JUDGMENT : Heard learned counsel for the appellants. 2. This Second Appeal has been preferred under section 100 of the Code of Civil Procedure against the judgment and decree dated 23.05.2009 in Title Appeal no. 27 of 2006 passed by the District Judge, Serailkela-Kharsawan by which the learned lower appellate court dismissed the appeal. 3. The appellants, who were plaintiffs in the trial court filed Title Suit No. 5 /2003 with a prayer for declaration of plaintiffs’ rights, title and interest over the suit land and confirmation of possession and in the alternative recovery of possession besides costs and any other reliefs. The suit was with respect to R.S. Plot No. 2870 area 31 decimals, corresponding to old plot No. 2278. 4. It is the case of the plaintiff that the said plot besides others plots was acquired by the predecessors-in-interest of the plaintiffs under registered patta of raiyati jote under deed no. 3495 dated 14.06.29 executed by the appointed guardian of minor landlord Shri Satrughan Adityadeo and the predecessors-in--interest of the plaintiffs came in possession thereof as settlees. 5. It is further the case of the plaintiffs that an area of five Bighas, was sold to one Anant Sahu by the predecessors-in--interest of the plaintiffs vide registered deed and the remaining land continued in the possession of the predecessors-in-interest of the plaintiffs and thereafter in possession of their heirs in interest. The old plot no. 2278 was renumbered as R.S. plot No. 2870 and R.S. plot no. 2864. The plot no. 2870 of area 31 decimals (which is the subject matter of the suit), though remained in the possession of the plaintiffs but was recorded in Khata No. 176 in the name of Jagan Majhi. The old plot no. 2279 was recorded in the name of Jagmohan Sahu and others having an area of 19 decimals. 6. The grievance of the plaintiff was that R.S. plot no. 2870 of area 31 decimals having being carved from old plot no. 2278 has wrongly been recorded in the name of Jagan Majhi and others. 7. The defendants appeared in the trial court but consequent upon their failure to file written statement in time, they were debarred from filing written statement. 2870 of area 31 decimals having being carved from old plot no. 2278 has wrongly been recorded in the name of Jagan Majhi and others. 7. The defendants appeared in the trial court but consequent upon their failure to file written statement in time, they were debarred from filing written statement. The defendants cross examined the witnesses of the plaintiffs, though there was no pleading by the defendants, learned trial court below framed seven issues and after taking into consideration the evidence in record, dismissed the suit. 8. Learned first appellate court after taking into consideration the submission of the rival parties, observed that as no pleading was filed by the defendants, so issues could not have been framed in terms of the order XIV of Code of Civil Procedure, hence, framing of issues by learned court below was not legal but the learned court below under misconception framed the issues and gave findings upon the said issues. 9. Further the lower appellate court upon considering the facts of the case and the submissions made at the bar, framed the following point for determination- “Whether the plaintiffs have been able to prove, if plot no. 2870 is carved from old plot no. 2278 ?” The lower appellate court further observed that after taking into consideration the evidence on record that after sale of the land, an area of about 1 bigha 2 katthas 6 dhurs remained with the plaintiffs and in view of the evidence of plaintiffs themselves that in their area 33 decimals is equal to 1 Bigha, thus area remained with the plaintiff was of 37 decimals. Since as per the case of the plaintiffs, plot no. 2867 is of area of 19 decimals as is evident from exhibit 3. Thus by any calculation, there cannot be an area remaining of 31 decimals but only 18 decimals would be remaining. 10. It was further observed by lower appellate court that plaintiff neither filed the C.S. and R.S. map nor examined any survey expert. The C.S. plot no. 2867 is of area of 19 decimals as is evident from exhibit 3. Thus by any calculation, there cannot be an area remaining of 31 decimals but only 18 decimals would be remaining. 10. It was further observed by lower appellate court that plaintiff neither filed the C.S. and R.S. map nor examined any survey expert. The C.S. plot no. 2278 was having an area of 10 dhurs, which is equivalent to less than one decimal but since in survey fraction of decimals is not considered thus it can be said to be one decimal and as the C.S. plot No. 2278 was having an area of one decimal only no plot having an area of 31 decimals could be carved out from the same and by observing thus, the court below held that except framing of issues and giving issue wise finding under misconception, which cannot be assailed but upheld the judgment of the trial court upon coming to a conclusion basing upon its own reasoning as mentioned in the impugned judgment and finding no merit in the appeal, learned appellate court dismissed the appeal. 11. Dr. S. K. Verma the learned counsel for the appellants submits that since the defendants have not filed any written statement, both the courts below have erred in ignoring the fact that the defendants were illegally permitted to cross examine the witnesses of the plaintiffs. It was further submitted that the trial court ought not to have framed the issues in the absence of the pleadings of the defendants and in the absence of the pleadings ought to have pronounced the judgment. Under order XV rule 1 or order VIII rule 10 of the Code of Civil Procedure. Learned counsel for the appellant further submitted that the judgment and decree of the lower Appellate Court is vitiated on account of non-consideration of the important facts and materials on record. 12. So far as the contention of the appellants regarding the defendants being illegally permitted to cross examine the witnesses of the plaintiffs even though the defendants have not filed any written statement is concerned, it is a settled principle of law that even if the defendant has not filed the written statement or his defence is struck off his right to cross-examine the witnesses of the Plaintiff is not taken away. The reason being as the Code of Civil Procedure envisages two consequences of not entering appearance. One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed. In that context, it will not be proper to impose more punishment than those two so explicitly stated by the Code of Civil Procedure. Therefore a defendant not filing the written statement can still appear when the suit is called on for hearing not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiff’s case on evidence that the court will not pass any decree in the plaintiff’s favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the court. Moreover filing of written statement is not the only way of defending a suit. A defendant may in a particular case choose to successfully defend a suit against him by cross-examination of the witnesses of the plaintiff and arguments. 13. The Hon’ble Patna High Court in the case of Siai Sinha Vs. Shivadhari Sinha AIR 1972 Pat 81 also held that when a suit is not placed for ex parte hearing, a defendant can take part in the hearing of the suit even without filing a written statement and cross examine the plaintiff's witnesses, as non-filing of the written statement will not amount to admission of all the facts pleaded in plaint. In that case the suit was not directed to proceed ex parte. The Court observed thus in paragraph -3 : “… … … … … … … … The position of law in such a case is that a defendant, even without filing a written statement, can take part in the hearing of the suit. He may cross-examine the plaintiff's witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written statement. He may cross-examine the plaintiff's witnesses to demolish their version in examination-in-chief. Without written statement, however, he cannot be permitted to cross-examine the witnesses on questions of fact which he himself has not pleaded nor can he be allowed to adduce evidence on questions of fact which have not been pleaded by him by filing any written statement. It should be further made clear that if a defendant files a written statement and does not controvert the allegations in the plaint then tacitly the fact not controverted is said to be admitted, but if he does not file written statement, it cannot be said that he has admitted all the facts pleaded by the plaintiff [see for reference a Bench decision of the Calcutta High Court in J.B. Ross and Co. v. C.R. Scriven, ILR 43 Cal 1001 : (AIR 1917 Cal 269 (2))]. Keeping this position of law clearly in mind, the court below is directed to permit the petitioner to take part in the proceedings in the suit at the time of the hearing.” 14. The Hon’ble Supreme Court of India in the case of Paradise Industrial Corpn. v. Kiln Plastics Products, (1976) 1 SCC 91 , at page 93 in paragraph – 4 where the defence of the defendant of that case was struck off thereby putting the defendant with the similar handicap as a defendant when debarred from filing the written statement, held that even when defence is struck off the defendant is entitled to appear, cross-examine the plaintiff’s witnesses and can submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him. The same was the view of the Hon’ble Supreme Court of India in the case of Babbar Sewing Machine Co. v. Trilok Nath Mahajan, (1978) 4 SCC 188 , at page 195 where in it was observed as follows in paragraph -25: “25. … … … … In Sangram Singh v. Election Tribunal (1955) 2 SCR 1 , it was held that if the court proceeds ex-parte against the defendant under Order IX, Rule 6(a), the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff makes out a prima facie case the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff’s suit. … … … … ” Similar was the view of the Hon’ble Supreme Court of India in the case of Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619 in paragraph - 16 and 18 of which it was held as under : “16. … … … … … … … … … … … But it does not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default. … … … … … … … …We are also of the same view that provisions of this type should be construed strictly and that the disabilities of a person in default should be limited to the minimum extent consistent with the requirements of justice. … … … … … … … …” “18. … … … … … … … …While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff’s case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiff’s witnesses really constitutes a finishing touch which completes the plaintiff’s case. It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff’s witnesses cannot constitute the plaintiff’s evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff’s witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff’s evidence cannot be acted upon. The right of the defence to cross-examine the plaintiff’s witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff’s evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiff’s witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute.”(Emphasis Supplied) Because of the settled principle of law as discussed above, I have no hesitation in holding that there is no force in the submission of the learned counsel for the appellant that the learned court below erred by permitting the defendant to cross examine the witnesses of the plaintiff. In fact the learned court below adopted the correct procedure in permitting the defendant to cross examine the witness of the Plaintiff. 15. So far as the contention of the appellants regarding the trial court ought not to have framed the issues in the absence of the pleadings of the defendants is concerned, as rightly observed by the lower appellate court the learned trial court framed the issues and gave issue wise finding under misconception but for such procedural irregularity which was set right by the lower appellate court in the impugned judgment and decree and as consequent upon the decree of the lower appellate court the same has merged with the decree of the trial court hence the procedural irregularity of the trial court under a misconception which do not go to the root of the matter in dispute is not open to be assailed, in this second appeal. 16. So far as the contention of the appellants regarding passing of judgment under order XV rule 1 of the Code of Civil Procedure is concerned, it will be profitable to go to order XV rule 1 of the Code of Civil Procedure. Chapter XV of the Code of Civil Procedure relates to disposal of a suit at the first hearing. So far as the contention of the appellants regarding passing of judgment under order XV rule 1 of the Code of Civil Procedure is concerned, it will be profitable to go to order XV rule 1 of the Code of Civil Procedure. Chapter XV of the Code of Civil Procedure relates to disposal of a suit at the first hearing. Rule 1 of order XV of the Code of Civil Procedure reads as follows : Parties not at issue : "Where, at the first hearing of the suit, it appears that the parties are not at issue upon any point of fact or law, the Court may, under this rule, at once pronounce judgment." The Hon’ble Supreme Court of India interpreted the words "first hearing of the suit" appearing in order XV rule 1 of the Code of Civil Procedure as under in the case of Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 , as under in paragraph 12 and 13 “ 12. … … … … … … … … Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the "first hearing of the suit" which comes after the framing of the issues and then the suit is posted for trial, i.e. for production of evidence. Such an interpretation emerges from the conjoint reading of the provisions of Order X Rule 1; Order XIV Rule 1(5); and Order XV Rule 1, CPC. The cumulative effect of the above referred provisions of CPC comes to that the "first hearing of the suit" can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of the case, and it is only after filing of the written statement and framing of issues, the hearing of the case commences. The hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause. Hearing, therefore, should be first in point of time after the issues have been framed. 13. The hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause. Hearing, therefore, should be first in point of time after the issues have been framed. 13. The date of "first hearing of a suit" under CPC is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the "first hearing of the suit" prior to determining the points in controversy between the parties i.e. framing of issues does not arise. The words the "first day of hearing" does not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. [Vide: Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816 ; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha (Regd.) Dal Bazar, AIR 1987 SC 197 ; Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525 ; and M/s Mangat Singh Trilochan Singh thr. Mangat Singh (dead) by Lrs. & Ors. v. Satpal, AIR 2003 SC 4300 ]” (Emphasis Supplied) It will be relevant at this stage to refer to the decision of the Hon’ble Bombay High Court in the case of Prashant Vagaskar and others v. Municipal Corporation of Greater Bombay and others AIR 2002 Bom 120 , where the words “at issue” appearing in order XV rule 1 of the Code of Civil Procedure and the scope of order XV rule 1 Code of Civil Procedure has been dealt with at length in paragraph 16 and 17 as under : “16. … … … … … … … …In order to understand the meaning of the word 'at issue', it is necessary to turn to the scheme of the provisions of Order 14 read with Order 15 of the C. P. C. Issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to constitute his defence. The issues are of two kinds :- (a) issues of fact, and (b) issues of law. (Order 14, Rule 1 of C. P. C.). Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Court may frame issues from (a) allegations made by the parties, their agent or pleaders, (b) allegations in pleadings or in answer to interrogation, (c) contents of documents produced by either parties (See Order 14, Rule 3, C. P. C.) 17. When the pleadings are not exhaustive, the Court is at liberty to examine the parties so as to find out provisions of law and facts at which they are at variance. The function of the Court lies in ascertaining the real dispute between the parties from the pleadings i.e. plaint and written statement or by examining the parties and/or by hearing the counsel with respect to the proposition on which there is a dispute. Once the issues are determined, framed and settled, the area of dispute between the parties stands demarcated so as to enable the parties to lead evidence within the demarcated field. This demarcated field or area of dispute is necessary to find out whether parties are at issue or not. If there is no contention between the parties, no issues arise and therefore, the Court is not called upon to go into any dispute at all. Then it is said that parties are not at issue.” (Emphasis Supplied) Now coming to the facts of this case after carefully going through the records it is found that there is no material in the record to suggest that at any point of time there was any occasion for the court to come to conclusion that the parties are not at issue upon any point of fact or law. Hence I have no hesitation in holding that in the facts and circumstance of this case there was no occasion for the court to pass the judgment under order XV rule 1 of the Code of Civil Procedure. Therefore this contention of the appellants also carry no weight and the courts below were right in not passing any judgment under order XV rule 1 of the Code of Civil Procedure. 17. Therefore this contention of the appellants also carry no weight and the courts below were right in not passing any judgment under order XV rule 1 of the Code of Civil Procedure. 17. So far as the contention of the appellants that the courts below ought to have pronounced the judgment under order VIII rule 10 of the Code of Civil Procedure as no written statement was filed by the defendants is concerned, it is a settled principle of law that order VIII rule 10 of the Code of Civil Procedure are only permissive in nature and not mandatory as has been held by the Hon’ble Supreme Court of India in the case of Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619 , in paragraph 23 at page 642 : “23. An objection to our above conclusion has been raised on the basis of the provisions of Order 8 of the Code of Civil Procedure. Rules 1, 5 and 10 of this order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the court. Under Rule 5(2), where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any such fact to be proved. Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, the court “shall pronounce judgment against him or make such order in relation to the suit as it thinks fit”. It will be seen that these rules are only permissive in nature. They enable the court in an apropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. It will be seen that these rules are only permissive in nature. They enable the court in an apropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the court “shall” pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed.” (Emphasis Supplied) Similarly in the case of Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 , it was held by the Hon’ble Supreme Court of India in paragraph-29 at page 409 as follows: “29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. It is a matter of the court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.” (Emphasis Supplied) The same view was expressed by the Hon’ble Supreme Court of India in the case of Kailash v. Nanhku, (2005) 4 SCC 480 , in paragraph – 32 at page 496 by observing as under : “32. Our attention has also been invited to a few other provisions such as Rules 9 and 10 of Order 8. In spite of the time-limit appointed by Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement. Under Rule 10, the court need not necessarily pronounce judgment against the defendant who failed to file written statement as required by Rule 1 or Rule 9. The court may still make such other order in relation to the suit as it thinks fit.” (Emphasis Supplied) After going through the records I found that the plaint contained disputed question of facts. Though essentially the entry in revenue records was disputed yet neither the C.S. map nor the R.S. map was produced. So in view of the settled principle of law as discussed above no fault can be found with the learned courts below in not pronouncing the judgment under order VIII rule 10 of the Code of Civil Procedure, merely because no written statement was filed by the defendants. So this contention of the appellants is devoid of any merit. 18. So in view of the settled principle of law as discussed above no fault can be found with the learned courts below in not pronouncing the judgment under order VIII rule 10 of the Code of Civil Procedure, merely because no written statement was filed by the defendants. So this contention of the appellants is devoid of any merit. 18. After considering the material on record including the impugned judgments and decrees of the Courts below, I find that learned lower Appellate court has considered all the relevant facts, evidences and materials on record in correct perspective and has arrived at the finding of fact on the basis thereof that by any calculation, there cannot be an area remaining of 31 decimals but only 18 decimals would be remaining. Further plaintiff neither filed the C.S. and R.S. map nor examined any survey expert. The C.S. plot no. 2278 is having an area of 10 dhurs, which is equivalent to less than one decimal but since in survey fraction of decimals is not considered thus it can be said to be one decimal and as the C.S. plot No. 2278 was having an area of one decimal only no plot having an area of 31 decimals could be carved out from the same. After going through the judgments of the court below, I do not find any illegality in the concurrent findings of the courts below. There is no substantial question of law involved in this Second Appeal. Accordingly, this Second Appeal being without any merit is dismissed and the judgment of the court below is affirmed. No costs.