HARI NATH TILHARI, J. ( 1 ) THIS civil revision arises from the judgment and order dated 23. 6. 1994 passed by the principal Munsiff, bijapur, rejecting the applicants' application or modification or recasting of issue No. 2 in original Suit No. 255/89. ( 2 ) THE trial Court in course of proceedings of the case, framed the following issues :- (1) Whether the plaintiffs prove that they are entitled to their 4/5th separate share in the suit property (2) Whether the plaintiffs further prove that the sale deed of suit land executed by defendant no. 1 in favour of defendant No. 2 was neither for legal necessity nor for the benefit of the estate and so also in turn sale deed executed by the defendant No. 2 in favour of deceased Gurasingappa Arakeri not binding upon them in respect of their shares as averred in para 5 of the plaint (3) Whether the defendant No. 3 proves that the present suit is not maintainable for the partition without bringing all their family properties such as R. S. No. 15/2, 69/ 2 to the common hotchpot as averred in para 8 of the written statement? (4) Whether the defendant No. 3 proves that the sale deed of the suit land executed by defendant no. 1 in favour of defendant No. 2 and in turn defendant No. 2 in favour of deceased Guralingappa for the legal necessity of the plaintiffs and also for the benefit of the estate? (5) whether the defendant No. 3 proves that the plaintiffs and defendant No. 1 are estopped from challenging the sale deed of the suit land since they never objected to the land being improved by her? (6) Whether the defendant No. 3 proves that she has made improvement of the suit land by investing Rs. 60,000/- to Rs. 70,000a and that plaintiffs be saddled with the liability of the compensation for the said improvements in her favour as averred in para 13 of written statement? (7) Whether the plaintiffs have paid proper and sufficient court fees? (7b) Whether this Court has no pecuniary jurisdiction to try this suit? (8) What Order, what decree? ( 3 ) THE plaintiffs moved an application for recasting of issues and particularly modification of issue no. 2. (7) Whether the plaintiffs have paid proper and sufficient court fees? (7b) Whether this Court has no pecuniary jurisdiction to try this suit? (8) What Order, what decree? ( 3 ) THE plaintiffs moved an application for recasting of issues and particularly modification of issue no. 2. the plaintiff in his application prayed that issue No. 2 originally framed may be recasted in the form suggested by the plaintiffs as under :-"issue No. 2:-Does the defendant No. 2 prove that the sale of the suit land by the defendant No. 1 in his favour under the registered sale-deed dated 7. 5. 1975 was either for legal necessity or for the benefit of the estate of the joint Hindu family of the plaintiffs and the defendant No. 1 and that the same is binding on the plaintiffs and that further the sale of the suit land made by him (defendant no. 2) in favour of his deceased son-in- law Gurulingappa Kaseppa Arkeri under the sale-deed dated 3. 8. 1983, is valid and legal and that the same is binding on the plaintiffs"the trial Court opined that issues are to be framed on the basis of pleas asserted and denied and the plaintiffs asserted that the defendant No. 1 was addicted to bad vices and he sold the land for no legal necessity and the defendant had no legal necessity to make the transfer of land. So issue had to be framed. The trial Court opined that there is no need to recast issue No. 2 and rejected the application. So feeling aggrieved from the order of the court below rejecting the application for recasting or reframing of issues, the plaintiffs have come up before this court under Section 115. ( 4 ) I have heard Sri. T. Sathyanarayana, learned Counsel for the applicant. Inspite of list being revised, none appeared on behalf of the respondents. ( 5 ) ANY way, the revisioinsts have to satisfy the necessary conditions for calling upon the court to interfere with the order of the court below in exercise of its revisional jurisdiction. Revisionists have to establish that the order amounts to case decided and that the order suffers from jurisdictional error either of refusal to exercise jurisdiction vested or usurption of jurisdiction not vested or court acting illegally with material irregularity in passing the order. Revisionists have to establish that the order amounts to case decided and that the order suffers from jurisdictional error either of refusal to exercise jurisdiction vested or usurption of jurisdiction not vested or court acting illegally with material irregularity in passing the order. The first question is whether it amounts to a case decided. Learned Counsel for the applicants contended that the order may be said to be a case decided as the court below has refused to frame the proper and necessary issue for due trial of the case according to law and had ignored the very consideration on whom the burden lie to prove the legal necessity. Learned counsel contended that issues are framed so that the parties may know on whom the burden is there in the light of law. Learned counsel contended that when Order 14 Rule 5 confers the jurisdictional power on the court to amend or modify or to strike down or add any issue which may be said to be necessary for determining the case in contraversy between the parties and makes it obligatory on it that such an issue shall be made or framed. Right has been conferred on the applicant to move either for framing of additional issue or for striking of irrelevant issue. Learned counsel contended, as such, when this application had been rejected, such an order amounts to nothing but case decided in the sense that it determined the right of a party to amendment of the issue and get proper issue framed. Learned counsel contended that expression "case decided" might have been a subject matter of controversy, but it is said that it cannot be equated with the decision of the suit or proceedings. A decision, learned counsel contended, as to the right of the party for or in relation to proceedings may also be taken to be case decided. In this connection, he referred to the decision of Major Khanna v. Brigadier f. J. Dillon, and the case of Baldevas Shivlal and Another v. Filmistan Distributors (India) private Limited He also placed reliance on a decision of Punjab High Court in the case of sadhuram Bali Ram and Another v. M/s. Ghansham Dass Madan Lal and Others. In this connection, he referred to the decision of Major Khanna v. Brigadier f. J. Dillon, and the case of Baldevas Shivlal and Another v. Filmistan Distributors (India) private Limited He also placed reliance on a decision of Punjab High Court in the case of sadhuram Bali Ram and Another v. M/s. Ghansham Dass Madan Lal and Others. Learned counsel further contended that the existence of a case decided i. e. whether the order impugned amounts to a case decided is the 1st condition precedent to exercise power on this court u/s. 115 CPC which a person invoking this jurisdiction of this court has to establish. ( 6 ) SECTION 115 of C. P. C. defines the expression "case decided" also reads-as under :-"115. Revision :- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such high Court and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to execise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegaly or with material irregularity, the High Court may make such order in the case as it thinks fit : provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- (a) The order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. "explanation :-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. " the expression "order" has been defined in c. PC. "explanation :-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. " the expression "order" has been defined in c. PC. vide section 2 (14) as under :- "2 (14) 'order' means the formal expression of any decision of a Civil Court which is not a decree. " a decision when we talk of it really reveals that ;here must be some contraversy of certain rights of a party in course of proceedings and a decision on that dispute may amount to an order and the expression "order" used in this section does not include within itself the routine orders of refusing or granting adjournment or which are made only for the progress of the case. But orders which have the effect of dedding some right or contraversy either relating to suit or relating to proceedings in the suit. In the case of Major S. S. Khanna v. Brig. F. J. Dillon (supra) their Lordships of the Supreme Court observe :-"the meaning of the expression "case decided" must be sought in the nature of the jurisdiction conferred by section 115, and the purpose for which the high Court were invested with it. "their Lordships, thereafter in paragraph 9 considered the doctorine of supervisory jurisdiction of the High Courts emerging from the constitution of the Presidency High Courts of calcutta, Bombay and Madras and their Lordships, thereafter, observed that :-"it had to be so conferred because in the historical evolution of the powers of the diverse High Courts supervisory jurisdiction to issue writs of certioran and prohibition could not be effectively made in respect of mofussil courts. "in paragraph 10, their Lordships, further observed :-"the necessity arising out ot peculiar circumstances to invest-the High Courts with the power to rectify the errors committed by the subordinate courts in the exercise of their jurisdiction and the consequent investiture of the powers are indicative of the extent of that power. "in paragraph 10, their Lordships, further observed :-"the necessity arising out ot peculiar circumstances to invest-the High Courts with the power to rectify the errors committed by the subordinate courts in the exercise of their jurisdiction and the consequent investiture of the powers are indicative of the extent of that power. The power being one of superintendence and visitorial and vested because of supervisory jurisdiction to issue writs of certiorari of prohibition over subordinate courts in the mufussil could not be exercised, it would be reasonable to hold that it was intended in the absence of any overriding reasons disclosed by the statute (and none such appears on an expression of the statute) to be analogous with the jurisdiction to issue high prerogative writs and the power of supervision under Charter Act and its successor provisions in the Constitution of India. "so their Lordships indicated the background history why this section 115 was enacted. In that context, their Lordships in paragraph 11 observed as under :-"the expression 'case' is a word of comprehensive import. It includes civil proceedings other than the suits and is not restricted by anything contained in the section to the entirity of the proceeding in a Civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relating to an aggrieved litigant where it is most needed, and may result in the perpetration of the gross injustice. "this case was considered in a later decision of baldevas Shiulal and another v. Filmistan distributors (India) Private Limited and Others (supra ). Their Lordships observed :-"but, it was not decided in Major S. S. Khanna's Case, (1964) 4 SCR 409 = ( AIR 1964 SC 497 ) (supra) that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of section 115 of the Code of Civil Procedure. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of section 115 of the Code of Civil Procedure. "it is in this context the Legislation has tried to define "case decided" as per the observations quoted above. The explanation says, every order deciding an issue in the course of a suit or other proceedings is included within the framework of expression any case which has been decided. The expression "order" has been used in the sense in which it has been defined under Section 2 (14) of the Code. It means it is a decision and a decision may mean that there is some issue or some point which has been decided and not a routine order of adjournment etc. Now taking this to be the yardstick that a case decided means an order deciding some contraversy or some right of the party, may be in relation to the proceedings of the suit or deciding any issue involved in the suit, in my opinion, 'the order impugned1 may be said to be a case decided. Order XIV Rule 5 confers a power and duty on the court to amend or modify an issue or to frame additional issue as may be necessary for determination of the contraversy in the case. It means as mentioned earlier, issues may be framed and the purpose of framing the issues may be said to indicate the party what is in the despute as well as to indicate the burden of proof keeping in view the provisions of law of evidence. The law of evidence is that if a person alleges that a certain property is sold for certain legal necessity or for the benefit of the family, it is for the party to prove that. Therefore, issue may be made indicating on whom burden lies. It is one of the basic principles that issues are to be framed keeping in mind the planning of the parties and the provisions of Order XIV. Therefore, issue may be made indicating on whom burden lies. It is one of the basic principles that issues are to be framed keeping in mind the planning of the parties and the provisions of Order XIV. No doubt under Rule 5 of Order XIV CPC the power has been conferred on court to modify the issues at the instance of the party seeking modification of the issues as it thinks fit and proper for the decision of the case and may pass orders either allowing or rejecting. So order under Order 14 Rule 5 amounts to a case decided. When I so observe, I find support for my view I am taking from the decision of the Full Bench of the Punjab High Court in the case of M/s Sadhu Ram Bali and another v. M/s. Ghansham Dass Madan Lal and others (supra ). In a case where a wrong issue has been framed putting wrong burden on a party, it may definitely lead to wrong decision of the case on merits and it may have a tendency in resulting to an erroneous decision if such an issue has been allowed to remain on the record. So if the application has been rejected and order is allowed to stand particularly an order on an application for recasting of the issue indicating the right of the party on whom burden lies, in my opinion, that may amounts to a case decided. ( 7 ) FOR exercise of jurisdiction under Section 115, the applicant has to establish that the jurisdictional error in the order impugned, may be that the court below has acted illegally or with material irregularity in exercise of jurisdiction or that court has failed to exercise the jurisdiction vested in it and failed to perform the legal duty cast on it under the provisions of law. When law requires things to be done and confers power on it, then the court c- the authority refuses to do it either on the basis of wrong decision, it may be said to be a case of illegal refusal to exercise jurisdiction. Order XIV rule 1 casts a duty on the court to frame issues on the basis of facts and porposition of law as affirmed and denied by the parties. Order XIV rule 1 casts a duty on the court to frame issues on the basis of facts and porposition of law as affirmed and denied by the parties. It has to be verified from the pleadings of the parties on what material proposition of facts and law the parties are at variance and shall thereupon framed the issues in respect thereof on which right decision of the case appears to depend. The expression "on which right decision of the case depends" is very material under Order XIV Rule 1. The Court has to see on what poin, of fact or law the parties are at variance find secondly it has to see on which issues the right decision depends. The right decision of the case depends on the issues as are framed indicating the right burden of proof. If according to the party, for right decision, a proper issue has not been framed, it is for the party to approach the court for modification and framing of the issues on which right decision could be arrived at. If the court while framing the issues, ignores the basic principles of law as well as the pleadings, then it may be said that the court has acted illegally because law requires the court to look to the pleadings and look to the assertions and keeping in mind to what the party has to prove and indicate the party on whom the burden lies. In the present case, as per the pleadings of the parties i. e. , uncertified'copy of the plaint produced before me in paragraph 5 of the plaint, plaintiff has alleged that, "the defendant No. 1, has sold the suit land for Rs. 6,000/- to the defendant no. 2, by registered sale-deed dt. 7. 5. 1975. The said alienation was neither for legal necessity nor for the benefit of the estate. The defendant No. 1 is addicted to bad vices like drinking liquor and playing cards. The income derived from the suit land was quite sufficient for the maintenance of the family of the plaintiffs and defendant No. 1 and there was practically no compelling occasion for the defendant No. 1 to incur debts for the maintenance of the family and there was no debt to the family as also then. The income derived from the suit land was quite sufficient for the maintenance of the family of the plaintiffs and defendant No. 1 and there was practically no compelling occasion for the defendant No. 1 to incur debts for the maintenance of the family and there was no debt to the family as also then. " these allegations have been made, no doubt, in the plaint to show that the there was no legal necessity nor for the maintenance of the family the property was sold nor the benefit of the estate. The defendant No. 3 in paragraph no. 2 has asserted, "plaintiffs have no subsisting interest in the suit land, which their father manager sold to Amateppa Annigeri for legal necessity and family needs like payment of past debts as mentioned in annigeri's sale-deed dt. 7. 5. 1975. " again in paragraph 5, defendar t No. 3 has asserted that, "it is a fact that defendant No. 1 sold the suit land for Rs. 6,000/- to defendant No. 2 on 7. 5. 1975. But, it is not a fact that the said alienation was not for legal necessity nor for the benefit of the estate. It was for legal necessity and for the benefit of the estate and it was only after due enquiry being made in this regard by Sri Annigeri and being satisfied about the same that defendant No. 2 annigeri purchased the land from murteppa and hence the said alienation binds plaintiffs. Jt is false to allege th, defendant No. 1 was addicted to liquors and gambling. A false allegation is being made, to this effect in collusion with defendant No. 1 to justify this suit" ( 8 ) LOOKING to the pleadings of the parties, it appears that thepiaintiffs' case was that sale-deed had not been executed by defendant no. 1 in favour of defendant No. 2 for any legal necessity. But defendants allege that the sale-deed was executed for legal necessity and for the benefit of the estate. Defendants asserted that they had made due enquiries in regard thereto and were satisfied. 1 in favour of defendant No. 2 for any legal necessity. But defendants allege that the sale-deed was executed for legal necessity and for the benefit of the estate. Defendants asserted that they had made due enquiries in regard thereto and were satisfied. It is one of the well settled principles of law that a person relying on a sale-deed and when the sale-deed is challenged, the burden lies on him to prove the legal necessity for which the sale is alleged to have taken place or to show that the sale transaction was for the benefit of the family in cases where any properties are joint family properties, and atleast to establish that he had made due and reasonable enquiries and satisfied himself that there did exist the legal necessity to make sale. Bare allegation is not sufficient that there was legal necessity for making transfer or it was for the benefit of the family. Burden is on the purchaseer i. e. , the person claiming right from the purchaser of the property, to prove that transfer was made for legal necessity or it was intended for the benefit of the family and that he had made necessary enquiries and satisfied himself. Issue No. 2 has not been casted properly. The revision petition and application of amendment or modification of issue has to be, as such, allowed. Issue No. 2 in view of issue No. 4 on record should have been casted as under :- issue No. 2: 2 (a) Whether defendant No. 3 prove that the sale-deed of the suit land executed by the defendant No. 1 in favour of defendant No. 2 and in turn by defendant no. 2 in favour of deceased Gurulingappa had been for the legal and for the benefit of the estate, if not its effect? 2 (b) Whether defendant No. 3 proves that he had made due and reasonable enquiries and satisfied himself as to the existence of legal necessity? If yes, its effect. 2 (c) Whether defendant No. 1 has been addicted to vices as alleged in the plaint? if so, its effect? 2 (d) In case the finding on issue No. 2 (a), (b) and (c) is in negative, whether defendant No. 2 got any right or title under the sale-deed in question to transfer that right to defendant No. 3. If the sale transaction dated 7. 5. if so, its effect? 2 (d) In case the finding on issue No. 2 (a), (b) and (c) is in negative, whether defendant No. 2 got any right or title under the sale-deed in question to transfer that right to defendant No. 3. If the sale transaction dated 7. 5. 1975 was not for legal necessity and was not for the benefit of the family, whether it is binding on the plaintiffs and whether it passed on any right or title to defendant No. 2 and which defendant No. 2 could transfer to defendant No. 3, if not its effect? revision-, as such, is allowed. Issue No. 2 as framed by the trial Court is deleted and in its place issues No. 2 (a) to (d) are recasted. 1 have interferred with the order rejecting the application and modified the issues because if the trial Court's order rejecting modification ot issue would have been allowed to stand, it might have resulted in materially errouneous decision while Order XIV requires issues to be framed correctly on issues of fact and on issues of law. The trial Court illegally rejected the application and passed an order ignoring the material provisions of law and that order amounts to illegality. As such, the revision is allowed. Costs of the revision are made easy. Revision allowed. Issues as framed by trial Court to be deleted and recast. --- *** --- .