The main legal point established in the judgment is that the defendants' right to cross-examine witnesses is not taken away even if they have not filed a written statement.

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. 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. 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