1. This is an appeal against an order of remand made by the first Appellate Court. The suit out of which the appeal arises is one for recovery of possession on establishment of the plaintiff's title. The plaintiff's case was that of the lands in suit he had obtained a lease from the superior landlord in the year 1250 Maghi, the superior landlord being one Abdul Ali Malum. The case for the defense was, first, that the lands in dispute were not covered by the lease Obtained by the plaintiff in 1250, and secondly that even if so included, that they have been previously leased out by the landlord to one Noor Ali and that, therefore, at the date of the plaintiff's lease the landlord had no right to lease out the lands in question. The first Court directed a local investigation, and after considering the report of the Commissioner thus appointed and the oral evidence adduced by the parties, name to the conclusion that the lands in suit were not included in the plaintiff's lease and further that they were included in the prior lease granted to Noor Ali. On these findings the first Court dismissed the plaintiff's suit.
2. On appeal the learned Subordinate Judge apparently came to the conclusion that the local investigation made by the Commissioner and the report of the Commissioner were unsatisfactory. The main reason be gives for this conclusion appears to be that according to the report of the Commissioner the lands in dispute between the parties are to be located in the middle of the sea.' On his finding as to the nature of the Commissioner's investigation and report he set aside the decree made by the first Court and directed that a fresh local investigation should be held at the cost of the defendant-respondent He further directed that the whole case should be re tried. His order is thus one which purports to be made under Order XLI, rule 23, Civil Procedure Code. As such it is obviously an improper order for the first Court did not decide the case on any preliminary point, but having taken the whole of the evidence decided the case after trying all the issues. While directing a retrial the learned Subordinate Judge further directed that the first portion of Issue No. 5, namely, whether the disputed lands were included in the plaintiff's lease, should be struck out. Having directed a de novo trial ho was not competent at the same time to direct that one of the essential issues in the case should be omitted. If his order had been one under Order XLI, rule 25 or rules 27 and 28, it is true that when directing the trial of certain issues and the taking of additional evidence on certain points, he might himself come to the conclusion that the first part of Issue No. 5 was one to be decided in the plaintiff's favour. But any such finding we have been unable to trace in his judgment, which we regret to say we must characterise as extremely confused and indeed almost un-intelligible.
3. On the whole we think the proper course to take in this matter is to set aside the decree of the learned Subordinate Judge and remand the appeal to be tried afresh by that learned Subordinate Judge's successor-in-office. If, when he hears the appeal, he comes to the conclusion that the local investigation made by the Commissioner and the Commissioner's report are unsatisfactory, it will be open to him in his discretion to direct a fresh local investigation, and if he thinks that further evidence on any point is necessary, it will be open to him also to direct the taking of such additional evidence. But if he finds any such order necessary, his order must be one drawn up in accordance with the provisions of Order XLI, rules 27, 28 and 29 and not in accordance with the provisions of Order XLI, rule 23.
4. Costs of this hearing will be costs in the case. The hearing fee is assessed at two gold mohurs.
5. I agree.