JUDGMENT Aruna Suresh, J. (Oral)-Plaintiffs Jayadev Patnaik and other (Respondents in the appeal filed a suit being T.S No.20 of 1979 against the Defendant (Appellant in the appeal) seeking declaration that the sale deed dated 4.1.1964 (Document No.12/64 of S.R.O., Parlakhemundi) and the by Additional decree passed Subordinate Judge, Berhampur in T.S. No.17/70 relating to ancestral dwelling house situated in the southern row of Karana Street, Post & P.S Parlakhemundi town in Ward No.6 bearing Municipal Assessment No.931/3, as detailed in the schedule annexed to the plaint are void, illegal and inoperative in law as against their right, title, interest and possession. The said suit was dismissed by the Learned subordinate Judge vide his detailed Judgment and decree dated 26.8.1982. 2. Aggrieved by the said Judgment and decree of the Trial Court, Appellant filed an appeal before the Addl. District Judge, Ganjam-Berhampur. The Appellate Court allowed the appeal vide Judgment and decree dated 19.10.1985 set aside the Judgment and decree of the subordinate judge and decreed the suit of the Plaintiffs in full with cost throughout. 3. Defendants have assailed the Judgment and decree of Appellate Court in this appeal. 4. Vide Order Dated 6.9.1988, the appeal was admitted and following additional substantial question of law was formulated. Whether the decree passed by the earlier suit against the father of the Plaintiff would operate res judicata so far as the present suit is concerned? 5. Appellant has filed a memo for formulation of additional substantial question of law as suggested by him in the memo. 6. Counsel for the Respondents has agreed to the formulation of additional substantial question of law. Accordingly, following additional substantial question of taw is formulated. Whether the First Appellate Court rightly decided the question as to whether the sale deed is void on being executed for no legal necessity, in the absence of any proper issue having been formulated and without affording opportunity to the parties to lead evidence on the same? 7. In brief, the case of the Plaintiffs is that they are related as brother and sister born out of the wedlock to Sukumari Manjari @ Binodini Devi through Defendant No.2 Raghaba Chandra Patnaik. Sukumari Manjari Devi died in the year 1967 and after few years of her death, Defendant No.2 deserted the Plaintiffs and left Parlakhemundi. 7. In brief, the case of the Plaintiffs is that they are related as brother and sister born out of the wedlock to Sukumari Manjari @ Binodini Devi through Defendant No.2 Raghaba Chandra Patnaik. Sukumari Manjari Devi died in the year 1967 and after few years of her death, Defendant No.2 deserted the Plaintiffs and left Parlakhemundi. Since then, Plaintiffs are residing in the suit schedule house, being their ancestral residential house, under the care and guardianship of Rarnakrushna Patnaik, their uncle (Plaintiffs were minors at that time when the suit was filed). Defendant No.2 sold the impugned Property to Defendant No.1 vide sale deed dated 4.1.1964 thereby depriving the Plaintiffs of their legitimate share in the said property. 8. A suit was filed by Defendant No.1 against Raghava Chandra Patnaik which was decreed in favour of Defendant No.1. Plaintiffs had filed an objection petition in the Execution Petition No. 2/76 filed by Defendant No.1 for execution of the said decree. The objection petition was allowed vide Order Dated 15.4.1977. Defendant No.1 filed Revision Petition No.210/77 in the High Court which was allowed vide Order Dated 27.7.1979. Since the Plaintiffs reserved their right to agitate their claims in the suit property by way of a separate suit, they were allowed to do, if so advised. This resulted into filing of the present suit. 9. It is further case of the Plaintiffs that they are Hindus by caste and are governed by Mitakshara School of Hindu law. 10. Plaintiff No.1 was born on 16.6.1963 while Plaintiff No.2 was born on 23.4.1961. Therefore, the sale of the suit scheduled house vide sale deed dated 4.1.1964 in favour of Defendant No.1 having been executed subsequent to the birth of Plaintiff No.1 is a void document and inoperative in law, qua undivided interest of the Plaintiffs. 11. Defend ant No.1 in the written statement resisted the ownership claim of the Plaintiffs, disputed the inter se relations of the Plaintiffs and also their respective date of birth. The case of Defendant No.1 is that Plaintiff No.1 was born after the execution of the sale deed in his favour and therefore had no right in the suit property which stood transferred in his name (Defendant No.1) and Plaintiff No.2 being a female child had no right or interest in the ancestral residential house i.e. the suit property. Additional Substantial Question of law. 12. Mr. Additional Substantial Question of law. 12. Mr. B.B. Ratho, Counsel appearing for the Appellant has submitted that the Appellate Court went wrong in deciding that the sale was not for legal necessity without framing any issue and without affording appropriate opportunity to the parties to lead additional evidence. 13. Counsel for the Respondent, Mr. S.S. Rao while agreeing with the submissions of the Counsel for the Appellant, has also submitted that fair opportunity should have been awarded to the parties to lead evidence to prove, if the sale of the impugned property was for legal necessity and was for the benefit of the minors or not. 14. The Trial Court framed following five issues on the pleadings of the parties. 1. Whether the date of birth of Plaintiff No.1 was 16.6.1963 or 15.3.1963 and whether he was born to Sukumar Manjari Patnaik and Binodini Patnaik? 2. Whether Sukumari, Manjari Patnaik and Binodini Patnaik were one and same lay or they were different ladies? 3. Whether the Plaintiffs have acquired any right, title and interest in the suit schedule house and whether Defendant. No.2 was the owner of the suit schedule house when Plaintiff No.1 was born? 4. Whether the Court fee paid by the Plaintiffs in this suit is proper? 5. To what relief, if any, the Plaintiffs are entitled? 15. The Trial Court while deciding issues 1 & 3 concluded in para 10 of the Judgment as follows: "In view of the aforesaid facts and circumstances, I am inclined to hold that Plaintiff No.1 was not born on 16.6.1963 to Sukumari Manjari Patnaik through Defendant No.2, Raghava Chandra Patnaik and Defendant No.2 was not the owner of the suit schedule house when Plaintiff No.1 was born on 6.11.1966 therefore, the Plaintiffs have not acquired any right, title and interest in the suit schedule house. Hence, both these issues are answered in the negative against the Plaintiffs." 16. Since the Trial Court was of the view that Plaintiff No.1 was born on 6.11.1966 when Defendant No.2 had already sold the suit property in favour of Defendant No.1, it did not proceed further to decide if the said sale was for the benefit of the minors especially when no specific issue was framed by the Trial Court to consider the said aspect of the case. The Trial Court accordingly dismissed the suit of the Plaintiffs holding that the sale deed dated 16.4.1967 was executed by Defendant No.2 before the birth of Plaintiff No.1 and Plaintiff No.2 being a female child did not acquire any interest in the suit schedule house, even when she was born on 23.4.1961. 17. First Appellate Court disagreed with the findings of the Trial Court regarding the date of birth of Plaintiff No.1 and set aside the same. It observed: "In view of this proposition of Jaw relating to the appreciation of Admission register, propounded by their Lordships of Hon'ble Supreme Court, I am of the opinion that Ext. J and J/1 are not conclusive proof of the fact that the Plaintiff No.1 took his birth on dt.15.3.65. On the contrary, there being no cogent and consistent evidence from the side of the Defendant No.1 to prove that the Plaintiff No.1 took his birth on dt.15.3.65 whereas the Ext.2 and Ext. D read with the other documents, as I have referred to in the previous issue goes to prove that the Plaintiff took his birth on dated 16.6.1963. The finding and conclusion of the Trial Court on this issue being extremely erroneous and not based on proper assessment of evidence, the same is set aside and I decide this issue in favour of the Plaintiffs." 18. Thereafter, the Appellate Court went further to examine the question if Plaintiff No.1 could challenge the alienation of the suit property by Defendant No.2 in favour of Defendant No. 1 vide document of the year 1964. It did observe that the said point was not at ail contested by the Respondent nor any positive argument was advanced by the Appellant but chose to proceed further to decide the said question on the basis of the pleadings of the parties contained in the plaint and the written statement respectively. 19. Plaintiffs in their plaint have averred that the suit house is the ancestral property and there was no legal necessity for alienating the said house. Defendant No.1 in his written statement asserted that there was legal necessity for Defendant No.2 to sell the house. 19. Plaintiffs in their plaint have averred that the suit house is the ancestral property and there was no legal necessity for alienating the said house. Defendant No.1 in his written statement asserted that there was legal necessity for Defendant No.2 to sell the house. In the absence of any issue and oral evidence on record, the First Appellate Court based on the averments in the pleadings concluded that Defendant No.2 could not have alienated the interest of Plaintiff No.1 in the suit property in favour of Defendant No.1, and therefore, the transaction vide sale deed No.12 of 64 was a voidable documents at the option of Plaintiff No.1. Hence, the suit was maintainable and since Plaintiff No.1 was not a party to the earlier suit filed by Defendant No.1 against Defendant No.2, the impugned Judgment and decree passed in T.S. No.17 of 70 was not binding on the Plaintiffs and the Plaintiffs were entitled to a decree for declaration, as prayed. 20. Since the sale of the suit property was also challenged by the Plaintiffs on the grounds that alienation of the property was not for the benefit of the minors or for any legal necessity and therefore was bad, which was refuted by Defendant No.1 in the written statement, appropriate issues should have been formulated by the Trial Court for effective disposal of the suit on merits. 21. The Appellate Court after having concluded that the sale took place after the birth of Plaintiff No.1, should not have proceeded further to decide if the sale was for legal necessity or for the benefit of the minor, without framing any additional issues and affording sufficient opportunity to the respective parties to lead their evidences in support of their case. The First Appellate Court, therefore, did not adopt proper legal approach by posing question in para 16 of the Judgment and, thereafter, analyzing the same on the basis of pleadings, without framing appropriate issues and without affording sufficient opportunity to the parties to lead evidence. This has resulted into miscarriage of justice. The Appellate Court should have either, proceeded under Order 41 Rule 25 or 27 r/w Rule 28 & 29 of the Code of Civil Procedure (C.P.C). This has resulted into miscarriage of justice. The Appellate Court should have either, proceeded under Order 41 Rule 25 or 27 r/w Rule 28 & 29 of the Code of Civil Procedure (C.P.C). In other words, the Appellate Court should have framed additional issues and thereafter either remitted the case to the Trial Court to record additional evidence or proceeded further to record evidence of the parties on the additional issues so framed by it, before giving its findings thereon and the reasons there for. 22. Since the First Appellate Court has not followed the principle of law as laid down in Order 41, Rule 25 or 27 r/w Rule 28 & 29, the impugned Judgment being violative of principles of law and procedure, is hereby set aside. 23. The case is remanded back to the First Appellate Court with the directions that it shall frame appropriate additional issues based on the pleadings of the parties and thereafter, grant fair opportunity to the parties to lead their respective evidence, submit their arguments, before giving its findings on the same. The parties are directed to appear before the concerned Appellate Court on 6.7.2011 for further proceedings. The Appellate Court shall complete the proceedings as directed, within six months of the date so fixed by this Court for the appearance of the, parties before it. Registry is directed to remit back the LCR and the First Appellate Court record, along with the certified copy of the Judgment to the First Appellate Court forthwith.