Asim Kumar Ray, J.

Being aggrieved by and dissatisfied with the judgment dated February 9, 1990 and decree signed on February 27, 1990 passed in Title Appeal No. 22 of 1987 by learned Additional District Judge, Purulia confirming the judgment dated December 23, 1986 and decree signed on January 15, 1987 passed in title Suit No. 106 of 1980 by learned Assistant District Judge(Additional ) Purulia, this appeal has been preferred.

Title Suit No. 106 of 1986 was initiated by one Banka Behari Chakraborty of village Gopalnagar,. P.S.- Manbazar, District- Purulia on behalf of self and as representative of the village community of the aforesaid village praying for declaration of Title and recovery of khas possession of a portion of the property in dispute. The C.S. plot No. 970 measuring 4 decimal was originally belonged to one Keshab Bauri. The village community acquired that plot for Gopalnagar Asutosh M.E.(Junior) High School against some consideration money paid to the said owner. The C.S. plot No. 969 measuring one decimal originally belonged to Kalipada Chakraborty and Bamapada Chakraborty , two brothers and that land was also acquired from the said owners in exchange of one decimal land appertaining to Plot No. 547 of Mouza –Gopalnagar of the original plaintiff. Defendant No. 9 and 10 are the sons- cum- heirs of Kalipada Chakraborty and Bamapada Chakraborty respectively. Thereafter Gopalnagar A.T. School was established in 1944 on the said land and it continued there till 1962. The school was shifted to another site as the building standing on the previous site became unfit for occupation. Defendant No.7, as well successor of Keshab Bauri tried to encroach upon the C.S. plot No. 970 but the matter was settled amicably later. On May 17, 1980 the defendant No. 1 to 6 encroached on a portion of the suit property (property mentioned in the schedule-II of the plaint) and made a jupri there beside other construction on the said land. In that backdrop the suit was initiated.

The suit was contested by defendant No. 1 to 6 and defendant No. 9 by filing written statement. They took a plea that the suit was bad for defect of parties , the plaintiff had no locus standi to institute the suit and the managing committee of the school was a necessary party. The defendant Nos. 1 to 6 admitted that the suit land belonged to school but they constructed a gumti and challa on the said land and have been running a shop therein with the permission of the then Secretary of the school managing committee. They have acquired title by adverse possession. Defendant NO. 9 disputed the title of the school in respect of CS Plot No. 969 and claimed that there was no exchange of that plot as alleged by the plaintiff. The title of the said plot of land remained with his predecessors in interest and the school was in illegal possession of the same for the period from 1945 t0 1961 and thereafter he/defendant regained its possession.

The trial Court passed the judgment and decree in favour of the plaintiff and the same was confirmed by the first Appellate Court. In the background this is the second appeal before this Court.

This Court has formulated the substantial questions of law and the same are as follows:

1) Whether the Learned Trial Court’s failure to frame specific legal issues on Order 7 Rule 4 of Civil Procedure Code renders the Judgment of Trial Court bad ab initio.

2) Whether a suit instituted in a representative capacity by a particular plaintiff be allowed to be continued after his/her death by lineal descendants of the original plaintiff without obtaining fresh permission under Order 1 Rule 8 Sub-Rule (2) of Civil Procedure Code and consequently whether the suit abates.

3) Whether in absence of fresh permission (supra) decree passed is non-est in law and hence inexecutable.

Mr. Bidyut Kiran Mukherjee, learned senior advocate appearing on behalf of the appellant/defendant has contented that an issue under Order 7 Rule 4 of the CPC should hav