S.N. Modi, J.
1. This revision application is directed against the order of the Additional District Judge, Churu dated 16-11-1972 whereby he set aside the judgment and decree of the Civil Judge, Churu dated 25-3-1970 and remanded the case back to him after framing an Additional issue for fresh decision on merits.
2. A preliminary objection has been raised that this revision application is not maintainable as an appeal lies against an order of remand made under Order 41 Rule 23 CPC as amended in Rajasthan. The learned Counsel for the petitioners in reply submits that this revision application be treated as an appeal against the order of the Additional District Judge, Churu dated 16-11-1972. I uphold the preliminary objection and treat this revision application as an appeal.
3. The relevant facts of the case are that the defendant respondent told the house in dispute to the plaintiff appellants for Rs. 12500/- vide sale deed Ex. 1 dated 7-6-1960. The sale deed contains a condition that in case the defendant pays back to the plaintiffs Rs. 12500/- with interest within four years from the date of the sale deed, the plaintiffs will re-sale the house to the defendant. There is further condition in the sale deed that in case of failure of defendant to do so the defendant will not be entitled to re-sale of the house. On the day the suit house was sold to the plaintiffs, the defendant executed rent note Ex. 2 and got it registered and thereby the defendant took the house from the plaintiffs on rent of Rs. 8/- per month for a period of four years. On 25-4-1967 the plaintiffs instituted the suit out of which this appeal has arisen for eviction of the defendants from the house and also claimed arrears of rent amounting to Rs. 278/- on the basis of rent note Ex. 2. The defendant contested the suit and pleaded inter alia that the document Ex 1 was not a sale deed but was a mortgage by conditional sale. The defendant also denied execution of the rent note Ex. 2. One of the issues framed by the trial court was whether the suit house was not sold to the plaintiffs but was only mortgaged to them. This issue was however, deleted by the trial court on 2-4-1968 on the ground that this suit was based on rent note. The trial court on consideration of the evidence led by the parties decreed the suit for eviction as well as for arrears of rent. Dissatisfied with the said judgment and decree the defendant preferred an appeal to the court of Additional District Judge, Churu. The learned Additional District Judge came to the conclusion that it was necessary to decide question as to whether the document Ex. 1 was a sale deed or a mortgage by conditional sale. In this view of the matter the learned Additional District Judge framed the following issue:
Whether document dated 7-6-1960 Ex. 1 was in fact a sale deed and not a mortgage by conditional sale.
Having framed the above issue, the learned Additional District Judge set aside the judgment and decree of the trial court and remanded the case back to it for fresh decision after giving an opportunity to the party to lead evidence on the newly framed issue. Aggrieved by the said judgment and decree the plaintiffs have preferred this revision application which has now been treated as an appeal.
4. I have heard learned Counsel for the parties and one through the record of the case. The plaintiffs in this suit have claimed eviction and arrears of rent on the basis of the rent note Ex.2 Ordinarily therefofe, the title of the landlord to the suit premises in respect of which rent note has been executed by the defendant cannot be enquired into. Again it will not make any difference whether the document Ex. 1 is a sale deed or a mortgage by conditional sale. In either case the vendor or the mortgagor may execute a rent note in favour of the vendee or the mortgagee as the case may be. In this view of the matter it will be wholly un-necessary to decide in this case whether the document Ex. 1 is a sale deed or a mortgage by conditional sale. The lower appellate court was wholly un-justified in framing the issue and remanding the case back to the trial court for fresh decision.
5. I accordingly allow the appeal, set aside the judgment and decree of the learned Additional District Judge, Churu and send the case back to him for deciding the appeal on merits in accordance with law. The costs of this appeal shall abide the final result.