Appeal from Appellate Decree No. 17 of 1998 ---- Against the judgment and decree dated 7.7.1997 passed in Title Appeal No. 140 of 1994 by Shri Abhijit Sinha, 6th Additional District Judge,Patna. ---- BADRUL HASSAN & ORS------------------------(Appellants) Versus MOHAMMAD ALI------------------------------(Respondents) ---- For the Appellants : M/s Raghib Ahsan, S.M.Shabbir Alam, Bishwanath Choudhari and Mahendra Prasad Bhartee. For the respondents : M/s Abbas Haider and Kamil Akhtar ---- P R E S E N T THE HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH ---- The plaintiff-respondent had filed a suit for declaration of title in respect of 11.5 decimals of land appertaining to Plot Nos. 1960, 1961 and 1948, Tauzi No. 512, at Mauza Phulwari, P.S. Phulwarisharif as purchased by him registered deed dated 31.07.1979, for a consideration of Rs. 32,000. It was his case that he had purchased the same from Millat Sahkari Grih Nirman Samiti Ltd. The said entire piece of land they had themselves purchased the same by sale deed of the same date from one Gulam Gaus S/o Ali Akbar. Gulam Gaus had purchased the same on 04.11.1975 from one Israrul Hassan. Israrul Hassan was the son of Anwarul Hassan, who had another brother Syed Hassan. They had inherited property from Nazir Hassan, their father 23 decimals of land and there had been a partition. Anwarul Hassan got 11.5 decimals which have now ultimately landed with the plaintiff. 2 The prayer is that the defendants who are descendants of Sayed Hassan, the brother of Anwarul Hassan had no right, title and interest in the said property and is for restraining them from disturbing the possession of the plaintiff. The defendants’ case is that two decimals of land in Plot No. 1960 was purchased in the year 1932 by registered sale deed (Ext. C/1) in the name of Fasihan, who was the wife of Syed Hussan, similarly by registered sale deed of the year 1932 (Ext. C/2) Syed Hussan himself purchased 8 decimals of land in Plot No. 1961. These were their individual purchases and were never subjected to partition apart from the lands being claimed by the plaintiff appertain to these two plots. Regarding land appertaining to Plot No. 1948. Defendants’ case was that Nazir Hussan had two sons Anwarul Hussan and Syed Hussan. Nazir Hussan had died in 1952 but Anwarul Hussan predeceased him and died in 1950. Thus, the branch of Anwarul Hussan did not inherit anything rather property remain with Nazir Hussan and upon his death in 1952 devolved on Syed Hussan. Moreover, their case was that Israhul Haque Son of Anwarul Hussan migrated to Pakistan in 1952 and never returned and was serving in Pakistan Army. He was not in India, when he is said to have executed the registered sale deed dated 04.11.1975, in favour of Gulam Gause. Their further case is that Syed Hussan gifted from his independent purchase and from the land inherited by him which all stood totaling to 23 decimals to five of his Sons 19 decimals and balances four decimals to his daughter. Therefore, the 3 plaintiffs have no right or claim in respect of the suit properties. Unfortunately, both the Trial Court and Appellate Court failed to notice that firstly the case of the plaintiff depended on establishing partition and contents thereof as between Anwarul Hussan and Syed Hussan. Though both Courts have accepted the plea of partition, none of them have taken into consideration the contents of partition. Similarly, defendants plea of the two purchases in 1932 were supported by registered sale deed duly exhibited, but, what effect these had on the plea as raised by the plaintiff has not been considered by either the Trial Court or the Appellate Court. What is most surprising is in both these important matters no issues were framed? Though, both parties went to trial knowing fully well that they had to establish their respective stands. Thus, in my view, the Trial Court judgment and the Appellate Court judgment suffers from the vice of non-consideration and non-application of mind to the facts of this case. The judgments, thus, cannot be sustained because unless issues were framed with regard to the substance of partition and the effect of 1932 sale deeds, neither the defendants’ case could be proved nor the plaintiffs’ case could be sustained. Thus, I deem it fit not to decide other question as has been framed at the time of admission of this appeal, as, I intent to remand the matter for a fresh consideration on all issues including two issues in relation to substance of partition and 1932 sale 4 deeds. These issues would be framed by the Trial Court and then all issues would be reconsidered afresh in view of evidence already on record. As parties were totally aware of the respective issues and had proceeded with their cases accordingly. In that view of the matter, I hold that the answer to questions no. 3 would be in affirmative vitiating the judgments, answer to question no. 2 could be in the negative; inasmuch as, the plaintiff has sought consequential relief of permanent injunction against the defendants in not disturbing his possession, answer to question no. 1 would be now depend on the issues being framed and answered, accordingly. I am not simply allowing the appeal but I am remanding the matter to the Trial Court as evidences are on records which have not been considered by the two Courts below. As relevant, issues were not framed or not framed correctly to the extent as indicated above. The appeal is allowed and consequently the decree is set aside. As no fresh evidence is to be taken only issues are to be reframed and the matter heard afresh, it is expected that the Trial Court would make endeavor to conclude the matter within a period of 6 months. Navaniti Prasad Singh,J. Patna High Court The 17th July, 2008 Trivedi/NAFR