S.N. Modi, J.
1. This is a petition in revision directed against the order of the District Judge, Bikaner, dated August 1, 1974 where by he recast issue No. 11 and sent the case back to the trial court for recording evidence of the parties on the recast issue No. 11 and give its finding thereon within three months.
2. The suit, out of which this revision petition arises, was filed by the petitioner Smt. Jethi for poraession of a house. She alleged that she was the owner of one-ninth share in the house. She claimed the possession of remaining eighth ninth share by way of pre-emption The suit was contested by Inder Chand who had purchased the house from Shankerlal son of Gangadas. According to the contesting defendant, the house exclusively belonged to Gangadas and he transferred it by 'tamliknama' or deed of settlement dated January 18, 1955. This 'tamliknama' was got registered on January 20, 1955,
3. On pleadings of the parties, several issues were framed. Issue No. 11 ran as follows,:
D;k xaxknkl us rkjh[k 20&1&55 dks viuh lEifRr Deed of settlement }kjk ns nh A,slk gS rks bldk nkos ij D;k vlj gS
4. The trial court, after evidence, held that 'tamliknama' was not quit proved inasmuch as none of the two attesting witnesses was produced in evidence as required under Section 68 of the Evidence Act. The trial court, on consideration of the evidence, decreed the suit.
5. Dissatisfied with the said judgment and decree, Indra Chand preferred an appeal before the District Judge. Bikaner. The learned District Judge, after hearing the parties, recast issue No. 11 as under and remanded the case under Order 41 Rule 25 C.P.C. to the trial court as aforesaid:
Whether Shri Gangadass executed 'tamliknama' of his property on 18 1 55 and got it registered on 20.1.55 in favour of Shankerlal and whether the same was duly attested by Chandratan and Meghraj Joshi
6. I have heard the learned Counsel for the parties and gone through the record of the case.
7. During the tendency of the appeal before the learned District Judge, an application was presented by Indra Chand for framing a specific issue regarding attestation by the two attesting witnesses in place of issue No. 11. It was alleged in the application that Indra Chand was misled on account of vagueness of the issue and he, therefore, could not produce evidence regarding attestation of 'tamliknama'. The learned District Judge found that in case specific issue regarding attestation had been framed by the trial court, Indra Chand would hive led some evidence as to who attested the document and whether the attesting witnesses are alive or not. The learned District Judge also took in of consideration the fact that the document was a registered one. Considering the nature of the document, he thought it proper in the interest of justice to give an opportunity to the parties to produce further evidence regarding proof of 'tamliknama' after refraining issue No. 11.
8. The learned Counsel for the petitioner has vehemently challenged the correctness of the said order It is contended that there are no pleadings of the parties that 'tamliknama' was attested by Chandratan and Meghraj Joshi or that both of them had died According to the learned Counsel, a new point, not based on the case pleaded or set-up by the parties in the lower court, cannot be the subject-matter of an issue. He therefore contends that the order remitting the issue is wholly illegal and liable to be quashed. Having regard to the circumstances of the case, the contention, in my opinion, is without substance. Ordinarily, a new point, not based on the pleadings of the parties, cannot be a subject-matter of the issue, but the bar is not an absolute one and the appellate court, in a proper case, remand an issue under Order 41 Rule 25 C.P.C. even on a point not arising out of the pleadings of the parties. In the present case, the 'tamliknama' is a registered document and a bare look at it would reveal that it was attested by two persons Chandratan and Meghraj Joshi. In the trial court, the petitioner at no time, disputed the attestation of the document by these two persons. It was only at the time of arguments that a plea was raised that since none of the two attested witnesses has been produced, the 'tamliknama' was inadmissible in evidence. It further appears from the application filed on behalf of Indra Chand in chef lower appellate court that both these attesting witnesses Chandratan and Meghraj had died much before the suit was instituted by the plaintiff-petitioner. In view of this exceptional circumstance, I do not feel inclined to hold that the learned District Judge exceeded his jurisdiction in recasting the issue and remanding the case under Order 41 Rule 25 C. P.C. However, I feel that the language of the issue reframed by the appellate court is still not very clear. To my mind, to be more specific, it will be proper to keep intact issue No. 11 as it stood earlier and in addition thereto frame two more issues as under:
(1) Whether 'tamliknama' dated January 18, 1955 was attested by Chandratan and Meghraj Joshi?
(2) Whether Chandratan and Meghraj Joshi had expired before institution of the suit?
9. With the above modification, the revision petition is dismissed. The evidence, if already recorded on the issue No. 11 as framed by the lower appellate court, shall be read in evidence and it will be open to the parties to-adduce more evidence, if they choose to do so on the reframed issues by this, court
10. There will, however, be no order as to costs.