1. This second appeal is at the instance of defendant-2nd party against the judgment of affirmance, the trial Court having decreed the plaintiffs suit and the lower appellate Court having dismissed the appeal.

2. Since I propose to remand this case to the lower appellate Court, the facts need not be stated in detail. It would suffice to say that the plaintiffs-respondents instituted the instant suit for declaration of title and recovery of possession as also for mesne profits with respect to certain lands described in the Schedule to the plaint. According to the plaintiffs, the suit property was sold at auction in execution of rent decree and purchased by the decree-holder ex-in-termediary, who obtained delivery of possession thereon on 20-3-1943. The ex-intermediary, namely, defendant 5th party, is said to have sold the suit land to the plaintiffs under a registered sale deed dated 11-8-1959 and the plaintiffs claimed title and possession by virtue of that sale deed. There was a proceeding under Sec.144 Cr. P. C., in respect of the suit land, which was converted into one under Sec.145 Cr. P. C., and which was decided against the plaintiffs; and the defendants 1st and 2nd party are said to have dispossessed the plaintiffs from the suit land on 19-7-1963 leading the plaintiffs to file the suit,

3. The defendant 1st party and the plaintiffs compromised the matter admitting the claim of the plaintiffs. The suit was contested by the defendant 2nd party, who claimed to be purchaser of six dhoors of land, out of the suit property by virtue of sale. The auction sale, the sale certificate and delivery of possession in consequence thereof, were all described as paper transaction and it was asserted that neither the ex-intermediary, defendant 5th party, nor the plaintiffs came in possession of the suit land.

4. Amongst the issues framed in the trial Court, some of them are as follows--

(1) Whether the suit was barred by limitation?

(2) Whether the sale deed alleged to have been executed in favour of the plaintiffs as also defendant 2nd party was genuine?

(3) Whether the story of possession and dispossession set up by the plaintiffs was correct? The suit was a hotly contested one. The parties filed a good number of documents. In addition to these, as many as 15 witnesses were examined on behalf of the plaintiffs and 14 on behalf of the defendant 2nd party. The trial Court held that the story of possession and dispossession, as set up by the plaintiffs, was correct and that the defendant 2nd party had not acquired title to the suit land by adverse possession. On these and other findings, the plaintiffs suit was decreed including their claim for mesne profits. Defendant 2nd party carried the matter in appeal before the first appellate Court. The lower appellate Court dismissed the appeal confirming the judgment and decree of the trial Court. Although the lower appellate Court discussed the documentary evidence adduced by the parties, it is undisputed that it did not at all discuss the oral testimony of any of the witnesses either for the plaintiffs or the defendant.

5. The sole substantial question of law that was framed for decision in this appeal at the time of its admission may be found in Order No. 12 dated 14-5-1979 which runs as follows:-

"Whether the decision of the lower appellate Court given without considering the oral evidence led by the appellant is in accordance with law?"

6. Sri P.S.Sinha, learned counsel for the appellant, vehemently submitted that the judgment of the lower appellate Court stood vitiated for non-consideration of the oral evidence adduced by the parties and as such the judgment and decree of the lower appellate Court was liable to be set aside and justice necessitated a remand of the case. Shri R.S.Chatterjee, learned counsel for the respondents, relying on a decision of this Court reported in AIR 1973 Pat 386 (Shiva Narayan Sah V/s. Baidya Nath Pd. Tiwary) faintly argued that as the lower appellate C