JUDGMENT : Rajeev Kumar Shrivastava, J. 1. This Misc. Appeal has been filed by the appellant under Order 43 Rule 1(u) of Code of Civil Procedure 1908 (for brevity "CPC") challenging the judgment and decree of remand dated 23/7/2019 passed by Third Additional District Judge, Ganj Basoda, District Vidisha in Civil Appeal No. 1/2016, thereby the judgment and decree dated 24/11/2015 passed by Civil Judge, Class-I, Ganj Basoda, District Vidisha in Civil Suit No. 143-A/2014 has been reversed and the matter has been remanded back to the trial Court to decided the suit afresh. 2. Brief facts of the case are that respondents No. 1 to 3/plaintiffs had instituted a civil suit for declaration of title, partition and separate possession with regard to agricultural land Survey No. 49/1 area 0.941 hectare, out of area 1.000 hectare, situated in Village Bharnakheda, Tahsil Shamshabad, District Vidisha. It was pleaded in the plaint that the plaintiffs are daughters of Deviram, who had two sons, namely, Banwari and Narayan Singh. Banwari is defendant No. 1 and Narayan Singh has died, whose legal heirs are the defendants 5 to 9. Deviram was bhumiswami of the land Survey No. 41/1 area 0.165 hectare, Survey No. 49/1 area 1.000 hectare, Survey No. 165/1 area 0.083 hectare and Survey No. 182/1 area 0.031 hectare, total area 1.279 hectare situated in Village Bharnakhedi, Tahsil Shamshabad, District Vidisha. After death of Deviram, plaintiffs and defendants got one fifth share each and their names were mutated accordingly in the revenue papers. The defendant Banwari and deceased Narayan Singh got the partition done on 'panji' fraudulently leaving aside the plaintiffs without there being any consent of the plaintiffs, and later on, refused to give agriculture produce against the share of plaintiffs. Thereafter, plaintiffs came to know that Narayan Singh, without any exclusive right, had sold area 0.941 hectare of Survey No. 49/1 to appellant/defendant No. 7-Kalpana, whereas against his share, he had only 0.255 hectare of land, and therefore Narayan Singh has no right to sell the property of more than his share. The plaintiffs are having share of an area 0.766 hectare out of total area 1.278 hectare and are entitled for declaration and possession after partition of land. The plaintiffs are having share of an area 0.766 hectare out of total area 1.278 hectare and are entitled for declaration and possession after partition of land. The plaintiffs also prayed that the sale deed executed by Narayan Singh is null and void to the extent of share of plaintiffs and defendant No. 7 be restrained from alienating the land and from getting her name mutated. 3. The defendants/respondents No. 5 to 9 and 10, despite service of summons, did not file written statement and were proceeded ex-parte. Appellant/defendant No. 7 appeared and filed written statement denying the plaint allegations and contended that after death of Narayan Singh, name of legal representatives were mutated, thereafter with the consent of plaintiffs, partition between the defendant No. 1 and Narayan Singh was done on mutation panji, which also bears thumb impression of the plaintiffs. Banwari and deceased-Narayan Singh, after having received entire consideration of Rs. 1,80,700/-, sold an area 0.941 hectare and delivered possession to appellant/defendant No. 7 vide registered sale deed dated 19/5/2008 and this fact had been in the knowledge of plaintiffs but plaintiffs did not challenge the same after year 2008 onwards, therefore, the civil suit being barred by time deserves to be dismissed. Defendants No. 5 to 9 with collusion of plaintiffs had instituted a civil suit for permanent injunction and again the plaintiffs with collusion of defendants No. 5 to 9 have instituted the present suit. On the aforesaid inter alia contentions, the suit was prayed to be dismissed. 4. On the basis of pleadings, trial Court framed issues and recorded evidence of parties. Thereafter, trial Court heard arguments of both the parties and dismissed the suit after recording findings against the plaintiffs regarding cause of action and limitation vide judgment and decree dated 24/11/2015. 5. Against judgment and decree dated 24/11/2015, the plaintiffs/respondents No. 1 to 3 preferred Civil Appeal before the lower Appellate Court. Upon service of notice, the appellant/defendant No. 7 supported the judgment and decree of trial Court and prayed for dismissal of the appeal. The Appellate Court, after hearing parties but without considering the merits of the case, allowed the appeal and set aside the judgment and decree dated 24/11/2015 and remanded the matter to the Trial Court for deciding the suit afresh on merits. Being aggrieved, the appellant/defendant No. 7 had preferred this Misc. Appeal. 6. The Appellate Court, after hearing parties but without considering the merits of the case, allowed the appeal and set aside the judgment and decree dated 24/11/2015 and remanded the matter to the Trial Court for deciding the suit afresh on merits. Being aggrieved, the appellant/defendant No. 7 had preferred this Misc. Appeal. 6. Learned counsel for the appellant/defendant No. 7 has submitted that the judgment and decree of remand passed by the Appellate Court is illegal, arbitrary and contrary to the provisions of law, facts and evidence. The Court below has committed substantial error in holding that no injunction can be granted. It is also submitted that it is settled law that during pendency of civil suit nature of the property cannot be permitted to be changed. The plaintiffs have played fraud in obtaining the partition order without any information to the appellant, therefore, they cannot be permitted to raise construction. If the construction is allowed to be raised on the property then certainly irreparable loss would be caused to the appellant. Balance of convenience is also in favour of the appellant. Hence, requested to allow the appeal. 7. Per Contra, learned counsel for the respondents has opposed the submissions of learned counsel for the appellant/defendant No. 7 and has supported the impugned judgment. It has been submitted that the Appellate Court was justified in setting aside the judgment and decree of the Trial Court and remanding the case to the Trial Court for decision afresh. Learned counsel has also contended that the Appellate Court is vested with the jurisdiction under Rule 23-A of Order 41 CPC to remand the case to the Trial Court if it finds necessary that re-trial is necessary. To buttress his submissions, learned counsel for the respondents placed reliance on the judgments of the Hon'ble Apex Court in Union of India vs. K.V. Lakshman [ (2016) 13 SCC 124 ]; J. Balaji Singh vs. Diwakar Cole [ AIR 2017 SC 2402 ] and, Uttaradi Mutt vs. Raghavendra Swamy Mutt [ (2018) 10 SCC 484 ]. 8. Learned counsel for the appellant/defendant No. 7, in order to support his contentions, has placed reliance on the judgments passed by the Supreme Court in the cases of K. Gopalan Nair vs. K. Balakrishnan Nair & Ors., [ (2005) 12 SCC 351 ], Ravinder Kaur vs. Ashok Kumar [ (2003) 8 SCC 289 ] and Hameed (Dead) by Lrs. 8. Learned counsel for the appellant/defendant No. 7, in order to support his contentions, has placed reliance on the judgments passed by the Supreme Court in the cases of K. Gopalan Nair vs. K. Balakrishnan Nair & Ors., [ (2005) 12 SCC 351 ], Ravinder Kaur vs. Ashok Kumar [ (2003) 8 SCC 289 ] and Hameed (Dead) by Lrs. & Ors. vs. Kummottummal Kunhi P.P. Amma (Dead) by Lrs. & Ors. [ (2007) 15 SCC 155 ]. 9. Heard the submissions put forth by learned counsel for the rival parties and perused the material available on record. 10. The main question, which arises for consideration before this Court, is whether the Appellate Court was right in remanding the case to the Trial Court for fresh trial on merits? 11. Rules 23 & 23-A of Order 41 of the CPC read as under: "23. Remand of case by Appellate Court. Where 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, which 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." 12. It would not be out of place to mention here that as per Order 41 Rule 23 of CPC, where 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. 13. 13. Thus, from conjoint reading of the provisions, i.e., Rule 23 and 23-A of Order 41 of CPC, it is crystal clear that the Appellate Court is having jurisdiction to remand back the matter with a direction to the original Court for fresh consideration of the case. It is apparent from the impugned judgment that the Appellate Court has justified the reason for remanding the matter to the Trial Court for fresh consideration of the case. This Court does not find any reason to differ from the conclusion arrived at by the Appellate Court while remanding the matter. 14. In the result, I find no substance in the present appeal and it is, accordingly, dismissed being devoid of merits. No costs.