JUDGMENT : K.N. Seth, J. The Plaintiff Respondent brought a suit for specific performance of the agreement of sale relating to Bhumidhari plots No. 1480, 1482, 1490 and 1491 situate in Sikandrabad on the allegation that on 7-6-1966 Smt. Saeedan, Defendant No. 1, agreed to sell these plots to the Plaintiff for Rs. 20,000/- and in pursuance of that agreement a sum of Rs. 5,000/- was advanced to her. The sale deed was to be executed by 4-6-1969. The Plaintiff asked Smt. Saeedan to execute the sale deed but she avoided to do so and hence the suit. In the suit Smt. Saeedan alone was impleaded as a Defendant. 2. Smt. Saeedan contested the suit and pleaded that she never agreed to sell the plots in suit to the Plaintiff and no agreement was executed by her as alleged. She denied to have received Rs 5,000/-as advance from the Plaintiff. It was asserted that in 1966 when the alleged agreement is said to have been executed a litigation in respect of the plots in question was pending and her rights and share even had not been determined. Subsequently her share was determined at one third only. She was, however, prosecuting her appeal and writ petition claiming the entire plots in dispute. In the litigations between her and the brothers of her husband the Plaintiff used to do Pairvi on her behalf and in that connection he had obtained her thumb impressions and those of her sons on blank papers and appear to fabricated the agreement on these papers. 3. Lateron the plaint was got amended. Defendants No. 2 to 4 as one set and Defendants No. 5 and 6 as another set were added to the array of parties. Paragraph 5(Aa) was added wherein it was alleged that during the pendency of the suit Defendant No. 1, claiming herself, to be owner of only one third share in the disputed plots, transferred her share in favour of Defendants No. 2 to 4 under a sale deed dated 20th April 1970 and consequently it had become necessary to implead them as Defendants. In paragraph 5(Bb) it was alleged that in chak No. 5 Alladia, husband of Smt. Saeedan, and his brothers Alimuddin and Ramzani were cosharers and chak No. 25 stood in the name of Alladia alone. Alimuddin and Ramzani had no concern with this chak. In paragraph 5(Bb) it was alleged that in chak No. 5 Alladia, husband of Smt. Saeedan, and his brothers Alimuddin and Ramzani were cosharers and chak No. 25 stood in the name of Alladia alone. Alimuddin and Ramzani had no concern with this chak. Both the chaks were made joint for facility of cultivation. Necessary consequential amendments were made in the relief claimed in the suit. It was specifically prayed that Defendants No. 1 to 4 be directed to execute the sale deed in favour of the Plaintiff and in case the court came to the conclusion that it was necessary to partition chaks No. 5 and 25 the Plaintiff be delivered possession over 8 Bighas, 16 Biswas and 10 Biswansis of chak No. 25 against the Defendants. 4. Defendants No. 2 to 4 in their written statement pleaded that Defendant No. 1 was not the owner of the entire plots but had only one third share in them which she transferred to them under the sale deed dated 20th April 1970. They also pleaded that they were bona fide transferees for value without notice of the agreement in favour of the Plaintiff. Defendants No. 5 and 6 did not file any written statement. 5. The trial court held that Smt. Saeedan had agreed to sell the disputed plots to the Plaintiff for Rs. 20,000/- and in this connection she had received Rs. 5,000/- as advance. The court also held that chaks No. 5 and 25 were not joint and there was no need for partition of these chaks. The Plaintiff was held entitled to possession over the plots in suit forming part of chak on. 25. On these findings the court passed a decree for specific performance and for possession against Defendants No. 1 to 4 on payment of Rs. 15,000/-. The present appeal has been filed by Defendants No. 5 and 6 only. 6. A preliminary objection was raised by the learned Counsel for the Plaintiff Respondent that the appeal at the instance of Defendants No. 5 and 6 is not maintainable. It was urged that these Defendants did not file any written statement and contest the suit and no decree was passed against them. In such a situation they are not entitled to challenge the decree. I am not impressed by the argument. It was urged that these Defendants did not file any written statement and contest the suit and no decree was passed against them. In such a situation they are not entitled to challenge the decree. I am not impressed by the argument. Section 96 CPC does not in terms lay down as to who can file an appeal. It does not prescribe that it is only that person against whom a decree has been passed or against whom some relief in express terms has been granted is alone competent to come up in appeal. In the absence of any such limitation a party to the suit who can satisfy the appellate court that he is aggrieved by the decree as it adversely affects his interest can file an appeal against it. In order to determine the question as to who is an aggrieved person it is not only the precise language in which the decree is couched but the substance of the decree and the entire circumstances of the case have to be considered. 7. Dealing with the question whether a party is aggrieved by a decree and has a right to appeal from it, Woodroffe, J. in Krishna Chandra Goldar v. Mohesh Chandra Shah 9 Cal. W.N. 584 observed: The question who may appeal is determinable by the common sense consideration that there can be no appeal when there is nothing to appeal about. It is for this reason that, apart from cases of estoppel, only a party to the suit at the time the decree is made or his representatives or assigns when brought on the record, or an auction-purchaser in an appeal from an order passed in execution, may appeal as they alone can be affected by the decree or order. Again of such parties only these can appeal who are adversly affected by the decree. Usually, only the party against whom a decree is passed, i.e., the person ordinarily injuriously affected by the decree can appeal. For the same reason, the person against whom a suit has been dismissed cannot usually appeal against the decree as he is not ordinarily affected otherwise, than beneficially, by it. But in some cases suit may be dismissed as against the Defendant and yet the latter may have a right of appeal. For the same reason, the person against whom a suit has been dismissed cannot usually appeal against the decree as he is not ordinarily affected otherwise, than beneficially, by it. But in some cases suit may be dismissed as against the Defendant and yet the latter may have a right of appeal. It is not because the suit is formally dismissed as against the Defendant that no appeal lies but because such dismissal is ordinarily not merely no grievance but an actual benefit to the Defendant. There is in such cases nothing to complain of. If there is, then notwithstanding that the suit is dismissed against him he may appeal. The question was considered by a Full Bench of this Court in Lachman Singh v. Mohan ILR All 487 and held that in order to see what the decree really means the court may look not only into the judgment but also into the pleadings and when read in the light of the record it is found that it is really unfavourable and might prove injurious to the Appellant he is aggrieved by it and has every interest to appeal. The test laid down appear to be that if the Appellant is aggrieved by the decree he may notwithstanding that no decree in express terms has been passed against him or that the suit has been formally dismissed as against him. 8. Corpus Juris Secundum, Volume 4, summarises the law on the subject, who would be a person aggrieved in order to give him a right of appeal, in these words: The mere fact that a person may be hurt in his feelings or be disappointed over a certain result, or be subject of inconvenience, annoyanee, or discomfort, or even expense does not constitute him a party aggrieved, since he must be aggrieved in a legal sense. To render a party aggrieved by an order, so as to entitle him to appeal therefrom, the right invaded must be immediate, not merely some possible, remote consequence, or mere possibility arising from some unknown and future contingency, although it has been held that an immediate pecuniary damage is not always prerequisite to the right of appeal.... Broadly speaking, a party or person is aggrieved by a decision when, and only when it operates directly and injuriously upon his personal, pecuniary, or property rights. 9. Broadly speaking, a party or person is aggrieved by a decision when, and only when it operates directly and injuriously upon his personal, pecuniary, or property rights. 9. No useful purpose will be served by referring to other decisions on the point as the consensus appears to be that a person aggrieved by a decree has a right of appeal although the decree in specific term may not have been passed against him or even where the suit has been dismissed as against him and in order to judge whether he is an aggrieved person not only the judgment but the pleading have also to be taken into consideration. 10. The suit was originally filed against Smt. Saeedan only. Other Defendants were brought on record by amendment of the plaint. In the application for amendment it was specifically mentioned that chak No. 5 was recorded in the names of Alladia, Alimuddin and Ramzani. Chak No. 25 was amalgamated with chak No. 5 and the names of Alimuddin and Ramzani were also recorded over chak No. 25 although they had no concern with that chak and Alladia, husband of Defendant No. 1, alone was entitled to it. It was also alleged that Smt. Saeedan, in collusion with Alimuddin and Ramzani, declared herself to be the owner of only one third share in the plots in dispute and she executed a sale deed in favour of persons who were sought to be impleaded as Defendants No. 2 to 4. The relief claimed in the suit was also amended by incorporating that if considered necessary the area covered by the plots in dispute be partitioned and possession be delivered to the Plaintiff against the Defendants. It is significant that this relief was claimed against all the Defendants and was not confined to Defendants No. 1 to 4. The court framed issue No. 6 to the effect “whether the Plaintiff is entitled for the relief of possession by partition as prayed. “Dealing with this issue the court held that the two chaks were not joint and there was no need for partition. It held the Plaintiff entitled to possession over the plots in suit forming part of chak No. 25. “Dealing with this issue the court held that the two chaks were not joint and there was no need for partition. It held the Plaintiff entitled to possession over the plots in suit forming part of chak No. 25. It is true that the court decreed the Plaintiff's claim for specific performance of contract and for possession against Defendants No. 1 to 4 only and made no mention at all of Defendants No. 5 and 6 but it cannot be successfully contended that Defendants No. 5 and 6 are not concerned with the decree and their rights have not been affected at all. The suit has not been dismissed against them. The decrees necessarily implies the finding that Defendants No. 5 and 6 have no right, title or interest in the suit plots. Armed with, the decree of the court and the sale deed in his favour the Plaintiff can claim possession over the entire area of the plots in dispute inspite of the plea that Smt. Saeedan had only one third share in these plots. The Plaintiff were aware of the stand that Saeedan had only one third share in the plots in dispute and further that chaks No. 5 and 25 had been amalgamated and the names of Defendants No. 5 and 6 were also recorded over chak No. 25 of which the plots in dispute formed a part. The decree for possession over the entire plot thus adversely affects the interest of the Appellants. They are certainly aggrieved by the decree of the court below and are thus entitled to maintain the appeal. 11. Learned Counsel for the Respondents, relying on the principle laid down in Smt. Ganga Bai Vs. Vijay Kumar and Others, AIR 1974 SC 1126 contended that the present appeal was not maintainable as it was not, directed against any part of the decree of the trial court, it could at best be said to be against the finding that under the agreement of sale the Plaintiff was entitled to transfer in his favour the entire area of the plots in dispute and u/s 96 CPC no appeal lay against a mere finding. In Ganga Bai's case (supra) the suit was to enforce a mortgage of joint family property executed by the father manager. In Ganga Bai's case (supra) the suit was to enforce a mortgage of joint family property executed by the father manager. A preliminary decree for sale was passed only against the half share of the father in the mortgaged property and the suit was dismissed against the sons on the ground that the mortgage, not being for legal necessity, was not binding on the son's interest under the Hindu Law. The sons filed an appeal not against any part of the preliminary decree but only against the finding of the trial court that the partition between father and sons effected subsequent to the mortgage in suit was a sham and colourable transaction. The Supreme Court held that the appeal filed by the sons was not maintainable in law as it was directed against a mere finding recorded by the trial court. The matter regarding the partition was not directly and substantially in issue in the mortgage suit and as the finding given by the trial court in that respect was unnecessary and had no impact on the decision of the suit it could not operate as res judicata. The principle laid down in Smt. Ganga Bai's case (supra) is not attracted to the facts and circumstances of the present case where the extent and interest of Smt. Saeedan in the plots in dispute had necessarily to be decided. By holding that the Plaintiff was entitled to the transfer of the entire area of the plots in dispute the court, as observed earlier, impliedly held that she was the owner of the entire plots and not of only 1/3rd share in them. That finding negatived the stand that Smt. Saeedan had only 1/3rd share in the plots and was thus against all the Defendants to the suit. It was necessary to decide that question before a decree could be passed in favour of the Plaintiff and the decision would bind all the Defendants to the suit. 12. On merits it was urged by the Appellants that the court below decreed the Plaintiff's suit for specific performance of the contract for sale and for possession over the plots without applying its mind to the title of Smt. Saeedan. 12. On merits it was urged by the Appellants that the court below decreed the Plaintiff's suit for specific performance of the contract for sale and for possession over the plots without applying its mind to the title of Smt. Saeedan. It was contended that while deciding issue No. 6 it was necessary for the court to determine the interest of Smt. Saeedan in the disputed plots as the relief for possession could not be granted without ascertaining the extent of her interest in these plots which she could validly convey. I doubt if the issue as framed squarely covered the question of Saeedan's interest in the property. In my opinion a separate issue should have been framed in the case relating to the interest of Smt. Saeedan in the disputed plots for without deciding the controversy regarding the interest of Smt. Saeedan, the suit could not be properly decided. Learned Counsel for the Respondent contended that it was not at all necessary to frame any issue covering that controversy. It was pointed out that Defendants No. 5 and 6, inspite of service of summonses on them, had not cared even to file a written statement asserting their title to the plots in question or that Smt. Saeedan, had only one third share. It is true that these Defendants did not file any written statement asserting their title but on the Plaintiff's own case and the stand taken by Smt. Saeedan and Defendants No. 2 to 4 it was apparent that a dispute had been raised regarding the competence of Smt. Saeedan to convey title over the entire plots in question. In his application for amendment the Plaintiff himself came forward with the case that Smt. Saeedan was now claiming only one third share in the plots and had in fact executed a sale deed transferring her share in favour of Defendants No. 2 to 4. The fact that in revenue records names of Alimuddin and Ramzani were also recorded over These plots was in the knowledge of the Plaintiff and that led him to implead Defendants No. 5 and 6 and to claim possession after partition. The Plaintiff himself brought on record copies of revenue entries indicating that names of Alladia, Alimuddin and Ramzani were recorded over entire chak No. 25 and it was amalgamated in chak No. 5. 13. The Plaintiff himself brought on record copies of revenue entries indicating that names of Alladia, Alimuddin and Ramzani were recorded over entire chak No. 25 and it was amalgamated in chak No. 5. 13. Even if the Defendant Appellants had filed a written statement the situation would not have changed. The plea that they could take had been taken by other Defendants and the Plaintiff himself was conscious of that controversy. A clear controversy had thus been released. In such a situation it was the duty of the court to frame an issue to that effect inspite of the failure of the Defendant-Appellants to file a separate written statement of their own. While it is true the parties are expected to be vigilant and must see that proper issues are framed in the case but primarily it is the duty of the court and the court cannot be absolved of its responsibility merely because a party has been negligent. Even in an undefended case it is the duty of the court to frame proper issues with a view to inform the Plaintiff what points he has to establish before a decree could be claimed. It appears that in the present ease the court did not carefully look into the pleadings of the parties before framing issues and that has resulted in miscarriage of justice. I am of the opinion that without first deciding the extent of the interest of Smt. Saeedan, the Plaintiff's suit for possession over the entire land comprised in the plots in dispute could not be declared merely on the finding that she did enter into an agreement with the Plaintiff for sale of these plots. It is, therefore, necessary that the case be sent back to the court below for a fresh decision after framing an issue relating to the interest of Smt. Saeedan in the plots in question and after giving opportunity to the parties to lead evidence in support of their respective claims. 14. The Appellants have made an application under Order 41, Rule 27, CPC for taking additional evidence on record of this appeal. Since I am remanding the case and the parties will have opportunity to produce evidence on the dispute relating to the extent of Smt. Saeedan's interest in the plots in dispute, it is not necessary to pass any order on the application. 15. Since I am remanding the case and the parties will have opportunity to produce evidence on the dispute relating to the extent of Smt. Saeedan's interest in the plots in dispute, it is not necessary to pass any order on the application. 15. It appears that in pursuance of the interim order passed by this Court the Appellants have deposited some money in the court below as a condition for staying the execution of the decree they will be entitled to withdraw that amount. 16. In the result the appeal is allowed and the decree of the court below is set aside. The case is sent back to the trial court for decision afresh in accordance with the direction contained in this judgment. In the circumstances of the case the parties shall bear their own costs.