( 1 ) sa275.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 275 OF 2011 Manjoor Ali Ghusumiya Sayyad .. Appellant Versus Tahajibibi w/o. Bashir Ali Sayyad & Ors... Respondents Mr. A.P. Bhandari h/f. Mr. Patel Shaikh Ashpak Taher, Advocate for the appellant. Mr. S.B. Yawalkar, Advocate for respondent Nos. 1 & 2. CORAM : A.V. NIRGUDE, J. DATED : 06.09.2011 P.C. :- 1. The learned Counsel for the appellant raised two points. First, he said that the suit was not maintainable because the earlier suit on the same cause of action was withdrawn without obtaining leave to file fresh suit as contemplated under Order 23 Rule 1 of the C.P.C. Second, he said that the Court below did not think it necessary and thereby committed grave error in appreciating the case that the respondent/plaintiff was under obligation to prove that he was dispossessed during the pendency of the suit. On going through the judgments of the Courts below and also on going through the pleadings, the points mentioned above are not properly highlighted even by the appellant/defendant in the pleading. However, both these ( 2 ) sa275.11 points are noticeable and the learned Judges of the Courts below ought to have noticed them and ought to have framed proper issues/points for consideration. It seems that the advocates appearing for the parties as well as the learned Judges of the Courts below totally ignored the provisions of Order 23 Rule 1 of the C.P.C. while examining the maintainability of the suit. So also the Courts below did not think it necessary to put the burden on the respondent/plaintiff to prove that he was dispossessed during the pendency of the suit. In such situation following substantial questions of law would arise in this appeal:- (1) Whether the suit was not maintainable in view of withdrawal of earlier suit for possession, as contemplated under Rule 1 of Order XXIII of the Code of Civil Procedure? (2) Whether the Courts below erred in not framing relevant issue in respect of respondents getting back the possession of the suit land in 1992 and that the respondent/plaintiff was subsequently dispossessed? (3) Whether the release deed was a lawful transaction? 2. However, the points mentioned above were never under consideration of the Courts below and so I think the parties should be given an opportunity to go to the lower most Court to agitate these two points. I am of ( 3 ) sa275.11 the view that it will be in the interest of both the parties to send the case back to the Trial Court. 3. The appeal is allowed. The judgments of both the Courts below are set aside. The case is remanded back to the Trial Court where the learned Judge of the Trial Court shall frame additional issues as indicated above. The parties are also allowed to amend their pleadings, if they want. The learned Judge of the Trial Court shall then record findings on all the issues framed. He may place reliance on the evidence which is already placed on record and is not precluded from recording new evidence. The parties shall appear before the Trial Court on 26.09.2011. The record and proceedings be sent back to the Trial Court. The Trial Court shall make efforts to dispose of the suit as early as possible and in any case within one year from first appearance i.e. 26.09.2011. [A.V. NIRGUDE, J.] snk/2011/SEP11/sa275.11ok