Pandey who has been examined as P.W.4. Hence, there is no basis to justify the decree in favour of the plaintiff in toto. Further, the learned first appellate court observed that the opinion of P.W.4, P.W.5 and D.W.10 are not acceptable. The learned first appellate court concurred with the finding of the trial court regarding issue Nos.1, 2, 3 and 4 but concluded that the judgment and decree in appeal are not sustainable and hence, set aside the same and remanded the suit back to the learned trial court for getting the encroachment, if any, measured afresh and also for adjudicating the controversy as per the provision of law. 8. Mr. A. K. Srivastava, the learned counsel for the appellants, submits that the learned first appellate court erred by setting aside the judgment and decree of the trial court and acted illegally remanding the suit to the trial court. Mr. 8. Mr. A. K. Srivastava, the learned counsel for the appellants, submits that the learned first appellate court erred by setting aside the judgment and decree of the trial court and acted illegally remanding the suit to the trial court. Mr. Srivastava drew the attention of this Court to the judgment of Hon’ble Supreme Court of India in the case of J. Balaji Singh versus Diwakar Cole and Others reported in (2017) 14 SCC 207 wherein the Hon’ble Supreme Court of India has discussed the provisions in the Code of Civil Procedure with respect to power of the appellate court to remand the case to the trial court in paragraph-14, 16 and 17 which is as under:- 14. “There are three provisions in the Code which deal with the power of the appellate court to remand the case to the trial court. These provisions are Order 41 Rules 23, 23-A and 25: 14.1. So far as Order 41 Rule 23 is concerned, it enables the appellate court to remand the case to the trial court when it finds that the trial court has disposed of the suit upon a preliminary point. The appellate court in such cases is empowered to direct the trial court to decide all the issues on evidence on record. 14.2. So far as Rule 23-A is concerned, it enables the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all the issues but on reversal of the decree in appeal, a retrial is considered necessary by the appellate court. 14.3. So far as Rule 25 is concerned, it enables the appellate court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the trial court. The appellate court in such case may, accordingly, frame the issues and refer the same to the trial court to take the evidence and record the findings on such issues and return to the appellate court for deciding the appeal. In such cases, the appellate court retains the appeal to itself. 16. In our considered view, the only error which the first appellate court committed was that it went on to record the findings on merits. In such cases, the appellate court retains the appeal to itself. 16. In our considered view, the only error which the first appellate court committed was that it went on to record the findings on merits. In our view, it was not necessary to do so while passing the order of remand. The reason is that once the first appellate court formed an opinion to remand the case, it was required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the trial court to decide the case on merits. Therefore, there was no need to discuss much less record findings on several issues on merits. It was totally uncalled for. 17. So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first appellate court and restored the judgment of the trial court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law, then it could only remand the case to the first appellate court with a direction to decide the first appeal on merits.” (Emphasis Supplied) 9. It is further submitted by Mr. A.K. Srivastava that admittedly the suit has not been disposed of upon the preliminary point so certainly Order XLI Rule 23 of the Code of Civil Procedure is not applicable to the facts of the case. It is further submitted by Mr. It is further submitted by Mr. A.K. Srivastava that admittedly the suit has not been disposed of upon the preliminary point so certainly Order XLI Rule 23 of the Code of Civil Procedure is not applicable to the facts of the case. It is further submitted by Mr. Srivastava, the learned counsel for the appellants that the learned first appellate court has not assigned any reason whatsoever as to any justification for the necessity of retrial and since the first appellate court has not framed any issue so Rule 25 of Order XLI of the Code of Civil Procedure is also not applicable in the case as without meeting the requirement of any of the three provisions in which the appellate court has the power to remand the case to the trial court having being fulfilled the impugned judgment of the first appellate court is illegal and be set aside. Mr. A.K. Srivastava further relied upon the judgment of Hon’ble Patna High Court in the case of Ram Vinod Roy & Another versus Mostt. Ram Sumari Devi & Others reported in 2004 (2) PLJR 755 wherein the Hon’ble Patna High Court in the facts and circumstances of that case where the suit was instituted for removal of the encroachment allegedly by the defendant and the first appellate court in that case dealt with the discussion in the impugned judgment of the trial court, the Hon’ble Patna High Court held in para-9 as under:- 9. “Applying the aforesaid principles to the facts and circumstances of the present case, it appears to me that the Pleader Commissioner’s report and the objection of the parties thereto constitute only one piece of evidence on the main issue which arises for adjudication in the suit, namely, whether or not the defendant has encroached the lands of the plaintiffs, apart from other evidence that the parties have led in support of their respective cases. Consideration of the said piece of evidence along with objection may have been done in a perfunctory manner by the trial court, or at worse may be a case of non-consideration of the same, but the same cannot be a ground for remand. It is the duty of the lower appellate court, being a court of facts, to re-appraise the entire evidence available on record and come to its independent conclusions, completely unmindful of the judgment of the trial court. It is the duty of the lower appellate court, being a court of facts, to re-appraise the entire evidence available on record and come to its independent conclusions, completely unmindful of the judgment of the trial court. In that view of the matter, I am of the view that the impugned judgment is bad in law and is a fit to be set aside.” (Emphasis Supplied) 10. Mr. A.K. Srivastava further submitted that it is not the case that any of the parties have sought indulgence of the first appellate court for adducing additional evidence and that the parties were fully conversant of their respective case and they have adduced evidence as they found proper so it was incumbent upon the first appellate court to come to his own independent conclusion on the evidence for himself after arriving at the necessary finding of facts if the first appellate court was dissatisfied with the view taken by the trial court. Mr. A.K. Srivastava further submits once the first appellate court made up his mind to remand the suit back to the trial court; it committed an error by recording its finding on issue Nos. 1 to 4. Hence, it is submitted that the impugned judgment and decree passed by the first appellate court be set aside and the first appellate court be directed to dispose of the appeal on its own merit basing upon the evidence available on record. 11. No one turns up on behalf of the respondent in-spite of repeated calls. 12. Having heard the learned counsel for the appellants and after going through the record, the only point for determination in this appeal is “Whether the learned first appellate court was proper in remanding the suit back to the trial court?” It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Ashwinkumar K. Patel versus Upendra J. Patel & Others reported in 1999 (3) SCC 161 that the appellate court should not ordinarily remand a case merely because it considered the reasoning of the lower court to be wrong. Remand of a case causes delay and prejudice to the involved parties. Thus, when material is available before the appellate court it should exercise its own judgment and decide the appeal. In the case of K. Krishna Reddy & Others versus The Special Dy. Remand of a case causes delay and prejudice to the involved parties. Thus, when material is available before the appellate court it should exercise its own judgment and decide the appeal. In the case of K. Krishna Reddy & Others versus The Special Dy. Collector, Land Acquisition Unit II, LMD Karimnagar, A.P. reported in AIR 1988 SC 2123 , the Hon’ble Supreme Court of India observed that the appellate court should not exercise the power of remand lightly unless the award is unintelligible. The Hon’ble Supreme Court of India in its decision in the case of Bechan Pandey and others v. Dulhin Janki Devi and others reported in AIR 1976 SC 866 has held that where more than 25 years have lapsed since the institution of the suit and many if its original plaintiffs and defendants have died, the case should not be remanded to the trial court. Keeping in view the aforesaid principle of law, perusal of the record reveals that the first appellate court itself was not certain whether there was any encroachment or not. Neither of the parties sought indulgence of the first appellate court to adduce any additional evidence. Under such circumstances, this Court is of the considered view that the first appellate court certainly erred in setting aside the entire judgment and decree of the trial court and remanded the suit back to the trial court for the purpose of getting the encroachment, if there is any, measured afresh because mandate given to the trial court by the impugned judgment is also vague as no issue has specifically been framed by the appellate court. Further the first appellate court certainly erred by giving its finding on issue Nos. 1 to 4 when it was setting aside the judgment and decree and remanding the suit back to the trial court. It is certainly the duty of the first appellate court when the suit is not disposed of on a preliminary point to deal the appeal on its own merit by making any independent appreciation of the evidence in record. 1 to 4 when it was setting aside the judgment and decree and remanding the suit back to the trial court. It is certainly the duty of the first appellate court when the suit is not disposed of on a preliminary point to deal the appeal on its own merit by making any independent appreciation of the evidence in record. The fact that the first appellate court did believe the testimony of one or the other witness or one or other document is certainly is not a ground for the appellate court not doing its own duty of disposing the appeal on its own merit and to remand it and amounts merely to shifting the work of the first appellate court to somebody else. Hence, I am of the view that the impugned judgment is bad in law and is fit to be set aside. 13. In the result the impugned Judgment and decree dated 24.03.2003 passed by the Additional Judicial Commissioner, Ranchi in Title Appeal No.25 of 1995, by the first appellate court is set aside. The Title Appeal No.25 of 1995 is remanded back to the first appellate court with a direction to dispose of the appeal on its own merit. It is made clear that this Court has not expressed any opinion on the merits of any of the issues involved in the suit. Keeping in view the appeal is a year old one; the first appellate court will do well to dispose of the appeal expeditiously preferably within a period of six months from the date of receipt of this judgment. In the result, this appeal is allowed but in the circumstances without any costs. 14. Let the Lower Court Record be sent back to the learned first appellate court along with a copy of this Judgment forthwith. Appeal allowed.