1 sa 527.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 527 OF 2010 Kisan S/o Ganpat Kasar, Age : 85 Years, Occu. : Agril, R/o Dhandarphal, Tq. Sangamner, Dist. Ahmednagar, Through Special Power of Attorney, Bhamabai Kisan Kasar .. Appellant Versus 1. Rajaram Ganpat Kasar (Dead) 1-A Sitabai Rajaram Kasar (Dead) 1-B Rameshwar Rajaram Kasar, Age : Major, Occu. : Agril. & Service, R/o Manik Bag, Pharlas Line, Indore City, Madhya Pradesh. 2. Smt. Prabhabai Madhav Kasar, Age : 80 Years, Occu. : Agri. 3. Sopan Madhav Kasar, Age : 40 Years, Occu. : Agril. 4. Dashrath Madhav Kasar, Age : 40 Years, Occu. : Agril., 5. Shantabai Kashinath Arote (Dead) 2 sa 527.10 5-A Manohar Kashinath Arote, Age : Major, Occu. : Agril., R/o Sundarbag in front of Hanuman Mandir, Ghatkopar (West) Nariseva Sadan Road, Mumbai. 5-B Shalabai Shirish Jadhav, Age : Major, R/o Shivaji Nagar, Lane No. 6, Tq. Sangamner, Dist. Ahmednagar. 5-C Meerabai Bhaskar Shinde, Age : Major, R/o Akole Kumbharala, Tq. Akole, Dist. Ahmednagar. 5-D Kusumbai Laxman Kale, Age : Major, R/o Bapusaheb Colony, Maldad Road, Sangamner, Dist. Ahmednagar. 6. Yamunabai Vishwanath Nisal, Age : 57 Years, 7. Leelabai Ganpat Thorat, Age : 53 Years, 8. Sau. Sunita Chandrakant Yeole, Age : 40 Years, Respondent Nos. 5B to 8 All 3 sa 527.10 are Agriculturist, Respondent Nos. 2 to 4 and 7 all R/o Dhandarphal, Tq. Sangamner, Dist. Ahmednagar, Respondent Nos. 6 R/o Kalas, Tq. Akole, Dist. Ahmednagar. Respondent No. 8 R/o Ganeshwadi, Tq. Sangamner, Dist. Ahmednagar. .. Respondents Shri S. T. Shelke, Advocate h/f Shri M. M. Nerlikar, Advocate for the Appellant. Shri S. K. Shinde, Advocate for Respondent Nos. 2 to 4. Shri A. S. Bajaj, Advocate for the Respondent Nos. 1B and 7. WITH SECOND APPEAL NO. 526 OF 2010 Kisan S/o Ganpat Kasar, Age : 85 Years, Occu. : Agril, R/o Dhandarphal, Tq. Sangamner, Dist. Ahmednagar, Through Special Power of Attorney, Bhamabai Kisan Kasar .. Appellant Versus Leelabai Ganpat Thorat, Age : 52 Years, Occu. : Agril., R/o Dhandarphal, Tq. Sangamner, Dist. Ahmednagar, .. Respondent Shri S. T. Shelke, Advocate h/f Shri M. M. Nerlikar, Advocate for the Appellant. Shri A. S. Bajaj, Advocate for the Respondent. 4 sa 527.10 CORAM : S. V. GANGAPURWALA, J. DATE : 26TH APRIL, 2011. ORAL JUDGMENT : . Present appellant had filed a suit bearing R.C.S. No. 471/1986 for declaration that the suit properties mentioned in para 1-A have been given to his share in partition and consequential relief of injunction. In the alternative the appellant prayed for 1/3rd share in the suit property. So also sought declaration that the gift deed in favour of present respondent No. 7 Leelabai is null and void. 2. The respondent Lilabai had also filed a suit for restoration of possession bearing R.C.S. No. 395/1986. The Trial Court dismissed the suit filed by the appellant and decreed the suit filed by the respondent Lilabai. Aggrieved thereby the present appellant preferred two appeals before the District Court. The District Court dismissed both the appeals. Aggrieved thereby the appellant has filed the present second appeals. 3. Shri Shelke, the learned counsel for the appellant submits that the lower Appellate Court being the last fact finding Court is expected to discuss the entire evidence on record, so also has to 5 sa 527.10 arrive at conclusive finding. Perusal of reasoning shows that the District Court has failed in its duty in coming to a proper conclusion after discussion of the evidence. The lower Appellate Court did not record any finding about survey No. 32/4 and 32/6 and the Court recorded that the Trial Court appreciated the evidence and recorded its finding on the basis of preponderance of probabilities, but has not given any independent findings. As such, the judgment of the District Court cannot be sustained. 4. Per contra, Shri Bajaj, the learned counsel for the respondent submits that, the cardinal principle of civil jurisprudence requires cases to be decided by preponderance of probabilities. The lower Appellate Court has considered the same. Once on preponderance the District Court has come to a particular conclusion and was confirming the judgment of the Trial Court, then it was not required to give a separate finding. 5. In the light of above, the following substantial question of law arises : i) Whether the judgment delivered by the Court below satisfies the test of being a last fact finding Cour ? 6 sa 527.10 ii) Whether the said judgment can be sustained without the lower Appellate Court coming to a definite conclusion ? Admit. 6. Taken up for final hearing with consent of parties. 7. The powers and authority of the District Court are spelt out U/O 41 of the Civil Procedure Code. The Appellate Court is the last fact finding Court and is expected to re-appreciate the evidence on record and then arrive at definite and conclusive findings. But perusal of the judgment of the District Court shows that practically in one para, the learned Judge has dealt with the whole matter and has held that from the circumstances, it can be gathered that the Trial Court reached the conclusion that Rajaram was competent to execute the gift deed. The said reasoning did not suggest that the Appellate Court has re- appreciated the evidence on record. It also does not appear that the Court has come to a conclusive or a definite finding and has only observed that the view taken by the Trial Court is a possible view. In view of the fact that the lower Appellate Court has not re-appreciated the whole evidence and has not given reasons for accepting the case of the particular party or rejecting the case of 7 sa 527.10 another party. In my opinion, the District Court has failed in its duty. 8. In the result, I quash and set aside the impugned judgments passed by the District Judge - 1, Sangamner and relegate the parties to the District Court. The parties shall appear before the District Court on 13.06.2011. The District Court shall after giving opportunity to the parties to put forth their case decide the same on its own merits. The second appeals are accordingly disposed of, however, with no order as to costs. The District Court shall decide the said appeals within a period of six (6) months from the date of appearance of the parties. The Record and Proceedings be sent back as early as possible. [ S. V. GANGAPURWALA, J. ] bsb/April 11