1. This is an appeal from an order of the learned Subordinate Judge of No a khali remanding a case to the Court of first in stance to pass final orders. The learned Judge in remanding the case has set aside the decree of the Court of first instance, and against that order of remand the defendants have preferred this appeal.
2. The Suit was brought by the plaintiffs for a declaration of their title to and khas possession of, certain lands as appertaining to howla Muchi Asrap Asab-ud-din.
3. The Court of first instance framed six issues in the case, and the Munsif expressed his opinion on all the issues other than the fifth, namely, 'can the plaintiffs get khas possession of the disputed land.'
4. It is objected before us that the Munsif's decision was not one upon a preliminary point within the meaning of Order XLI, Rule 23 and that the order of remand is bad for that reason.
5. I think that this contention is sound. The new Code of Civil Procedure does not contain the express limit on remands which was embodied in Section 564 of the Civil Procedure Code of 1882. But Rules 23 and 25 of Order XLI represent the old Sections 562 and 566 and the law does not appear to have been changed. Speaking for myself, I do not think that the decision of the Munsif was upon a preliminary point as meant by Rule 23. He has gone fully into the merits of the case and has only omitted to decide the question of the plaintiff's right to khas possession because he dismissed the suit on the question of title. I think that for this reason the order of remand was bad and that the learned Subordinate Judge should have followed the procedure which has been prescribed, namely, to have retained the case on his own file, and if he required the trial of any issue or the determination of any question of fact which the Munsif had left untried or undetermined, to have made a remand under Rule 25. I think, therefore, that his order of remand should be set aside and this case should be sent back to him for a re-trial of the appeal in accordance with law. It will be open to him, as I, have said, if for the right decision of the suit upon the merits he considers essential the trial of any issue or the determination of any question of fact, to prefer the same for trial to the Court of first instance. When he has received the finding of the Court of first instance on that issue, he will then be in a position to decide the whole appeal which is before him. It will, of course, be in his discretion whether he makes any such remand or not, If on farther consideration, he thinks that the materials before him are sufficient, it will be open to him to decide the whole appeal without any such remand.
6. I would make the costs of this appeal costs in the cause and fix the hearing-fee at two gold mohurs.
7. The two principal issues in this case were, firstly, whether the plaintiff had-title to the land in suit, and, secondly, whether, if so, he was entitled to khas-possession.
8. The Munsif held that the plaintiff had no title and it was consequently unnecessary for him to deal with the question of khas possession.
9. The Subordinate Judge held that the plaintiff had title to the land, and remanded the case to the Munsif to decide the subsequent point whether the plaintiff was or was not entitled to khas-possession.
10. It is argued that as the Subordinate Judge did not dispose of the appeal on a preliminary point he was not entitled to remand the case under Order XLI, Rule 23. Now, of course, to justify a remand under that rule, it is necessary that the original Court should have disposed of the case on a preliminary point. I am not wholly satisfied, however, in this case that the Munsif did not decide the suit on a preliminary point. It appears to me that, when there are two points to be decided and it is necessary for the decision of the second point that the first point must first be decided, the decision of the first point is necessarily preliminary to the decision of the second. I do not see clearly how the question whether a point is connected with the merits of the case or only with consideration of pure law can affect the question whether or not it is a preliminary point. In short I adhere to the view which the Bench, of which I was a member, took in the case of Salim Sheikh v. Nazir Khan 8 C.L.J. 159. But my learned brother, I understand, is of opinion that the Sub-Judge, to obtain the end that he desired at the time of remanding the case, ought to have referred the question of khas-possession for trial to the Munsif under Order XLI, Rule 25. It appears to me that the difference between this course and the course which the learned Sub-Judge actually adopted is so slight, that I should not be justified in recording a formal dissent from my learned brother's decision, I, accordingly, agree with the order which he proposes to pass.