M. M. MIRDHE, J. ( 1 ) THIS Regular Second Appeal is filed by the appellants who were the defendants in the trial court under Section 100, C. P. C. against the judgment and decree dated 18-1-1984 passed by the civil Judge, Hospet, in R. A. No. 23 of 1980 confirming the judgment and decree dated 15-2-1980 passed by the Munsiff, hadagalli, in O. S. No. 218 of 1978. ( 2 ) THE learned Judge who admitted this appeal on 8-6-1984 has ordered as follows:"the question referred to in paragraph 5 of the appeal memo arises in this appeal for consideration. "as per this order, the issues that are referred to in ground No. 5 of the Appeal Memo will be the questions of law to be decided in this case. But, after hearing both sides, I am of the view that the questions of law referred to in ground No. 5 of the Appeal memo are not the substantial questions of law to be raised and considered in this appeal. The only substantial question of law that arises for consideration by this court in this appeal is as follows:"whether both the courts below were in not raising an issue as to whether the sale deed dated Exhibit P1, dated 30-4-1974 in respect of the suit house executed by the appellants and their son Basavaraj was a nominal one with a condition for reconveyance?" ( 3 ) I have heard both sides fully and perused the records of thecase. ( 4 ) THE respondent filed a suit for ejectment of the appellantsfrom the suit schedule property and put him in possession of the same and for recovery of 305/- as damages and for future damages and costs of the suit on the averments that the appellants along with their son Basavaraj executed a registered sale deed dated 30-4-1974 for a sum of Rs. 4,000/- selling the suit property to the respondent and the respondent was put in possession of the same on the same day by the appellants and their son Basavaraj and since then the respondent is the owner of the suit schedule property and he has been paying the property tax to the Panchayat Board and that on 6-5-1974, the appellants took possession of the suit schedule property on an yearly rental basis at Rs. 120/- per year for a period of 2 years ending with 6-5-1976 and the appellants have not paid the rent and hence they are liable to be evicted. Appellant-1 filed his written statement which was adopted by appellant-2 wherein it is contented that the appellants along with their son Basavaraj executed a sale deed for a sum of Rs. 4,000/- on 30-4-1974. But they have not put the respondent in possession of the plaint scheduled property on that day. They executed a nominal sale deed in favour of one D. Naradanagoud, but lateron he died and as his wife had brought much pressure on the appellants to discharge their debts, the appellants were forced to approach the respondent for a loan of Rs. 5,000/- as the appellants and their ancestors had dealings with the respondent and his family members since long time and the respondent agreed to advance the loan on a condition that the appellants along with their son basavaraj should execute the sale deed purporting to have sold the house to him for a sum of Rs. 4,000/- and to execute the rent deed and to give the consent statement in Village Panchayat board to effect necessary changes. The appellants also contended in their written statement that the loan was to carry interest at the rate of 12 per cent per annum and the respondent agreed to execute a formal deed purporting to reconvey the same to the appellants after the repayment of the said debt. On the basis of these contentions, amongst others, they have prayed for the dismissal of the suit. The trial court framed the following issues:"1. Does the plaintiff prove that he is a landlord and defendants are the tenants of the suit house?2. Does the plaintiff further prove that he rented out the suit house to the defendants on 6-5-1974 on yearly rent of Rs. 120/- for a period of two years under the deed of rent Karar and delivered possession of the suit house to the defendants?3. Do the defendants prove that the rent karar dated 6-5- 1974 is a sham and nominal one?4. Do the defendants prove that the lawyer's notice is not in accordance with law?5. Do the defendants prove that the court fee paid is notcorrect?6. Do the defendants prove that there is no cause of actionfor the suit?7. Does the plaintiff entitled to claim Rs. 305/- as damages?8. Do the defendants prove that the lawyer's notice is not in accordance with law?5. Do the defendants prove that the court fee paid is notcorrect?6. Do the defendants prove that there is no cause of actionfor the suit?7. Does the plaintiff entitled to claim Rs. 305/- as damages?8. What reliefer order?"it is significant to note by perusing the issues framed by the trial court that there is no issue framed by the trial court in respect of the most important contention taken by the appellants regarding the nature of the sale deed dated 30-4-1974. The learned counsel for the respondent contended that since the appellants did not press for raising of such issue, it will have to taken that they had given up the defence. He relied on Thimmappa v B. Subba Rao and Others wherein his Lordship of this court has held that when the defendant had taken a defence of bona fide purchaser for value without notice in the written statement but no issue framed nor was it raised in the lower courts, it must be held to have been given up. In my view, his Lordship has held so on the basis of the facts and circumstances of the case in that ruling. Under Order 14, CPC it is the duty of the court to frame necessary issues which arise out of the pleadings of the parties and the court cannot delegate that duty to the advocates or the parties and if no proper issues are raised, it cannot be said that the court is absolved from that duty as the advocates appearing for parties did not press for raising of that issue. Another ground on which this ruling can be distinguished is that even after the suit of the respondent was decreed, the appellants preferred an appeal in the lower appellate court and even there also they have urged this defence that the sale deed in favour of the respondent executed by them was a nominal one. Therefore, it cannot be said that at "any time the appellants had given up their defence. Therefore, it cannot be said that at "any time the appellants had given up their defence. ( 5 ) THE learned counsel for the respondent further submitted that this is a suit for ejectment of the appellants on the basis of the title of the respondent and there was no necessity for the courts to go into the question of the nature of Exhibit P1, the sale deed, executed by the appellants in favour of the respondent. It is necessary to note at this stage that this contention taken up by the appellants has not been considered by the trial court as well as the lower appellate court. Now, it will have to be seen whether it was necessary for the courts to consider this defence taken by the appellants. ( 6 ) THE learned counsel for the respondent relied on rameshwar Lal Sharma v Sardar Amrik Singh wherein his lordship of the Patna High Court has held as follows:"where the plaintiff sues his tenant for eviction after due notice under Section 106, T. P. Act, and the tenant raises the plea that the plaintiff has no title to the property, the court is not bound to decide the question of title if the tenancy is established. "this ruling is distinguishable because in that case the defence of the defendant was that he was neither the tenant of Sukhdeo singh nor of the respondent in that case. He claimed to have taken settlement of it from the Manager of the court of wards in- charge of the Ramgarh Estate. In the context of these facts, his lordship has held that the question of title cannot be gone into in such a suit. This is made clear by his Lordship's further observation in that ruling as follows:"it is well-known that in suits for eviction of tenants by executors of a will of the landlord or by the agent of the landlord or by a Receiver appointed for the estate of the landlord, question of title of the plaintiff is not decided. "but, in this case, a very specific defence has been taken regarding exhibit P1 the basis of the title of the respondent. "but, in this case, a very specific defence has been taken regarding exhibit P1 the basis of the title of the respondent. Unless the nature of Exhibit P. 1 was decided as to whether it was a nominal sale deed as contended by the appellant or as to whether it was a real and out and out sale deed as contended by the respondent, it could not have been held that the respondent is the owner and landlord of the petition premises. The lower appellate court has referred to a ruling reported in K. Gopalu mudali v A. Venkatesu Mudali and Others wherein it has been held that the question of title cannot be gone into in a suit for rent brought under Section 7 (xi) (cc) of the court Fees Act. From a perusal of the rulings, it is not clear as to what was the defence of the defendant in that case. But, in this case, in view of the specific defence taken by the appellants regarding the nature of exhibit P1, it was incumbent on the part of the courts below to decide as to whether the contention of the appellants regarding the nature of Exhibit P1 is tenable in law. ( 7 ) IT is the contention of the appellants that Exhibit P1 is a nominal sale deed executed by way of security for the loan advanced to them by the respondent with the condition of reconveyance of the property on the repayment of the loan by the appellants to the respondent. When such a defence is taken, the bar under Section 92 of the Evidence Act will not apply. In Smt. Gangabai v Smt. Chhabubai the Supreme Court has held as follows:" (B) Evidence Act (1 of 1872), Section 92 (1) Bar of, as to adducing of oral evidence Applicability. The bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement, but that some other agreement altogether, not recorded in the document, was entered into between the parties. "in view of Section 92 of the Evidence Act and the law laid down by the Supreme Court in the ruling quoted above, the courts have got powers to examine the nature of the document if such a conten- tion is raised. Therefore, both the courts below were not justified in not raising the issue regarding the contention of the appellants in respect of the nature of Exhibit P. 1 and deciding the same. The question of law is answered accordingly. ( 8 ) ANOTHER point that has been argued by the learned counsel for the appellants is that the lease deed executed by the appellants in favour of the respondent is not admissible in law since it is a lease for two years and such a lease deed is compulsorily registerable under the Indian Registration Act. Since the matter is required to be remanded to the trial court, this question is left open for being considered by the trial court afresh. and ( 9 ) HENCE, I proceed to pass the following order:this Appeal is allowed. The judgment and decree of both the courts below are set aside and the matter is remanded to the trial court to frame the necessary issue regarding the contention of the appellants about the nature of Exhibit P. 1 after giving an oppor- tunity to both sides to lead evidence on that issue and dispose of the case in accordance with law. No order as to costs. --- *** --- .