IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.67 of 2002 Date of decision: 17.08.2010. Sukh Chain Singh … …Appellant Versus Smt.Shyama Devi & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Ajay Kumar, Advocate. For the Respondents: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the appellant, who was the plaintiff before the learned trial Court, against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court and dismissing the suit of the appellant-plaintiff. 2. The case of the plaintiff was that the land comprised in Khata No.163, Khatauni Nos.250 and 251, measuring 1-18 bighas, situated in Chak Gajyani and Khata No.108, Khatauni No.174, measuring 111-5 bighas, situated in Chak Pekha, Tehsil Chirgaon, District 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Shimla, stood partitioned by a family private partition dated 17.6.1973 and that the order passed by the Divisional Commissioner directing fresh partition is illegal and not binding on the plaintiff. 3. For the purposes of the present decision, only the first issue settled by the trial Court would be relevant which is “as to whether the plaintiff is the owner in possession of the suit land in an exclusive manner as alleged”. The trial Court finds this in favour of the plaintiff alongwith issue No.4 that the suit is jointly owned and possessed by the parties. To arrive at this conclusion, the learned trial Court referred to the document Ex.PW-1/D which is one of the basic document(s) relied upon by the plaintiff to assert that there has been a partition between the parties. 4. In appeal, the learned appellate Court has reversed the judgment. Apart from the fact that the learned Court considers various judgments, on the document Ex.PW-1/D has been relied upon to prove the partition the appellate Court holds that it is an arrangement for cultivation of agricultural land and cannot be considered to be a partition of agricultural holdings or other property and does not satisfy the requirement of law. There is nothing in the judgment or in the reasoning which it undertakes to indicate how and under what circumstances/ground the learned appellate court arrived at this conclusion. Merely 3 saying that it is an arrangement for separate agricultural cultivation is by itself insufficient and cannot be accepted as a final finding of fact, more so when this document was pivotal to the entire case and the questions of law as urged also hinges on the interpretation of this document. Without pronouncing upon the finality of interpretation what I find is that this document also deals with separate arrangement etc. having been made for residence etc. As to whether this would amount to partition or not is a question to be determined by the appellate Court on the evidence on record. 5. Without giving reasons on the basis of which this conclusion has been arrived at, I cannot persuade myself to hold that the judgment satisfies the requirement of Section 96 of the Code of Civil Procedure which calls upon the first appellate Court to pronounce the judgment on every fact urged and to give its findings on every question of fact. 6. I am alive to the fact that while remanding the matter I would be setting the clock back as the suit relates to the year 1988, but the manner in which the case has been dealt with, leaves no option with me. 7. In these circumstances, the judgment and decree of the learned appellate Court is set aside. The case is remanded to the learned appellate Court below for decision afresh in accordance with law. The learned appellate Court shall consider and interpret 4 inter alia Ex.PW-1/D and then to arrive at conclusion as to whether there has been a partition or not. 8. Parties to appear before the learned District Judge, Shimla, on 17th September, 2010 who shall dispose of the case not later than 31st December, 2010. Let record of the Court below be sent back immediately. August 17, 2010. (Dev Darshan Sud) (aks) Judge.