Himachal Pradesh High Court
Jai Mal And Anr vs Om Prakash And Anr on 31 July, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 355 of 2005
Date of Decision: 31.7.2017.
______________________________ ________________________________________
.
[
Jai Mal and Anr. .........Appellants.
Versus
Om Prakash and Anr. ......Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
For the appellants: Mr. K.S. Kanwar, Advocate.
For the respondents: Ms. Jyotsna Rewal Dua, Senior Advocate, with Ms.
Charu Bhatnagar, Advocate, for respondent No.1.
____________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant regular second appeal filed under Section 100 of the CPC, is directed against the judgment and decree dated 2.5.2005, passed by the learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 56- CA/13 of 2004, reversing the judgment and decree dated 30.9.2004, passed by the learned Civil Judge (Jr. Div), Court No.2, Paonta Sahib, District Sirmaur, H.P. in Civil Suit No. 88/1 of 2002, whereby suit having been filed by the respondent (hereinafter referred to as the plaintiff) for possession came to be dismissed.
2. Briefly stated facts as emerge from the record are that the plaintiff preferred suit for possession of land comprised in khasra No.35/2 (part of khasra No.35), measuring 0-3 bigha situated in mauza Ghuttanpur, Tehsil Paonta Sahib, District Sirmaur, H.P. (in short the suit land). Plaintiff claiming himself to be owner in possession of the khasra No. 35 alleged that the defendants-appellants Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -2-started interfering in khasra No. 35 in the month of February, 1997. Plaintiff further averred that defendants by way of their illegal act, occupied some portion of the suit land, which came out to be three biswas on demarcation got .
conducted by the plaintiff. Plaintiff further stated that since defendants despite request, failed to handover the possession of the suit land and as such, he was compelled to file instant suit.
3. Defendants by way of written statement refuted the aforesaid claim of the plaintiff and stated that demarcation was not conducted in their presence. Defendants further stated before the Court below that no demarcation took place and alleged demarcation report is a fraudulent document got prepared by the plaintiff in connivance with field kanungo.
Defendants while terming aforesaid demarcation report submitted by the field kanungo to be null and void, further stated that order of Assistant Collector in pursuance to demarcation report is not binding upon them. The defendants claimed themselves to be owner of khasra No. 71 and stated that land of plaintiff and defendants was separated by an old 'doll' existing since the time of consolidation proceedings, which took place in the year, 1957-58. Apart from above, the defendants specifically stated in the written statement that if some part of khasra No. 35 is found to be in possession of the defendants then they have perfected their title by way of adverse possession since they were in possession since 1957-58, continuously, openly and peacefully as well as hostile to the knowledge of the plaintiff.
4. Plaintiff by way of replication refuted all claims of the defendants and reasserted and reaffirmed the averments contained in the plaint. Learned ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -3- trial court on the basis of pleadings adduced on record by the respective parties framed following issues:
"1. Whether the plaintiff is entitled for the possession of suit land as .
alleged? OPP.
2. Whether the suit is not maintainable as alleged? OPD.
3. If issue No. 1 is not proved in affirmative, whether the defendants have become the owner by way of adverse possession as alleged? OPD.
4. Relief."
Subsequently, vide judgment dated 30.9.2004, learned trial Court dismissed the aforesaid suit having been filed by the plaintiff.
5. Being aggrieved and dis-satisfied with the dismissal of the suit, the plaintiff preferred an appeal under Section 96 of the CPC, before the learned District Judge, Sirmaur District at Nahan, H.P. Learned District Judge, accepted the appeal having been preferred by the plaintiff, as a result of which, suit for possession of the suit land, came to be decreed. In the aforesaid background, appellants-defendants approached this Court by way of instant proceedings, praying therein for restoration of judgment and decree dated 30.9.2004, passed by the learned trial Court after setting-aside the impugned judgment and decree dated 2.5.2005, passed by the learned District Judge.
6. This Court vide order dated 19.7.2005, admitted the instant appeal on following substantial questions of law:-
"1. Whether demarcation of Khasra No.35 conducted by Field Kanungo on 5.1.1999 carried out in accordance with instructions and law applicable for conducting demarcation without notice and in absence of defendants and as such demarcation report Ext.PW-1/A, Tatima Ext.PW-2/B and order dated 4.2.1999 Ext.P-1 of Assistant Collector are inadmissible in evidence?
2. Whether alternative plea of adverse possession pleaded by defendants which is subject to identification of the suit land has been misconstrued, misinterpreted by the learned lower Appellate Court for identification of the suit land and decreeing the suit"::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -4-
7. Before this Court could advert to the records of the case for exploring answer to the aforesaid substantial questions of law, Mr. Karan Singh Kanwar, Advocate, representing the appellants, invited attention of this court to .
the grounds of appeal filed before the learned first appellate Court, laying therein challenge to judgment and decree passed by the learned trial Court, to demonstrate that no finding was returned by the learned first appellate Court qua the validity, if any, of report of demarcation submitted by the field kanungo. Learned counsel also invited attention of this Court to the judgment and decree passed by the learned trial Court, to demonstrate that demarcation report Ext.PW2/A placed on record by the plaintiff, was rejected outrightly by the court below. Learned counsel while referring to the judgment passed by the learned first appellate court contended that there is no reference/discussion, if any, with respect to the finding returned by the learned trial Court qua the validity of demarcation report Ext.PW2/A submitted by the field kanungo. It was incumbent upon the learned first appellate Court being last fact finding Court, to address itself to all the issues and decide the case by giving reasons in support of such findings. Learned counsel further contended that since learned first appellate Court failed to return specific finding qua the issue of validity of demarcation report, matter needs to be remanded back to the court below for fresh adjudication.
8. Ms. Jyotsna Rewal Dua, Senior Advocate, while refuting aforesaid submissions having been made by the learned counsel representing the appellants-defendant stated that there was no requirement as such for learned first appellate Court to return specific finding qua the issue of demarcation ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -5- report in the peculiar facts and circumstances of the case. Ms. Dua further contended that since defendants acknowledged the plaintiff to be owner of the suit land by raising plea of adverse possession, there was no requirement, if .
any, for the court below to refer to demarcation report relied upon by the plaintiff while adjudicating the dispute inter-se the parties. Learned Senior Advocate further contended that since defendants failed to prove their plea of adverse possession by leading cogent and convincing evidence, learned first appellate Court rightly held the plaintiff entitled for possession of the suit land being its true owner.
9. After having gone through the impugned judgment/decree passed by the learned first appellate Court, this Court finds considerable force in the arguments having been made by Mr. Karan Singh Kanwar, Advocate that there is no discussion at all in the judgment passed by the learned first appellate Court qua the finding returned by the learned trial Court on the issue of demarcation report Ext.PW2/A submitted by the plaintiff in support of his claim.
Perusal of impugned judgment passed by the learned first appellate Court clearly suggests that court below proceeded to decide the appeal without taking note of specific grounds taken in the appeal as well as findings returned by the learned trial Court. Learned trial Court while dismissing the suit of the plaintiff specifically held demarcation report (Ext. PW2/A) to be null and void and as such, it was incumbent upon the first appellate Court to deal with aforesaid finding while reversing the judgment passed by the learned trial Court.
10. It is well settled by now that first appeal is a valuable right of parties and parties have a right to be heard both on the question of law and ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -6- facts and learned first appellate Court is required to address itself to all the issues and decide the case by giving reasons in support of such findings.
Similarly, there cannot be any dispute that it is always open for the learned first .
appellate Court to take different view on question of facts after adverting to the reasons given by the learned trial Court in arriving at findings in question. But learned first appellate Court being last court of facts needs to address all the questions involved in the case. It is also well settled whenever court intends to reverse the findings of the learned trial Court, it is expected to record findings in clear terms, specifically stating therein that in what manner reasoning of trial Court is erroneous. As has been observed above, first appeal is a valuable right of parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law and as such, judgment of learned first Appellate Court must reflect its conscious application of mind and must record findings supported by reasons on all the issues arrived from pleadings of the parties.
11. In this regard, reliance is placed upon judgment of Hon'ble Apex Court in Laliteshwar Prasad Singh v. S.P. Srivastava reported in (2017) 2 SCC 415, wherein Hon'ble Apex Court has held as follows:
"13. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391, it was held as under:-
"12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -7- "15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The .
judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756, wherein it was reiterated that sitting as a r court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
14. Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2)
15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -8-(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and .
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable r right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP -9- reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court are erroneous."
.
12. In the case at hand, as has been noticed above, learned first appellate Court while accepting the appeal of plaintiff failed to return findings, if any, qua the validity of demarcation report submitted by the field kanungo.
Though argument having been advanced by Ms. Jyotsna Rewal Dua, Senior Advocate, that in view of the specific finding returned by the learned first appellate Court qua the plea of adverse possession having been raised on behalf of the defendant, there was no requirement to deal with issue of validity of demarcation report, appears to be attractive but same cannot be accepted solely for the reason that learned first appellate Court while decreeing the suit of the plaintiff has specifically held that the plaintiff would be entitled for possession of the suit land comprised in khasra No. 35/2, measuring 3 biswas, as specifically shown in demarcation report Ext.PW2/A and tatima Ext.PW2/B. Once aforesaid demarcation report was held to be not valid by the learned trial Court, it is not understood how learned first appellate Court could hold plaintiff entitled for possession of the suit land in terms of the demarcation report Ext.PW2/A and tatima Ext.PW2/B, especially, when it had not returned findings, if any, qua the issue of validity of aforesaid report.
13. True it is that the learned first appellate Court was well within its rights to decree the suit of the plaintiff after appreciating the evidence adduced on record by the respective parties, but definitely, plaintiff could not be held entitled for possession of the suit land as described in demarcation ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP
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report Ext.PW2/A. Had learned first appellate Court dealt with issue of demarcation report and returned its own findings substituting the findings of the learned trial Court, arguments having been made by Ms. Dua could have been .
accepted by this Court. Perusal of impugned judgment passed by the learned first appellate Court nowhere suggests that finding as returned by the learned trial Court qua the issue of validity of demarcation report Ext.PW2/a was set-
aside by the learned first appellate Court that too by assigning reasons.
14. Needless to say, if the learned first appellate Court agrees with the findings of the learned trial Court, it need not restate effect of evidence or reiterate reasons given by the learned trial Court; expression of general agreement with reasons given by the learned trial Court would ordinarily suffice. But while disagreeing with the judgment passed by the learned trial court, it is incumbent upon the learned first appellate Court to take into consideration all the issues raised before it by the parties.
15. Unfortunately in the instant case, this Court after having gone through the pleadings vis-à-vis impugned judgment passed by the learned first appellate Court, sees substantial force in the arguments having been made by the learned counsel for the appellant that the learned first appellate Court failed to specifically deal with issue of validity of demarcation report while reversing the judgment passed by the learned trial Court.
16. In this regard, reliance is placed upon judgment of Hon'ble Apex Court in Shasidhar and others versus Ashwini Uma Mathad and another, (2015) 11 SCC 269, wherein it has been held as under:
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"10. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
.
11. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter r glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court.
3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation....."
(Emphasis supplied)
12. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code. We consider it apposite to refer to some of the decisions.
"16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as under: ".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP
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issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons .
for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............"
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
14. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p.244) stated as under:
"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first r appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
15. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court (at pp. 303-04) observed as follows:
"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
16. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;::: Downloaded on - 05/08/2017 23:56:21 :::HCHP
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(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. r (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
17. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, 2014(12) Scale 171.
18. Applying the aforesaid principle to the facts of the case, we find that the High Court while deciding the first appeal failed to keep the aforesaid principle in consideration and rendered the impugned decision. Indeed, it is clear by mere reading of the impugned order quoted below:
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"1. The appellants are defendants in the suit. The plaintiffs are the respondents. The respondents are the children of 1st appellant born in the wedlock between 1st appellant and his divorced wife Smt. Uma Mathad. It is admitted fact that the 1st appellant has married the 2nd .
respondent after the divorce and in the wedlock he has two children and they are appellant Nos.3 and 4. The suit properties at item Nos.1 and 4 are admitted to be the ancestral properties. Item Nos.2 and 3 are the properties belonging to the mother of the 1st appellant and after her demise the said properties are bequeathed to 1st appellant. Therefore, the said properties acquired the status of self-acquired properties.
2. The respondents filed a suit for partition. The parties are governed by Bombay School of Hindu Law. In view of the provisions of Hindu Succession Amendment Act of 2005, the respondent Nos. 1 and 2 are entitled to a share as co-parceners in the ancestral properties. The wife who is the second appellant also would be entitled to a share in the partition. In that view, the appellant Nos. 1 and 2 and r respondent Nos.1 and 2 will have 1/4th share each in item Nos.1 and 4 of the suit properties.
3. The learned counsel for the appellants submitted that the appellants 2 to 4 would not claim any independent share in item Nos.1 and 4 of the suit properties, but they would take share in the 1/4th share allotted to their father.
4. In view of the said submissions, the appellant Nos.1 and 2 and respondent Nos.1 and 2 would be entitled to 1/4th share in item Nos.1 and 4 of the suit properties.
5. Accordingly, a preliminary decree to be drawn and the appeal and cross objections are disposed of in the terms indicated above."
19. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellants and/or respondents nor it took note of the grounds taken by the appellants in grounds of appeal nor took note of cross objections filed by plaintiffs under Order XLI Rule 22 of the Code and nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case laws applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial Court can be sustained or not and if so, how, and if not, why?
16. In Laliteshwar Prasad's case (supra), the Hon'ble Court has specifically held that whenever the learned first appellate Court reverses the ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP
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finding of the learned trial court, it must record the finding in clear terms explaining how the reasonings of the trial court are erroneous. But unfortunately, in the instant case, what to talk of findings, if any, having been .
returned by the learned first appellate Court, record nowhere suggests that issue with regard to validity of demarcation report was considered by the learned first appellate Court while decreeing the suit of plaintiff. Leaving everything aside, as has been observed above, there was no occasion for the learned first appellate Court to hold plaintiff entitled to possession of the suit land comprising in khasra No. 35/2 measuring 3 biswas as shown in demarcation report Ext.PW2/A and tatima Ext.PW2/B without reversing findings returned by the learned trial court on the issue of demarcation report that too by assigning specific reasons.
17. Consequently in view of the detailed discussion made herein above as well as law referred above, this court is of the view that the learned first appellate Court has failed to discharge its obligation being court of first appeal and as such, matter is required to be remanded back. Accordingly, without going to the merits of the claims of the both the parties impugned judgment and decree, passed by the learned first appellate Court are set-aside and matter is remanded back to the learned first appellate Court with the direction to decide the same afresh in accordance with law. However, it is made clear that observation, if any, made by this Court while passing instant order/judgment may not be construed as opinion of this Court, especially, qua the issues involved in the present case, rather first appellate Court may proceed to decide the appeal afresh without being influenced by any of the observation ::: Downloaded on - 05/08/2017 23:56:21 :::HCHP
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made in this judgment. It also emerge from the record that plaintiff had filed an application under Order 26 Rule 9 CPC, before learned first appellate Court for appointing Local Commissioner, but same was rejected by the court below.
.
Court below while deciding the matter afresh may consider aforesaid application preferred by the plaintiff so that dispute, if any, with regard to the boundary inter-se parties, is settled for all times to come. Parties through counsel are directed to remain present before the learned first appellate Court on 24.8.2017. Since, parties are litigating in the Court since 2002, this Court hopes and trust that learned first appellate Court shall decide matter expeditiously, preferably within a period of two months from the date of passing of this judgment. Registry to send copy of instant order alongwith records of the case forthwith to the learned first appellate court, enabling it to do the needful within the stipulated time. Interim direction also stands vacated. The appeal is disposed of accordingly 31st July, 2017 (Sandeep Sharma), manjit Judge.
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