JUDGMENT : D.M. Patnaik, J. - The plaintiffs are in appeal against a remand Judgment of she learned First Additional District Judge. Puri, allowing the appeal of the defendants thereby setting aside the Judgment of the lower Court remanding the suit for fresh disposal, the suit being one for litle, possession and injunction. 2. The disputed land appertains to 1962 settlement plot No. 199 measuring Ac.0. 358 decimals and plot No. 200 measuring an area of Ac.0. 314 decimals which corresponds to Sabik Plot Nos. 164, 166 and 167 under Khata No. 24 of mouza Jagamara and 1962 settlement Khata No. 351 and plot No. 911, total Ac.0. 764 decimals of Baramunda. The case of the plaintiffs in short is, Arta the common ancestor left behind him four sons viz., Balunki, Laxman, Hari and Arjuna. In an amicable partition by metes and bounds Balunki, the eldest son got 1/4th of the property which was inherited by his son Ananda. Ananda was exclusively recorded in respect of the said property in 1913 settlement. After his death, Kulamani and Banchhanidhi. his two sons, amicably partitioned the same. Kumalani getting Ac.0.797 decimals under plot No. 235; and Banchhanidhi getting plot Nos. 164. 166 and 167, total measuring Ac.0. 766 decimals under Khata No. 24. This partition is claimed to have taken place about 66 years back. The plaintiffs being the three sons of Banchhanidhi claim the properly on she basis of succession. Narasingha, defendant No. 2 represent the other branch of Kumalani. It is further case of the plaintiffs that, Kulamani. grandfather of defendant No. 2 after such partition sold away his land measuring Ac.0. 079 decimals under Khata No. 24, plot No. 235 to one Maguni Malia and the latter got himself mutated in respect of that land in She year 1927. The plaintiffs were constrained to file the suit since Khetrabasi son of Kulamani was wrongly recorded along with the plaintiff's father in the 1962 settlement and dispute arose among the parties during the current settlement. It is the case of the plaintiffs that they being the owner in possession of the land, have been paying rent to the Government and in the current settlement Parcha has been issued in their name. 3. Defendants 1 and 3 jointly filed a written statement wherein they denied of any partition between Kulamani and Banchhanidhi. It is the case of the plaintiffs that they being the owner in possession of the land, have been paying rent to the Government and in the current settlement Parcha has been issued in their name. 3. Defendants 1 and 3 jointly filed a written statement wherein they denied of any partition between Kulamani and Banchhanidhi. It is their case that, in She year 1934 the father of defendant No. 3 purchased a portion of the share of Laxman the younger brother of Balunki for Rs. 185/- on 1.3.1934 under a registered sale-deed. On 26.6.1936 their mother Ahalya purchased Ac. 0.344 decimals of land by registered sale-deed and possessed the same. She also purchased on 7.10.1945 Ac.0. 096 decimals of land from out. of the disputed plots from one Satrughan Chotray, which the latter had purchased by court-sale in a certificate case. Thus, according to defendants 1 and 3, their mother became the absolute owner of the entire suit property and possessed the same through bhag tenant till 1959. Defendant No. 3 thereafter possessed the same in his own right, title and interest and subsequently sold the land to defendant No. J for a consideration of Rs. 7000/- under two registered sale deeds and since then defendant No. 1 has beers in possession of the same. Dispute arose between the parties when defendant No. 1 wanted to. be recorded in the current settlement. In a proceeding u/s 145. Cr.P.C. possession of which was declared in favour of defendant No. 1 and he was appointed as receiver. It was alternatively claimed that even though the defendants had not title, they perfected their title by adverse possession. Defendant No. 2 filed a written statement supporting the case of the plaintiffs. 4. The trial Court framed the following issues : (1) Is the suit maintainable ? (2) Is there any cause of action to file, the suit ? (3) Is the suit barred by limitation ? (4) Has the plaintiffs any right, title and interest over the properties described in Schedules B and C of the plaint ? (5) Is the Judgment and order passed in Misc. Case No. 317 of 1983 by the Executive Magistrate, Bhubaneswar void ? (6) Is the suit bad for misjoinder of necessary parties ? (7) To what relief the plaintiff is entitled ? (5) Is the Judgment and order passed in Misc. Case No. 317 of 1983 by the Executive Magistrate, Bhubaneswar void ? (6) Is the suit bad for misjoinder of necessary parties ? (7) To what relief the plaintiff is entitled ? (8) Have the defendants perfected their title over the suit land by adverse possession ? (9) Do the suit plots of running settlement plot numbers 424 to 427 correspond to 1962 settlement plot Nos. 199 and 200 which correspond to plot Nos. 164, 166 and 167 of the 1913 settlement ? Heard Shri S. P. Mishra for the appellants and Mr. B. H. Mohanty, learned counsel for respondents. 5. Law is well settled that framing of issue becomes immaterial when parties have laid evidence touching that issue. In the present case, the plaintiffs adduced documentary as well as oral evidence. The lower Court held that the materials were not sufficient to prove partition and thus plaintiffs failed to prove their case that in fact Ananda, the great grant-father did ever succeed to the interest of Balunki, though in para-6 of the Judgment while discussing (he title of the plaintiffs, the lower Court held that there was no dispute that in the 1913 settlement the suit land had been recorded in the name of Ananda Nayak as per Ext. 1 and under Ext. 4 sons of Ananda Nayak were recorded in 1962 settlement. Neither of the Courts, particularly the learned lower appellate Court discussed as to the effect of such recording of the land in question in the settlement papers. In para-8 of the Judgment, the lower Court has given the reasons for holding that the plaintiffs failed to prove previous partition. While discussing the evidence of defendant No. 2. examined as P. W. 3, who supported the case of the plaintiffs, the Court ob served that the said witness had no other information about such partition except that he came to know from the settlement papers and the lower Court considered his further evidence that except the R.O.R. he has not seen any other document regarding partition. It was incumbent on the part of the learned lower appellate Court to analyse the reasons given by the lower Court, and come to its own finding either way. The other reasons given by the lower Court is that plot Nos. It was incumbent on the part of the learned lower appellate Court to analyse the reasons given by the lower Court, and come to its own finding either way. The other reasons given by the lower Court is that plot Nos. 164, 166 and 167 were subject-matter of dispute in Title Suit No. 99 of 1934 between sons of Raghu and one Gulzar Ram. Exts. M and N certified copses of Judgment and decree in O.S. No. 99/34, according to the lower Court, clearly proved that the suit land under Sabik Khata No. 24 fell to the share of one Han and because of this Banchhanidhi being aware of such facts did not include suit property in T. S. No. 380/37-I filed by him against Chhotelal Ram and Kulamani Paikray. This finding of fact also has not been touched by the lower appellate Court. The lower Court also took into account Ext.E the sale-deed dated 25.6.1936 in which Banchhanidhi Paikray, father of the plaintiff, was a witness and by this document Kulamani and Daitari sold Plot Nos. 166 and 167 in favour of the mother of defendant No. 3. From this, the lower Court held that Banchhanidhi had no title or possession. The learned lower appellate Court also did not deal with this. On the basis of this analysis and other reasons given in the Judgment, the lower Court found that the plaintiffs to have failed to prove the title and possession. Same way the lower appellate Court also should have dealt with the materials from the side of the plaintiff with regard to title and possession. 6. The learned lower appellate Court vide para 11 of the Judgment observed that, since the case of the plaintiffs based on previous partition, it was incumbent for the lower Court to frame an issue. This observation, without discussing the materials on record, that is, settlement papers and rent receipts, etc. and their effect on the issue of previous partition, makes the Judgment vulnerable. In this regard, it can be said that both parties laid evidence and there were certain documents as well as oral evidence, the learned lower appellate Court should have given a finding as to whether the reason given by the trial Court that the plaintiffs failed to prove title was correct or not. In this regard, it can be said that both parties laid evidence and there were certain documents as well as oral evidence, the learned lower appellate Court should have given a finding as to whether the reason given by the trial Court that the plaintiffs failed to prove title was correct or not. Directing the lower Court to frame an issue on partition is rather felt unnecessary since parties have laid evidence, both documentary and oral. In last part of para-11, the Court held that the lower Court did not properly appreciate and valued the oral as well as documentary evidence available on record while deciding the suit. This is found to be a bald observation. The learned lower appellate Court become oblivious to the fact that, it was also a fact finding court and therefore should have given its own finding. This having not been done, the Judgment is liable to be set aside. 7. In the result, the appeal is allowed, Case is remitted back to the lower appellate Court to give a finding afresh and, if necessary, it is at liberty to allow any additional, evidence that may be tendered by the parties only with regard to fact of partition It unnecessary to frame issues on the question of partition..No cost. Final Result : Allowed