1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 64 OF 2008 Shri Krishna Mukund Parsekar, Pedne, Goa. ... Appellant V/s Shri Manohar Tukaram Parsekar & 9 Ors. .... Respondents Mr. A.F. Diniz, Advocate for the Appellant. Mr. V.P. Thali, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 13th FEBRUARY, 2009 ORAL ORDER : Heard learned Counsel on behalf of the parties. 2. The dispute between both the parties relates to the properties surveyed under No. 302/16 and 264/23 of Arambol Village in Pernem Taluka. It is an admitted position that Form No. I and XIV in relation to both the said properties stood in the name of appellant/original plaintiff and the donor, who made a Gift Deed in favour of defendants nos. 1 & 2. Both the parties had not produced any title documents. The suit was filed for injunction raising a plea that plaintiff was in possession of the suit properties and for declaration that the said Gift Deed was null and void. The learned trial Court gave a finding that the plaintiff was in possession of the said properties. 2 3. The learned Counsel on behalf of the appellant points out that the finding of possession was raised before the learned first appellate Court and it was contended that in the light of the said possession being in favour of the plaintiff, the trial Court ought to have granted prayer (A) of the plaint. Learned Counsel on behalf of the respondents points out to para 6 of the judgment of the first appellate Court and submits that the appeal was restricted to the findings of the learned Civil Judge in respect of the Gift Deed alone. The learned trial Court having given a finding that the plaintiff was in possession of the suit property, it was necessary for the learned first appellate Court to have examined the said findings and in the light of that what relief could have been granted to the plaintiff. If the plaintiff was in possession, that possession could have been disturbed only by a person having a better title than the plaintiff. If both the parties were in possession than the plaintiff could at least, continue with his possession. Since that aspect has not been examined by the learned first appellate Court, the judgment of the learned first appellate Court is hereby set aside and the case is remanded to the learned first appellate Court to consider all issues afresh. Parties to appear before the first appellate Court on 31/03/2009 at 10.00 a.m. N.A. BRITTO, J. NH/-