HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 95 OF 2003 Ranjeet ………Appellant/Defendant. Versus Shri Prem Singh ………………Respondent/Plaintiff. Dated: 25.4.2008 Hon’ble Rajesh Tandon, J. Heard Sri Arvind Vashisth, counsel for the appellant and none for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 8.8.2003 passed by the Addional District Judge / F.T.C. V Dehradun in Civil Appeal No. 9 of 1999 Sri Ranjeet Vs. Sri Prem Singh arising out of the judgment and decree dated 9.2.1999 passed by the IInd Additional Civil Judge (S.D.), Dehradun in O.S. No. 103 of 1991 Sri Prem Singh Vs. Sri Singu and another. 3. Following substantial question of law is framed under Section 103 of the Code of Civil Procedure in the present Second Appeal: “Whether the appellate Court should have gone on the merits of the facts as well as point of law being court of first appellate jurisdiction?” 2 4. Briefly stated, a suit was filed by the plaintiff / respondent being Original Suit No. 103 of 1991 Sri Prem Singh Vs. Sri Singu and another for permanent injunction restraining the defendants from making any interference in the peaceful possession of the plaintiff and from evicting the plaintiff from the property in dispute. 5. According to the case of the plaintiff, he is the Bhumidhar in possession of land Khasra No. 243 area 0.146 acre situate at Nakronda, Pargana Parwadoon, District Dehradun. Defendant nos. 1 and 2 have no concern with the land in dispute. On 25.3.1991, Sri Singu and defendant no. 2 came on the plot in question and threatened to take possession of the plot in dispute forcibly. The plaintiff some how stopped Sri Sing and defendant no. 2 from doing so, but they threatened the plaintiff for dire consequences. 6. During the pendency of the suit, defendant no. 1 Singu died on 8.8.1991 and he left no heir behind him. The defendant no. 2 is still threatening. 7. The defendant no. 2 has contested the averments mentioned in the plaint by filing a written statement. In the written statement, the averments made in the plaint have been denied. It has also been stated that the suit is not maintainable. 8. On the pleadings of the parties, the trial Court has framed the following issues: “1- D;k oknh oknxzLr laifRr @ Hkwfe dk Hkwfe/kj Lokeh o v/;klh gS\ 2- D;k fnukad 25&3&91 dks oknh dks izfroknh us fookfnr laifRr ij dCtk djus dh /kedh nh\ 3 3- D;k bl U;k;ky; dks okn dh lquokbZ dk vf/kdkj ugha gS\ 4- vuqrks"kAÞ 9. Towards the documentary evidence, the plaintiff has filed per list 8C1 copy of the Khatauni Paper No. 9C1, copy of the Khasra Paper no. 9C1/2, per list 21 C1 original Bhumidhari SanadPaper No. 22 A 1, Khatauni of Fasli year 1395-14 Paper No. 23 C –1, copy of the Khasra Paper No. 24 C-1, per List 34 C –1 original receipt of Irrigation House Paper No. 35 Ka-1, per list 54 C-1 original paper of Irrigation Paper No. 58A-1. The plaintiff has filed affidavits of his own and one Ramesh Chand. 10. Towards the documentary evidence, the defendant has filed per list 17C-1 certified copy of the Voter List Paper No. 18 C1, eight Photostat copies of the Irrigation Receipts and photographs. 11. While deciding the issue no. 1 as to whether the plaintiff is bhumidhar owner in possession of the property in dispute, the trial Court has relied upon the affidavit of the plaintiff, where the averments contained in the plaint have been supported. The defendant has not filed any evidence against the said proof. Since, the defendant has not filed any evidence against the said proof, the trial Court has decided this issue in favour of the plaintiff and against the defendant no.2 ex parte. 12. While deciding the issue no. 2 as to whether on 25.3.1991, the defendants threatened the plaintiff to occupy the property in dispute, since the defendant has not filed any document or proof showing that he did not threaten the plaintiff, the trial Court has decided this issue in favour of the plaintiff and against the defendant no.2. 4 13. While deciding the issue no. 3 as to whether this Court has no jurisdiction to hear the suit, the trial Court has decided this issue in favour of the plaintiff. 14. While deciding the issue no. 4 with regard to relief, the trial Court has recorded a finding that the plaintiff has succeeded in proving his case and the suit of the plaintiff is liable to be decreed ex parte. 15. The trial Court has decreed the suit of the plaintiff on 9.2.1999. 16. Aggrieved by the aforesaid judgment and decree, the defendant has preferred Appeal being Civil Appeal No. 9 of 1999 Sri Ranjeet Vs. Sri Prem Singh. The appellate Court has also affirmed the findings recorded by the trial Court and has dismissed the appeal of the defendant on 8.8.2003. 17. Counsel for the appellant Sri Arvind Vashisth has submitted that the appeal being preferred under Section 96 of the Code of Civil Procedure, it was incumbent upon the appellate Court to decide the same on merits instead of dismissing the same only on the ground that he did not appear before the trial Court. 18. In H.K.N. Swami Vs. Irshad Basith (2005) 10 SCC 243, the Apex Court has observed as under: “3. The first appeal has to be decided on facts as well s on law. In the first appeal parties have the right to be heard both on questions of law ass also on facts and the first appellate court is required to address itself to all issues and decide the 5 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. The order of the High Court is cryptic and the same is without assigning any reason.” 19. Relying upon H.K.N. Swami Vs. Irshad Basith (2005) 10 SCC 243 in Chinthamani Ammal Vs. Nandgopal Gounder and another (2007) 4 SCC 163, the Apex Court has observed as under: “22. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court opined that the appellate court is required to address all the issues and determine the appeal upon assignment of cogent reasons.” 20. As will appear from the aforesaid, the Apex Court has observed that the appellate Court being a court of fact has to look into the facts as well as legal issues of the case. 21. In view of the aforesaid, the matter is remanded to the appellate Court for deciding the same afresh on merits within a period of four months from the date of receipt of the certified copy of this order. Both the parties shall be at liberty to adduce the evidence, if any. 22. Consequently, Appeal is allowed. No order as to costs. (Rajesh Tandon, J.) 25.4.2008 Rathour