JUDGMENT Vikramaditya Prasad, J. 1. The following substantial question framed at the time of admission of this second appeal is required to be answered. Whether in view of admission made by PW 1 Gorachand son of Budhu Kumhar that Bhikhu Kumhar and Budhu Kumhar partitioned half of each plots, the learned Court below could have ignored the admission and passed a decree for partition? 2. The short facts that gave rise to aforesaid question are as follows--In Schedule A of the plaint there are different plots, namely, plot Nos. 326, 331, 483, 484, 575. 581. 1531. 2849, 2850, 2196, 3284, 3294, 3292 bearing total are of 0.89 acres appertaining to Khata No. 205 in Mazua Bhagsuma within the P.S. Govindpur district Dhanbad. According to the plaintiff these lands were purchased by two persons namely Budhu Kumhar and Bhikhu Kumhar from one recorded tenant Sitaram and after the purchase the aforesaid two persons Budhu Kumhar and Bhikhu Kumhar exercised their diverse acts of possessions over those plots and in the year 1974 Budhu Kumhar dies leaving behind his wife Punia Dasi and one son Goraehand Kumhar (defendant No. 1) and a grand-son of his predeceased son Sadhu Kumhar and his wife Kamla Devi and a grand-daughter Latika Dasi and two daughters, namely Alia Dasi and Sajni Dasi, Bhikhu Kumhar also died twenty years back leaving behind his heirs, namely, Sunia Bala Dasi and three sons, namely Kanhai, Mahanand and Mahadeo Kumhar (All those heirs of Budhu Kumhar and Bhikhu Kumhar have been made defendants 1 to 11 in the suit). Thereafter all of them remained in joint possession and Goraehand and Nimai Kumhar conveyed their interest while joint in possession in the plots Nos. 483 and 484 measuring 0.11 dismals to the extent of their share to plaintiff No. 1 by a Registered sale deed dated 9.4.1980 (Exhibit-2) and similarly. Milani Bala Dasi plaintiff No. 2 who is the wife of plaintiff No. 1 has purchased by a registered deed dated 16.3.1983 from Sunia Bala Dasi wife of Bhikhu Kumhar the land to the extent of her share in the aforesaid two plots 483 and 484 (Exhibit-2/a). Thereafter the plaintiff Nos. 1 and 2 came in Khas possession to the extent of their purchase in the aforesaid plots along with other co-sharers and cultivated it. Thereafter the plaintiff Nos. 1 and 2 came in Khas possession to the extent of their purchase in the aforesaid plots along with other co-sharers and cultivated it. Further case of plaintiff is that as the value of the land has escalated and it has become difficult for him to enjoy the property along with other co-shares a partition is required, consequently the plaintiff filed a partition suit for a decree of partition in respect of plot Nos. 483 and 484 to the extent of 0.11 dismals. 3. The only defendant who contested the case is defendant No. 15, his case is that in fact this is a title suit filed in the garb of partition suit for declaring the title and recovery of possession by the plaintiff and the plaintiff has got no right, title and interest rather all his registered sale deeds are simply paper transactions. The specific case of the contesting defendant No. 15 is that, Budhu Kumhar and Bhikhu Kumhar were not own brothers and in their lifetime they partitioned the entire land purchased by them jointly and therefore there is no question of further partition of the land as all the land had been partitioned during the life time of Bhikhu Kumhar prior to the year 1974 rather in the year 1971 the son of late Bhikhu Kumhar sold 0.11 decimals of land of plot Nos. 483 and 484 (disputed land) to one Tek Bahadur for valuable consideration by a registered sale deed (Ext-C/1) and put that Tek Bahadur in possession thereof and since then possession continue with him and by registered sale deed (Ext-C) the said Tek Bahadur sold 5-1/2 decimals land to contesting defendant No. 15 and put him possession. In nut shell the contesting defendants denied the jointness of the property and set out a case that the said land had already been transferred to Tek Bahadur much prior to alleged purchase by the plaintiff consequently as the partition had already taken place there is no question of fresh partition. 4. The main issue before the trial Court was whether the plaintiff was entitled for a decree as claimed for? 4. The main issue before the trial Court was whether the plaintiff was entitled for a decree as claimed for? On consideration of the evidence oral and documentary, and also considering the evidence of PW 1 who is also defendant No. 1 the trial Court dismissed the suit as it found the following facts on evidence :-- "Moreover the heirs of Budhu and Bhikhu are defendants in the present suit, but even then they have not contested the suit which goes to show that they have already partitioned their property (P-12 of the L.C. Judgment)" Earlier in the same para he said : "PW 2 (It should have been as per record PW 1) who is son of Budhu Kum-har has himself admitted in his evidence that after purchase from Sita Ram, Budhu and Bhikhu divided the land." 5. Against the judgment the impugned appeal was preferred and the first appellate Court on consideration of the evidence reversed the finding of the trial Court and decreed the suit. Against the appellate judgment and decree the defendants appellants have filed this Second Appeal. 6. One thing that requires necessary reference is that the learned trial Court simply dismissed the suit but it did not say as to against which of the defendants the order was passed ex parte. On perusal of the lower Court record it transpires that no notice had been served upon the defendant Nos. 2 to 11. The Order sheet dated 25.4.1985 is very specific which directs the plaintiff to take fresh step for service of summons upon defendant Nos. 2, 3, 4, 5, 7, 8, 9, 10, 11, 12 and 14, such order was repeated on different dates. There is no recording in the order sheet that in fact the summons were served upon these defendants. Therefore it cannot be said that these defendants, who were none else than the legal heirs of the original purchasers Budhu Kumhar and Bhikhu Kumhar had been served with notice and consequently non-contesting of the suit by them will not amount to their admission in favour of either partys case. The trial Court finding (supra) that this circumstances that they did not contest the suit indicate partition is based on wrong premise. 7. Now I take the actual question framed in this S.A., PW 1 admittedly is the defendant No. 1 and is the son of Budhu Kumhar. The trial Court finding (supra) that this circumstances that they did not contest the suit indicate partition is based on wrong premise. 7. Now I take the actual question framed in this S.A., PW 1 admittedly is the defendant No. 1 and is the son of Budhu Kumhar. The whole question of admission roves round the evidence witness. In paragraph 2 of his examination in chief he says as follows :-- Sitaram Ne Yah Jamin Budhu and Bhikhu Ko Bech Diya Dono Bhai The. Jamin Kharidne Ke Bad Donon Adha Adha Jamin Pratyek Bat Liya. Budhu Kumhar Mar Gaya Budhu Ki Stri Punia (Prati Wadi 4) Jivit Hai Mera Bara Bhai Mar Gaya Uski Stri Kamla (Prati Wadi 6) Jivit Hai Sadhu Ka Larka Nimae Aur Latika Jivit Hai Sadhu Mera Bara Bhai Tha Mujhe Do Bahan Hai Latika Aur Nemai (Prati Wadi 5 and 6). 8. The question is whether this evidence is the admission and if so whether it can be used against other defendants (other legal heirs of Budhu and Bhikhu have not appeared for want of notice). The learned appellate Court had considered this matter and found that though this witness says that there has been a partition between Budhu Kumhar and Bhikhu Kumhar but he admits subsequently that the partition had not taken place in Court and, he again says that the partition had taken place in presence of relatives in the Court. He does not know in which year the partition had taken place. The learned appellate Court held that in fact this witness is not competent to tell about the factum of partition. In this context the learned trial Court also considered the evidence as given by defendant No. 15. In the word of the learned appellate Court itself : "The witness stated that Budhu Kumhar and Bhikhu Kumhar had partitioned the land of Schedule A of the plaint but his cross-examination indicated that he is not aware of the right time of partition" 9. I do not find any reason to differ with the appreciation of this evidence made by the learned appellate Court. I do not find any reason to differ with the appreciation of this evidence made by the learned appellate Court. There is no evidence that the PW 1 (defendant No. 1) had made such admission that partition had been done in the life time of Budhu Kumhar and Bhikhu Kumhar prior to the execution of the sale deed which he executed in favour of the plaintiff and for the first time this admission comes in court during trial. He also did not file written statement and as stated above other defendants who were the legal heirs had not appeared for want of notice. Section 18 of the Evidence Act read as follows :-- 18. Admission--By party to proceedings or his agent.--Statements made by a party to the proceeding, or by an agent to any such party whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions. By suitor in representative character.--Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by- (1) By party interested in subject-matter.--Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested; or (2) By persons from whom interest derived.--Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements. 10. The PW 1 has not filed WS in the representative capacity and when he made the aforesaid statement he was not authorised by non-contesting defendants to make such admission. This statement was made for the first time in the Court when the dispute had already occurred and this PW 1 was left with no interest in the property. Meaning thereby that the admission has not been made during the continuance of the interest of the PW 1 in the property, as he had parted with his interest (Exhibit-2) It was held in Galstaun v. Mirza. 73 1C 428 : AIR 1924 Oudh 19.]- Statement by person from whom the" parties have derived interest are admissible only when the admissions are of a date prior to the date of the transfer. 11. 73 1C 428 : AIR 1924 Oudh 19.]- Statement by person from whom the" parties have derived interest are admissible only when the admissions are of a date prior to the date of the transfer. 11. This admission by PW 1 as it was not made during the continuance of his interest and also not made prior to the date he transferred his interest in those lands, cannot be treated as an admission. Moreover in Recital of the sale deed (Ext.-2) executed by PW 1 this much has only been recited-- "Hindi version not visible (Sic) This in English will mean "5-1/4 discimal in plot 483 and 484 in the mid from western is of the executants/ sellers and this was in the name of father and grand father respectively of the sailors" Thus this recital does not clearly say that due to partition between Budhu and Bhikhu, that land fell in share of Budhu. This only speaks of 50% interest of Bhikhu, and not of partition. Thus the recital in the registered sale deed do not go to prove partition and allocation of share, metes and bounds. Therefore the learned appellate Court rightly did not consider the statement of PW 1 as an admission and on the basis of entire evidence came to a finding that partition had not taken place between Budhu Kumhar and Bhikhu Kumhar and consequently allowed the appeal. 12. A argument has been raised by the learned counsel for the appellant relying on a decision of the Apex Court reported in 2001 (3) SCC 179 that the High Court, in Second Appeal can decide other substantial questions though not framed initially. The question is whether this principle can be applied in the facts and circumstances of the case? One perusal of the memorandum of appeal it appears that besides the question of admission many other "questions were framed two of these are as follows : (1) Whether in view of the fact the property in question was not purchased by the plaintiff from Bhikhu Kumhar the Court below could have held that the plaintiff has acquired title and is in the possession of the property in question and further (2) whether the Court below has misconstrued the title as such the judgment is vitiated? 13. In spite of these questions the Court initially framed the question which has been already answered. 13. In spite of these questions the Court initially framed the question which has been already answered. Before giving reasons whether or not these questions should be discussed I wish to revert to the claim of plaintiff and defendant in suit. The contesting defendant made out a case that 11 dismals of land in plot Nos. 483 and 484 was purchased in the year 1971 from Kanhai son of Bhikhu Kumhar by a registered sale deed by one Tek Bahadur who was also given possession thereof since then Tek Bahadur came in possession of the land and subsequently by registered sale deed (Ext. C/1) Tek Bahadur sold 5-1/2 dismals of land to the contesting Sudhir Singh Choudhary and executed on 2.2.1983 and he came in possession thereof through Tek Bahadur. Thus the defendant made out a ease that the land which was purchased by Bhikhu Kumhar and Budhu Kumhar had already been partitioned and the land in dispute (Schedule B land) fell in the share of the sons of Bhikhu Kumhar. Consequently they sold the land to Tek Bahadur without any objection from Budhu or his descendant and therefore the plaintiff has no right title over such land, besides no claim for partition as the vendors of the plaintiff Nos. 1 and 2 has no interest in the land in dispute, therefore could not execute the sale deed. The case of the plaintiff is that they purchased the land by (Ext. 2 and 2/1) which was executed on 9.4.1980 and 6:3.1983 respectively. Though the defendant has said that the partition suit has been brought but in fact it is a title suit in garb of partition suit. 14. No such issue whether the plaintiff has got title or possession over the suit land was framed and the suit was treated as simple partition suit. No doubt that the learned trial Court in the impugned judgment found that Tek Bahadur was in possession of the suit land right from the year 1971 and this long possession follows his title and consequently title and possession flow to contesting defendant Sudhir Singh Choudhary (purchaser from Tek Bahadur) who had also raised boundary wall over the suit land. No doubt that the learned trial Court in the impugned judgment found that Tek Bahadur was in possession of the suit land right from the year 1971 and this long possession follows his title and consequently title and possession flow to contesting defendant Sudhir Singh Choudhary (purchaser from Tek Bahadur) who had also raised boundary wall over the suit land. The learned first appellate Court also confined only to the issues of partition but it appears to me that in view of the pleadings and in view of the fact that the sale deed in favour of Tek Bahadur Singh was of the year 1971 though the said Tek Bahadur Singh sold the said land to the contesting defendant on 2.2.1983 then admittedly the sale deed in favour of Tek Bahadur was nine years prior to the sale deed of plaintiff No. 1. Thus in substance there is a contest with regard to the purchase of same land on the strength of these registered deed of sale transferred by different persons to different persons. In such a situation it was necessary to examine whether by virtue of those registered deeds, in effect title passed or not and if so to whom. If it is held that the title passed in favour of Tek Bahadur of the same disputed land then there is no question of partition but if it is held that title passed to the plaintiff Nos. 1 and 2 by virtue of their sale deed then also there is no question of partition because the entire land of the disputed plot is involved in these registered sale deeds. Therefore the learned trial Court will examine this afresh on evidence oral and documentary as an issue and dispose of the suit according to law. 15. Thus relying on decision of the Apex Court reported in 2001 (3) SCC 179 in the interest of substantial justice aforesaid direction is given and in Second Appeal the matter is remanded to the trial Court for deciding the issue as indicated above according to law within a period of five months and to pass a fresh judgment. There will be no costs.