JUDGMENT : Biswanath Rath, J. This is an Appeal under Order 43 Rule 1(U) of C.P.C. involving an order of remand by the lower appellate court arising out of R.F.A. No.2/2011 on the file of Civil Judge (Sr.Divn.), Kamakhyanagar. Plaintiffs, the contesting respondent nos.1 to 5 in the court below are the appellants in the present Appeal. Defendant no.1(a), the appellant in the court below is the contesting respondent no.1. The other respondents are proforma. 2. For the involvement of questions of law as to whether in view of interference of the lower appellate court in one of the findings of the lower court while not interfering in the findings in respect of other issues even by the trial court, if the lower appellate court was justified in remanding the Appeal of the trial court for fresh trial on all issues ? and if the remand order is in terms of Order 41 C.P.C. ?, this Court finds, there is no necessity of discussion on the facts involving the case except taking decision on the legal point and taking note of little facts whatever necessary for disposal of the issue at hand. Hence this Court proceeds as follows:- 3. Trial court involving the pleading of the parties framed the following issues :- "(I) Is the suit maintainable in the eye of law ? (II) Is there any cause of action to file this suit ? (III) Whether the suit is barred by law of limitation ? (V) Whether the plaintiff has right, title, interest and possession over the suit land ? (V) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? (VI) What other relief the plaintiff is entitled ? (VII) Whether the original plaintiff Jayakrushna Dash was possessing the suit land till 20.6.05 and has been possessed by defendants since 20.06.05 ?" 4. On the basis of pleading and analysis of the evidence; material and oral recorded therein, the trial court deciding Issue Nos.III & IV observing that the suit was in time and further also declared that the plaintiffs have right, title and interest over the disputed property thereby answering both the Issues in favour of the plaintiffs. Deciding Issue Nos.I, II, V, VI & VII consequent upon the findings involving Issue Nos.III & IV answered the Issues accordingly almost in favour of the plaintiffs. Deciding Issue Nos.I, II, V, VI & VII consequent upon the findings involving Issue Nos.III & IV answered the Issues accordingly almost in favour of the plaintiffs. The suit was thus decreed against the contesting defendant nos.1(a) and 1(b) and decreed ex parte against defendant nos.2 to 14 thereby declaring right, title and interest of the plaintiffs over the suit land, further directing the defendants to vacate the possession of the suit land with immediate effect and further restraining the defendants permanently from entering into the suit land. 5. On Appeal being filed by the judgment-debtor, the contesting defendant no.1(a) and respondent herein, the appellate authority as appearing from the judgment impugned herein in paragraph-9 framed the question as to whether in the facts and circumstances of the case, the defendants have encroached upon any portion of the plaintiffs' purchased land, that too the suit land ? Inviting statement of the respective parties on this question in paragraphs-9.1 to 9.6, the appellate court driving its attention to the measurement aspect involving the disputed land so as to come to the encroachment aspect in paragraph-9.6 ultimately observed that the relief granted by the trial court is beyond the scope of the pleadings of the plaintiffs and in the result, in paragraph-9.7 observed as follows :- "9.7-In the result the appeal is allowed. The judgment and decree of the court below are set aside. I would, however, require the trial court to depute the same or a fresh Commissioner at the instance of the plaintiffs with the following directions :- (i) The Commissioner shall vary out the measurement from fided point in existence and locate the plaintiffs' purchased land vis- -vis defendants ancestral land in connection with the suit ; (ii) If fixed point is not traceable, nor there is any survey stone available near the suit land then the measurement should be commenced from a fixed boundary line where both the parties agree with the common boundary and thereafter the Commissioner shall determine the lands of both the parties in connection with the suit ; (iii) The Commissioner shall have to find out whether the suit land is included in Hal Plot No.2255 or Hal Plot No.2258, as asked by the plaintiffs in the Court below. (iv) Thereafter, the Commissioner shall demarcate the suit land and find out as to whether defendants have encroached the suit land or any portion thereof belonging to the plaintiffs' purchased land and (v) While carrying out measurement, it is needless to mention that the Commissioner will serve notice to the parties enabling them to remain present at the time of inspection/demarcation." This order is impugned herein on the premises that for the provision contained in Order 41 of C.P.C. unless and until all the findings of the trial court were interfered with, there was no occasion on the part of the lower appellate court for remanding this matter as a whole. 6. Sri A.P. Bose, learned counsel for the appellants taking this Court to the provisions contained in Order 41 Rules 23- A, 24 & 25 contended that for the attraction of Order 41 Rule 25 of C.P.C. to the case at hand, the impugned judgment and decree become bad for the reason that firstly, the impugned judgment is passed without interference with the findings of the trial court in all Issues involved therein, further the remand order also becomes bad for the reason of not framing any Issue while remitting the matter back to the decision of the trial court. Taking to the findings of the lower appellate court and the direction part therein, Sri Bose, learned counsel for the appellants attacked the impugned judgment in two counts. On the above two counts, Sri Bose prayed this Court for remitting the matter for fresh disposal by the lower appellate court. Further Sri Bose referring to two reported decisions of this Court in Shri Mahadev Bisi & others vrs. Niranjan Bisi, 2004 2 OLR 229 and Keshab Sahu & others vrs. Nakul Sahu & others, 2017 2 OLR 82 submitted that for the support of law as well as support of the above decisions to the case of the appellants, the impugned judgment ought to be interfered with and set aside and the S.A.O. be disposed of by appropriate orders. 7. Nakul Sahu & others, 2017 2 OLR 82 submitted that for the support of law as well as support of the above decisions to the case of the appellants, the impugned judgment ought to be interfered with and set aside and the S.A.O. be disposed of by appropriate orders. 7. Sri B. Pradhan, learned counsel for respondent no.1 though did not dispute to the legal contentions raised by the learned counsel for the appellants and the application of the decisions to the case at hand yet taking this Court to the discussions of the lower appellate court in paragraph-9 more particularly contended that for the discussions therein, there appears, there is no infirmity in the impugned judgment. 8. Considering the rival contentions of the parties and particularly keeping in view the questions framed by this Court in paragraph-2, this Court must look to the legal provision involving the matter and in the process, records the provisions at Order 41 Rules 23, 23-A & 25, which read as follows :- "23.Remand of case by Appellate CourtWhere the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23-A-Remand in other cases-Where 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. 25. 23-A-Remand in other cases-Where 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. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time." Reading the provision at Rule 23, this Court finds, this is a contingency in the case of remand of the case involving a suit being disposed of on the basis of preliminary point, which is not a contingency in the case at hand. Coming to Rule 23- A, this Court finds, while the decree is reversed in Appeal and a re-trial is considered to be necessary, which action has also no application to the case at hand. Keeping in view that the decision boils down to applicability of the provision at Rule 25 of Order 41 of C.P.C., this Court now proceeds to decide accordingly. 9. Perusing the discussion in paragraph-9 and the findings and the direction in paragraph-9.7, this Court finds, in paragraphs-9 to 9.7 the lower appellate court has its intention on decision of the trial court. It is reading the whole of discussions and findings from paragraphs-9 to 9.7, this Court nowhere finds, the lower appellate court interfering with the finding on Issue Nos.III & IV and reversing the same, in absence of which direction in paragraph-9.7 was impermissible. It is reading the whole of discussions and findings from paragraphs-9 to 9.7, this Court nowhere finds, the lower appellate court interfering with the finding on Issue Nos.III & IV and reversing the same, in absence of which direction in paragraph-9.7 was impermissible. It is at this stage of the matter, this Court finds, the lower appellate court should have decided the matter in terms of Order 41 Rule 25 of C.P.C. The appellate court failing to do so, the impugned judgment and decree are not sustainable. Taking into account the decision cited by the learned counsel for the appellants in Mahadev Bisi (supra) in paragraphs-10 to 13 this Court in similar situation held as follows :- "10. Thus, in view of the above provisions of the Code of Civil Procedure and on examining the impugned judgment, I find that the learned appellate court was in error in remanding the suit in its entirety for fresh disposal though a specific issue has been framed by the lower appellate court, as it felt necessary that such issue is required to be determined for the right decision of the suit. Such procedure is not prescribed under any of the aforementioned rules. 11. Thus even though no appeal can be preferred against an order of remand under Rule 25 of Order 41 of the C.P.C. but since the impugned judgment is not strictly in accordance with Rule 25, I am inclined to entertain this appeal. 12. On hearing the parties and on consideration of the materials available on record, I find that the learned lower appellate court was correct in holding that it is necessary to find out whether the suit plot no.448/662 corresponds to the portion of plot no.448 marked 'A' in the sketch map attached to the sale deed (Ext.1) and accordingly, has framed an issue to that effect but the said Court has committed an error of law in remanding the entire suit to the trial Court for fresh disposal. 13. 13. I am, therefore, of the view that the order of remand, impugned in this appeal, should be treated as an order under Rule 25 of Order 41 of the C.P.C. I therefore direct that the appeal be retained in the learned lower appellate court and the learned trial court should try the issue framed by the learned lower appellate court in the impugned judgment, by giving opportunity to the parties to adduce evidence on the said issue and return its finding thereon and the reasons therefor, to the lower appellate court. After receiving the evidence so adduced, if any, by the parties and the findings of the learned trial court, the learned lower appellate court should hear the appeal and give a fresh judgment. This exercise should be completed within a period of six months from the date of receipt of this order by the trial court and the appeal be disposed of within three months from the date of receipt of the evidence and findings of the trial court, by the lower appellate court. The parties are directed to appear before the learned trial court on 21st April, 2004." Similarly, in the case of Keshab Sahu (supra), another Bench of this Court again in similar situation in paragrapsh-6 to 9 held as follows:- "6. Besides the power contemplated under Order 41 rule 23 & 23 A, C.P.C. a further power has also been conferred under Order 41 Rule 25 on the appellate court to frame issues and refer them for trial to the court whose decree has been appealed from, if such additional issues appear essential for just decision of the suit. The scope and ambit of the provision of remand was exhaustively dealt with in the case of Ashwinkumar K. Patel v. Upendra J. Patel and others (supra) by the apex Court. In that judgment the following observation finds place in paragraph-7. "In our view, the High Court should not ordinarily remand a case under Order-41, Rule 23, C.P.C. to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary." The same principle has also been noted by this Court in the cases of Shri Mahadev Bisi and others v. Niranjan Bisi (supra) and Sarat Chandra Sahu v. State of Orissa and another (supra) and the High Court of Bombay and the High Court of Patna in the cases of Narayan v. Malappa, (1956) AIR Bombay 246 and Delho Hansda v. Charani Hansda, (1953) AIR Patna 341 respectively. So the judicial pronouncement on the point says that where there is need for framing of additional issues for proper adjudication of the dispute between the parties, the first appellate court should normally take recourse to the provisions of Order 41 Rule 25, C.P.C. and remand the matter to the trial court to frame that specific issue and record its own finding on the issue or may direct the trial court to record the evidence of the parties on the specific issue and resubmit the matter to the first appellate court for adjudication of the issue. It is, however, clear that even if a specific issue has not been framed by the trial court, but the parties were aware of the pleadings and led evidence on that score, then the first appellate court should record its finding on the issue. 7. In the present case admittedly there was plea of the plaintiff appellants that they acquired title over the suit land not only through the unregistered sale deed but also by continuously remaining in possession over the same for a period of 30 years, hostile to the interest of others. 7. In the present case admittedly there was plea of the plaintiff appellants that they acquired title over the suit land not only through the unregistered sale deed but also by continuously remaining in possession over the same for a period of 30 years, hostile to the interest of others. This claim was denied by the defendants in the written statement. The parties were therefore, aware of the plea of adverse possession and led evidence on that score. Similarly, the execution of the unregistered sale deed and the validity thereof had been challenged by the defendants in the written statement and evidence was led on that aspect by the parties and the learned trial court decided the said controversies in Issue No.5. The evidence, the pleadings and the findings of the trial court were available before the first appellate court. So even if there was no specific issue on the above noted aspects learned first appellate court could have framed specific issues on that score and adjudicated those issues or in the worst case after framing those additional issues could have sent the matter to the trial court to record any additional evidence on those issues and to resubmit the record for final adjudication by the first appellate court. Without adopting these steps, remanding the suit to the trial court for fresh adjudication was not only against the judicial mandate recorded in the above noted cases, but also amounted to a process which would lead the case to further delay and uncertainty. 8. Regarding additional issues about the relationship of landlord and tenant and the jurisdiction of this Civil Court it was not the case of any of the parties and therefore, such additional issue was not at all necessary for proper adjudication of the suit. 9. For the aforesaid reason, the impugned order is unsustainable in law and the same is accordingly set aside. Consequently, the matter will go back to the first appellate court for fresh adjudication of the appeal on its own merit, keeping in mind the legal process and the observations noted above. 9. For the aforesaid reason, the impugned order is unsustainable in law and the same is accordingly set aside. Consequently, the matter will go back to the first appellate court for fresh adjudication of the appeal on its own merit, keeping in mind the legal process and the observations noted above. Considering the fact that the first appeal is of the year 2000, the learned first appellate court would do well to dispose of the same as early as possible, preferably within a period of six months from the date of receipt of this order." This Court here observes that both the above decisions have the direct support to the case of the appellants. 10. In the circumstance and for the support of the above two decisions and further application of the provision at Order 41 Rule 25 of C.P.C. to the case at hand, this Court finds, the impugned judgment is unsustainable in law and the same is accordingly set aside. As a consequence, the matter will go back to the First Appellate Court for fresh adjudication of the Appeal on its own merit and in terms of the legal process and the observations made herein above. In the result, the S.A.O. is allowed on contest. No cost.