1. ' NADEEM AZHER SIDDIQI, J.---The Applicants have challenged 'the judgment passed by IlIrd Additional District Judge, Khairpur in C,A. No,41 of 2004, whereby set aside the judgment passed by the trial Court in C.S. No,42 of 2003.
2. ' The brief facts necessary for the disposal of above revision areas under:-- ' The Applicants claim that they are owners of land measuring 64.35 Sq feet and in possession since 30/35 years till 30-6-2003 and the houses of respondents Nos. 3 to 6 are adjacent to the house of the plaintiffs. The respondents Nos. 3 to 6 have forcibly dispossessed the plaintiffs from the suit property on 30-6-2003.
3. ' The respondents Nos. 3 to 6 filed written statement and have denied the title and possession of the applicant and submit that the suit plot is in possession of the respondents Nos. 3 to 6 and their relatives lawfully allotted to them under Gothabad Scheme since 1989/90. The respondents Nos. 3 to 6 have also challenged the Sanad of the applicant being fraudulent. The respondents Nos. 3 to 6 claimed that the Applicants tried to snatch the possession from them on 24-6-2003 and 25-6- 2003.
4. ' From the pleadings of the parties the trial Court has framed the following issues:--
(1) Whether the suit is not maintainable according to law? (OPD)
(2) Whether plaintiffs were in possession of disputed property till 30-6-2003? (OPP)
(3) Whether the plaintiffs have houses otaq and shops in disputed plot such "SANAD" are issued in their favor? (OPD)
(4) Whether plaintiffs tried to dispossess the defendants from disputed property on 24-6-2003 and 25-6-2003? (OPD)
(5) What shall the decree be?
5. ' The learned trial Court has decreed the suit. The respondents Nos. 3 to 6 challenged the decree by way of filing of appeal. The appellate Court has set aside the decree and remanded the case to trial Court.
6. ' The learned counsel for the applicants has submitted that the judgment of appellate Court is perverse as the learned trial Court has not framed the point for determination and without touching the merits of the case remanded the same to the trial Court. He further submits that the remand of case is against the evidence available on record.
7. ' The learned counsel for the respondents Nos. 3 to 6 has supported the judgment and submits that the learned Appellate Court has rightly remanded the suit as the learned trial Court has neither framed the issue with regard to valuation of the property nor framed the issue with regard to its jurisdiction. He submits that the suit for possession of the property is to be valued in accordance with the value of the property. He referred para. 11 of the written statement and submits that objection with regard to valuation has been taken in the written statement which was ignored.
8. ' Mr.G.D. Shahani, learned Addl. A.G. Has also supported the order of Appellate Court and submits that the case was rightly remanded. He submits that issues can be framed at any stage and if the material is available the Appellate Court can also decide the issues or may remand the case.
9. ' I have heard the learned counsel for the parties and perused the record made available before me.
10. ' The respondents Nos. 3 to 6 in their written statement have taken the objection with regard to the valuation of the property. The trial Court has not framed any specific issue with regard to the valuation of the property. An issue with regard to maintainability of the suit was framed, but while discussing the same the valuation of the property has not been touched. The learned counsel for the respondents Nos. 3 to 6 is correct in arguing that the suit should have been valued in accordancewith section 7(v) of the Court Fees Act which provides that "in suit for possession of a land, house or garden according to the value of the subject-matter and the market value of the land, house or garden shall be deemed to be of such value." In the suit the applicants have valued the Suit for Rs,600 only and have not valued the Suit in accordance with the Court Fees Act with regard to the valuation of the relief of possession.
11. ' The High Court in the revisional jurisdiction can interfere with a finding of fact where an error of jurisdiction is apparent, or an illegality A and irregularity is found in the proceedings of the Court.
12. The learned Appellate Court is empowered to remand the case U/0 XLI Rule 23 and 25 of C.P.C.
13. Under Rule 23 the. Appellate Court may remand the case if the suit was disposed of on a preliminary point and the decree is reversed. This is not the case in hand. The suit was not disposed of upon a preliminary point but was disposed of after discussion on all issues, U/O XLI Rule 25 an Appellate Court after framing of the issue refer the matter to' the trial Court with the direction to take additional evidence and the trial. Court shall proceed to try such issues and shall return the B evidence to the Appellate Court together with its findings thereon and the reasons thereof. Under this rule the case cannot be remanded to enable parties to produce evidence which ought to have been produced before the lower Court and to decide the case afresh. Under this rule where an issue is remitted the suit continues to be pending in the appellate Court and the Court to which issue is remitted must give its findings but cannot decide the suit itself. While remanding the case under this rule the Appellate Court cannot set aside the judgment and the appeal has to be kept pending to be decided on merits after receipt of findings and reasons for the trial Court.
14. ' The Appellate Court while remanding the case should have framed the issue with regard to the valuation of the suit and payment of court-fees.
15. ' The following issue has been framed:--
(1) Whether the suit has been properly valued and proper court-fee has been paid?
16. ' In view of the above the remand order is maintained with this modification that the trial Court will try the issue and will remit its findings and reasons to the Appellate Court within two months, and thereafter the Appellate Court will decide the appeal on merits after giving the opportunity to the parties to file memorandum of objection as provided U/O XLI Rule 26, C.P.C.