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. This Miscellaneous Appeal is directed against the judgment and order dated 20. 06. 2008 passed by Sri Manoj Kumar Verma, Ist Addl. District & Sessions Judge, Hilsa (Nalanda) in Title (Eviction) Appeal No. 09 of 2006/06 of 2007 by which he has set aside the judgment and decree of the trial court passed in Eviction Suit No. 1/03 and remanded the suit to the trial court for consideration a fresh and further observed that it will be open to the parties to lead the evidence restricted to the point of partial eviction.

4. The learned lower appellate court after hearing set aside the judgment and decree of trial court merely on the ground that the trial court has not given any finding on partial eviction and remanded the case to the lower court for fresh decision.

5. The plaintiff respondent appellant being aggrieved by order of remand passed by the lower appellate court has preferred this Miscellaneous Appeal. It has been contended by the appellant that lower appellate court did not go into the question whether finding recorded by the trial court on issues like relationship of landlord and tenant and issue like bonafide requirement set aside the entire judgment and decree on all issues and remand the matter for consideration without going into the finding recorded by trial court and giving a reason to reverse the finding is against the mandate of Order XLI Rule 23A of CPC. It has further been contended that suit premises is only 10'9" X 12' and taking into consideration this fact the lower appellate court could well have appreciated to consider that partial eviction may not have meet the requirement of plaintiff and has relied upon decision reported in 1993(1) PLJR 87 and 2007 (4) PLJR 98.

6. Learned counsel for the respondent however contended that Miscellaneous Appeal is not maintainable as appellate court has set aside the judgment and decree of the trial court and hence a Second Appeal is required to have been filed as Second Appeal is maintainable against the judgment and decree of the first appellate court and further contended that a decree of eviction can not be passed without considering the point of partial eviction as whether partial eviction meet the requirement of plaintiff.

14. However, the trial court has place reliance on the decision reported in 2008 B.B.C.J. page

113. However, in 2008 BBCJ Hon'ble High Court set aside the judgment and decree only to the extent of finding not recorded on partial eviction and hold that there is no finding regarding partial eviction and remanded the matter to the court below only for the limited purpose of considering and deciding the issue as to whether the bona fide personal necessity of the plaintiff would be satisfied by a partial eviction. The Hon'ble High Court did not set aside the entire judgment and decree on other issue and other finding recorded by the trial court rather went into the finding recorded and considered those finding to hold that they are good finding hence in effect observed substantial compliance to Order XLI Rule 25 as it amounts to refer the case to the extent on the issue whether partial eviction to meet the requirement of the plaintiff and further in the present facts and circumstance of the case, the first appellate court in the impugned order set aside the entire judgment and decree of the trial court without even going into the finding recorded by court below on relationship of landlord and tenant and personal necessity considered on conclusion that finding recorded by trial court is suffer from infirmity or not and hence the impugned order is not sustainable and is hereby set aside and case is sent down to the lower appellate court to decide the appeal in accordance with law. Accordingly, the appeal is allowed.