IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (Ord.) 313 of 1999. Date of decision November 12, 2008. Sh. Jainti and others …Appellants. Versus Shiv Om and others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Ramakant Sharma, Advocate. For the respondents M/S. Dinesh Kumar Sharma and Yogender Paul, Advocates. Dev Darshan Sud, J. (Oral). This is the defendants ‘ appeal against the order passed by the learned Additional District Judge, Solan in an appeal preferred by the respondent – plaintiff against the judgment of the learned Sub Judge Ist Class, Solan dismissing the suit. I do not wish to comment on the facts of the case nor the manner in which the learned District 1 Whether Reporters of Local Papers are allowed to see the judgment? No. - 2 - Judge has proceeded to decide the appeal. Needless to say that the only thing that the judgment does is to narrate the facts, the judgments cited and thereafter he holds that “Although, respondent has also taken the plea of adverse possession in alternative but the learned Trial Court did not frame issue of adverse possession as per pleadings of the parties and I am of the view that findings regarding adverse possession is essential for the just decision of the case and to decide the case properly and effectively.” He then proceeds to accept the appeal, set aside the findings of the learned trial Court and remand the matter to the learned trial Court under Order 41 Rule 23-A of the Code of Civil Procedure. This is not a satisfactory way of dealing with a first appeal in which all questions of law and fact as urged have to be decided. Even if the learned Additional District Judge was of the considered opinion that findings on a newly framed issue were required, in that event, the proper course was to have either tried that issue himself or called for findings from the learned trial Court, but not to set aside the entire judgment. - 3 - The Supreme Court has time and again reaffirmed the principle of law that first appeal being a valuable right, the appellate Court is bound by law to determine all points of facts and law raised before it. The judgment in appeal does not conforms to these principles. (See Madhukar and others v. Sangram and others , (2001) 4 SCC 756, H.K.N.Swami v. Irshad Basith (Dead) by LRs. , (2005) 10 SCC 243 and Rama Pulp and Papers Ltd. v. Maruti N. Dhotre , (2005) 12 SCC 186). Learned Appellate Court was clearly wrong in taking recourse to the provisions of Order 41 Rule 23-A of the Code of Civil Procedure. The proper course would have been under Order 41 Rule 25 which provides: “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from:- “Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, - 4 - frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.” If the appellate Court was of the opinion that an issue requires to be determined before pronouncing the final judgment, the proper course was to have called for that finding from the trial court or to have determined such issue himself rather than setting aside the judgment and ordering of wholesale remand. The judgment of the learned appellate Court is accordingly set aside. A direction is issued to the learned District Judge, Solan: (i) to readmit the appeal; (ii) on the necessity of calling for findings on the question of adverse possession, the Court shall either - 5 - determine this issue itself or call for such finding from the trial Court after giving opportunity to both the parties to establish their respective claims. For this purpose, parties shall be given full opportunity to lead evidence to prove their respective contentions. On determination of such issues, the appeal shall be reheard by the learned District Judge on all points urged including the newly framed issue. Parties shall appear before the learned District Judge on 11.12.2008. The appeal is disposed of accordingly. Records be sent back immediately. All pending applications shall stand disposed of. There shall be no order as to costs. November 12, 2008 (PC). (Dev Darshan Sud), J.