JUDGMENT : 1. Heard learned counsel for the appellants, Mr. Bhaiya Vishwajeet Kumar, Advocate and learned counsel for the respondents, Mr. Anil Kumar Singh, Advocate. 2. The appellants have assailed the order of remand passed by learned appellate court vide order dated 20.02.2017 in Title Appeal No.01 of 2013 passed by learned District Judge-III, Rajmahal, which has been preferred by the plaintiffs against the judgment dated 24.01.2013 in Title Suit No.17 of 2001 passed by learned Sr. Civil Judge-II, Rajmahal whereby the suit preferred by the plaintiffs has been dismissed. Accordingly, the decree was prepared on 02.02.2013 and both have been assailed by the plaintiffs/appellants before the learned lower appellate court. The lower appellate Court after hearing the parties remanded the matter to the court below assigning the reason in paragraph Nos.-22 and 23 of the impugned judgment, which are profitably quoted here:- “22. I find that admittedly land of Jamabandi no.21 of Mouza Taljhari under P.S. Ranga stands jointly recorded as tenants-in-common in the name of Jairam Soren and Ranghu Soren son of Chuunnu Soren and Sangram Soren, Chaitan Soren. Lakhan Soren and Lodo Soren all son of Late Dhibu Soren and Ext.2 and Ext. E which are certified copy of Khatiyan of land of Jamabandi No.21 also proves this fact. I further find that plaintiffs/appellants are claiming to be having right, title and interest over the suit land on the ground that during last settlement Khatian (Parcha) was prepared as 'Kabjawari Parcha' means possession by convenience and suit land are those lands which under remark column has been shown in the name of Sangram Soren and Lakhan Soren. I also find that it has been pleaded by plaintiff in their plaint that during last Survey settlement Khatian (Parcha) was prepared as 'Kabjawari Parcha' means possession by convenience and suit land are those lands which under remark column has been shown in the name of Sangram Soren and Lakhan Soren, so I find that appellants/plaintiffs are themselves claiming the suit land on the ground that they are in possession of the suit land by convenience and not by partition by metes and bonds. I find that land of Jamabandi no.21 of Mouza Taljhari under P.S. Rang stands jointly recorded as tenants-in-common in the name of Jairam Soren and Ranghu Soren son of Chuunnu Soren and Sangram Soren, Chaitan Soren, Lakhan Soren and Lodo Soren all son of Late Dhibu Soren which are agnates from common ancestor. I find that it is established principle of law that possession by convenience is not actual partition and a partition to be effective in legal terms should be partition by metes and bonds. Here in the case in hand the appellants/plaintiffs are claiming the suit land on the ground that Sangram Soren and Lakhan Soren are the exclusive rightful title holder of the suit land as they are in possession of it. I find that since there is no evidence of partition between all six recorded tenants of land of Jamabandi no.21 of Mouza Taljhari so all the descendants of recorded tenants of land of Jamabandi no.21 of Mouza Taljhari are necessary party of the suit and in their absence no effective decree can be executed. 23. In view of discussion made above, I come to conclusion that impugned judgment and decree is not based on proper appreciation of law and appreciation of the facts of the cases and as such it cannot be allowed to stand and liable to set aside. Learned Court below has not considered the issue of non-joinder of necessary party in right prospective. I also find that without knowing the stand of all the descendants of recorded tenants it cannot be found that Chita Soren daughter of Lal Soren and Dular Soren daughter of Sagar Soren were married in Gharjamai from of marriage and defendants/respondents are possession over the suit land. So finding given by learned Court below that Lal Soren and Dular Soren daughter of Sagar Soren were married in Gharjamai form of marriage and defendants/respondents are possession over the suit land cannot be allowed to stand and liable to be set aside and it set aside. The learned Court below have dismissed the suit without considering the fact that all the descendants of six recorded tenants namely Jairam Soren, Ranghu Soren, Sangram Soren, Chaitan Soren, Lakhan Soren and Lodo Soren all son of Late Dhibu Soren are necessary party of the suit and in the absence of descendants, if any, of the six recorded tenants, the suit cannot be adjudicated. In the result, this appeal is succeeded and allowed and impugned judgment and decree passed by learned Court below is set aside. The case is remanded back to learned Court below with direction that the learned Court below will ensure that all the recorded six tenants are represented by their legal heirs and successors, if any, and decide afresh after adding all the necessary party of the suit and admitting their written statements and framing issues and if requires, the learned Court shall also take into consideration the evidences available on the record and take further evidences if the parties likes to adduce before the Court below, after the remand and pass judgment according to law and in the light of observations made in this appeal.” 3. Learned counsel for the appellants, Mr. Bhaiya Vishwajeet Kumar, Advocate has assailed the impugned order on the ground that remand is possible under order XLI Rule 23, 23A and 25 Code of Civil Procedure, 1908. Learned counsel for the appellants has submitted that this remand cannot be passed under order XLI Rule 25 CPC as there is limited remand. So far order XLI Rule 23 CPC is concerned the remand is with respect to the preliminary objection. Learned counsel for the appellants has submitted that court without assigning the reason has remanded the matter without setting aside the judgment directing the court below to ensure that all the recorded six tenants are represented through their legal heirs and successors, if any, and decide afresh after adding all the necessary party of the suit and admitting their written statements and framing issues and if requires, the learned Court shall also take into consideration the evidence available on the record and take further evidences if the parties like to adduce before the Court below, after the remand and pass judgment in accordance with law and in the light of observations made in this appeal. 4. Learned counsel for the appellants has relied upon a judgment passed by co-ordinate Bench of this Court in the case of Gaya Mahto Vrs. Leela Devi reported in 2005 (3) JLJR page 587 relying upon paragraph-8, which is quoted hereunder: “8. 4. Learned counsel for the appellants has relied upon a judgment passed by co-ordinate Bench of this Court in the case of Gaya Mahto Vrs. Leela Devi reported in 2005 (3) JLJR page 587 relying upon paragraph-8, which is quoted hereunder: “8. Assailing the impugned judgment it has been submitted by the learned counsel for the defendant-appellant that the impugned order of remand is erroneous and it is neither within Rules 23, 23-A and 25 of Order XLI of the Code of Civil Procedure and the learned appellate Court below has not recorded a finding that retrial of the suit is necessary while reversing the judgment of the trial Court. It has further been submitted that it is the cardinal principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the appellate Court because of lack of proper materials on record, then only remand can be made. It has further been contended that Rule 24 of Order XLI, CPC is applicable in the present case as the evidence of the parties was on the record to decide the matter in controversy and it was incumbent upon the appellate Court below to decide the appeal on merit. It has also been submitted that the appellate Court below should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of Order XLI, CPC as an unwarranted order of remand gives the litigation an undeserved lease of life and it should be avoided. It has further been submitted that the lower appellate Court should not have remanded this case merely because it considers the reasoning of the trial Court to be wrong or self-contradictory; and when the material was available before the lower appellate Court it should have itself decided the appeal one way or the other and it could have considered the various aspects of the case mentioned in the order of the trial Court and would have considered whether the order of the trial Court ought to be confirmed or reversed or modified. In support of his contention reliance has been placed upon the ratio of the cases of Ashwin Kumar K. Patel vs. Upendra J. Patel and others, AIR 1999 SC 1125 , Pasupuleti Venkateswarlu vs. The Motor and General Traders, AIR 1975 SC 1409 , Shrimati Kartar Devi vs. Shrimati Pramila Das, 1993 (1) PLJR 576 , Awadhesh Kumar Mishra and others vs. Sona Devi and others, 2003(4) PLJR 810 , and Kailashpati Narain Singh and others vs. Bhola Sonani and others, AIR 1980 Pat 111 . Lastly, it has been contended that the impugned judgment is, therefore, unsustainable.” 5. Learned counsel for the appellants has further relied upon a judgment passed by co-ordinate Bench in M. A. No.36 of 2003 dated 01.04.2014 paragraph-6 of which is profitably quoted hereunder :- “6. I have gone through the impugned judgment and the material placed before me. Now a days it is experienced that the first Appellate Courts instead of deciding issues involved have adopted an easier process to remand the matter back to the Trial Court for passing judgment afresh or for retrial which is not the spirit of Rule 23A, Rule 25 of Order XLI. Unless the Appellate Court finds something vital, which has not been decided by the Trial Court and the same cannot be decided by the Appellate Court because of lack of proper material on record then only remand can be justified. I do agree with the submission advanced by the learned Counsel for the appellant that the learned Addl. District Judge has not indicated whether issues framed were improper or whether additional issues are required to be framed or materials on record were lacking to decide the issue by the Appellate Court. One surprising thing is also appearing from the impugned judgment that the learned Addl. District Judge instead of remanding the case for retrial, has remanded the case back for writing a fresh judgment on the evidence and document available. I do not think that such order is sustainable in law and such order is expected to be passed by exercising appellate jurisdiction.” 6. District Judge instead of remanding the case for retrial, has remanded the case back for writing a fresh judgment on the evidence and document available. I do not think that such order is sustainable in law and such order is expected to be passed by exercising appellate jurisdiction.” 6. Learned counsel for the appellants has further placed a judgment passed by Hon'ble Apex Court in the case of Kattukandi Edathil Krishan and another Versus Kattukandi Edathil Valsan and others 2006 (9) SCC 166 and has submitted that lower appellate court ought to have considered and disposed of the appeal on the basis of available materials on record and it has become a routine affair of lower appellate Court to remand the case before the learned trial Court instead of deciding themselves. 7. Learned counsel for the respondents, Mr. Anil Kumar Singh, Advocate has submitted that the trial Court while deciding the suit has framed ten issues including the issue no. iv, which is relevant for the present appeal, which is quoted hereunder : (iv) Whether the suit is bad by non-joinder and misjoinder of parties? 8. Learned counsel for the respondents has submitted that the trial Court after hearing the parties have considered in paragraph-9 of the impugned order, that the property mentioned in the schedule belongs to Jamabandi no.21, Mouza Taljhari, area 18 bigha one katta in 31 different plots, which was recorded in the name of Grand father of the plaintiff Chetan Soren, Jairam Soren and Lodo Soren as they were own brothers and sons of late Dhibhu Soren in the last survey settlement report known as gentzer's report. 9. Learned counsel for the respondents has submitted that the suit was decided as dismissed also because of non-joinder and mis-joinder of necessary parties as apparent from paragraph-11 of the judgment of the trial Court. Learned counsel for the respondents has submitted that the learned lower appellate Court after considering the same has recorded in paragraph-22 of the impugned judgment that the plaintiffs/appellants in the court below are themselves claiming the suit land on the ground that they are in possession of the suit land by convenience and not by partition by metes and bounds. Learned counsel for the respondents has submitted that the learned lower appellate Court after considering the same has recorded in paragraph-22 of the impugned judgment that the plaintiffs/appellants in the court below are themselves claiming the suit land on the ground that they are in possession of the suit land by convenience and not by partition by metes and bounds. The Court below has further considered that Jamabandi no.21 Mouza Taljhari under P.S. Ranga stands jointly recorded as tenants-in-common in the name of Jairam Soren and Ranghu Soren, son of Chuunnu Soren and Sangram Sorean, Chaitan Soren, Lakhan Soren and Lodo Soren, all sons of late Dhibu Soren, who are agnates from the common ancestor and the learned appellate Court after considering the principal of law that possession by convenience is not actual possession and partition to be effective in legal terms should be partition by metes and bounds thus the learned appellate Court while passing the order of remand has recorded that court below (trial Court) will ensure that all the recorded six tenants are represented by their legal heirs and successor, if any, and decide afresh after adding all the necessary party of the suit and admitting their written statements and framing issues and if requires, the learned trial Court shall also take into consideration the evidence available on the record and take further evidences if the parties likes to adduce before the Court below, after the remand and pass judgment in accordance with law and in the light of observations made in this appeal. 10. Learned counsel for the respondents has submitted that such order has been passed by the learned lower appellate court under order XLI Rule 23-A CPC, which reads as follows:- “23-A. Remand in other cases.-Whether the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.” 11. Learned counsel for the respondents has thus submitted that lower appellate court has rightly remanded the matter so as to have adjudication of the title of the suit property once for all by reducing/minimising the multiplicity of the suit as other co-sharers have not been impleaded as party as such, this court may not interfere with the impugned order passed by the learned lower appellate court. 12. Heard, learned counsel for the appellants and learned counsel for the respondents, perused the materials brought on record including the judgment referred by the counsel for the appellants. From perusal of the judgment in the case of Kattukandi Edathil Krishan and another Versus Kattukandi Edathil Valsan and others 2006 9 SCC 166 (supra) where Hon'ble Supreme Court has remanded the matter on the ground, which is profitably quoted in paragraph-4 and 5 of the judgment: “4. The trial court came to the conclusion on the basis of the evidence before it that Damodaran had married Chiruthakutty and that Appellant 1 was the son from that marriage. Being aggrieved, the respondents appealed before the High Court. The High Court held that as a matter of law in the absence of proof of marriage of Damodaran with Chiruthakutty there may yet be a presumption of law regarding the marriage arising out of long cohabitation. The High Court did not itself come to the conclusion that there was no proof of marriage but was of the view that on the aspect of long cohabitation, it was necessary to remand the matter back to the trial court so as to enable the parties to “raise appropriate pleas” and to adduce additional evidence in the matter. The parties were also granted the liberty to amend the pleadings, if necessary. 5. We are of the view that the High Court misdirected itself. It should have considered whatever evidence was on record for the purpose of disposing of the appeals and either confirmed or reversed the order of the trial court after reappreciation of the evidence. Accordingly, we set aside the decision of the High Court and the matter is remanded back to it for the purpose of redetermination of the disputes between the parties. Accordingly, we set aside the decision of the High Court and the matter is remanded back to it for the purpose of redetermination of the disputes between the parties. We make it clear that we have not gone into the merits of the dispute in any manner whatsoever and it will be open to the High Court to proceed with and dispose of the appeals in such manner as it thinks fit.” 13. The judgment passed by the Hon'ble Supreme Court is not applicable in the fact and circumstance of the present case as the dispute was with regard to the validity of the marriage in that case but in the present case the dispute is with regard to the title of the land. Admittedly, as per the evidence brought on record the land belongs to common ancestor Dhibu Soren, whose all the legal heirs and successors have not been impleaded as party before the trial Court or before the appellate court nor they have been noticed by both the courts. Though the Defendants/Respondents/Appellants have stated in their written statements that the suit is not maintainable because of non-joinder and mis-joinder of necessary parties. Accordingly, the learned lower appellate court has rightly remanded the matter to the learned trial Court to implead all the necessary party of this suit having right over the suit land. The learned lower appellate court has rightly passed the order as this will minimize the multiplicity of the suit with regard to the suit land, which is Jamabandi No.21 Mouza Taljhari under P.S. Ranga, which stands in the name of late Dhibu Soren, common ancestor of the party as such, the judgment cited by learned counsel for the appellants is not applicable in the present case. So far another judgment referred by learned counsel for the appellants in the case of Gaya Mahto Vrs. Leela Devi reported in 2005 (3) JLJR page 587 is concerned the same is also not applicable in the present case as in that case the lower appellate court while remanding the case has not given any reasoning to the trial court and remanded the matter but in the present case the learned lower appellate court vide impugned order has mentioned reason, which are mentioned in paragraph-22 and 23 of the impugned order. The judgment of Smt. Manju Sinha dated 01.04.2014 passed in M. A. No.36 of 2003 also shows that co-ordinate Bench of this court has taken note of, while allowing the miscellaneous appeal, that lower appellate court has not indicated whether issue framed were improper or whether additioned issues are required to be framed or material on record were lacking to decide the issue by the appellate court rather the lower appellate court has remanded the matter to write/deliever a fresh judgment on the evidence and document available already on record. The position in the present case is different here. The learned lower appellate court has remanded the matter to the learned trial Court with explicit reasons, that learned court below will ensure that all the recorded six tenants are represented through their legal heirs and successor, if any, and decide afresh after adding all the necessary party of the suit on the basis of their written statements by framing issues and if requires, the learned Court shall also take into consideration the evidence available on the record and take further evidences if the parties likes to adduce before the Court below, after the remand and pass judgment in accordance with law and in the light of observations made in the impugned order passed by learned lower appellate court. 14. The lower appellate court while passing the impugned order has taken all such reasons and has passed an order to have a de novo trial by adding the necessary party and on the basis of their written statement and pleading the lower court shall frame issues, so as to decide the title and right with respect to land of Jamabandi No.21 Mouza Taljhari under P.S. Ranga for once and for all. 15. In my view the impugned order of remand does not suffer from any illegality/irregularity or infirmity warranting interference by this Court rather the learned lower appellate court has passed a reasoned order so as to decide the suit once and for all between the parties. 16. Accordingly, the miscellaneous appeal preferred by the appellants being devoid of merit is accordingly dismissed. 17. 16. Accordingly, the miscellaneous appeal preferred by the appellants being devoid of merit is accordingly dismissed. 17. The learned trial Court is directed to act in accordance with law after adding all the necessary parties of the suit, giving opportunity to them to file written statement, framing issues, recording evidence and decide the issue once for all so as to decide the title and right with respect to land of the parties. 18. I. A. No.5357 of 2019 preferred under order XXXIX rule 1 read with section 151 CPC preferred by the appellants become infructuous. 19. Accordingly, I. A. No.5357 of 2019 is hereby dismissed. 20. All the contesting parties are at liberty to raise the points available with them so as to decide the suit once and forever by minimize the multiplicity of the suit with respect to title and right over the suit land.