1 SA 188.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 188 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.S.D.Kulkarni, Advocate hold for Mr.Sanket S.Kulkarni , Advocate for the appellant. Mr.V.S.Badakh, Advocate for the resp.no. 1 & 2. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/04/2011 PER COURT : 1. This is the appeal by the original plaintiff. The plaintiff had filed Suit for simplicitor injunction contending that the plaintiff is in possession of the property and the defendant is interfering in the possession. The trial Court decreed the Suit and restrained the defendants from interfering in possession of the plaintiff. The defendants aggrieved by the said decree being passed by the trial court, preferred Appeal before the District Court. The District Judge – 2, Kopergaon allowed the Appeal and dismissed the Suit of the plaintiff. The plaintiff has assailed the said Judgment in the present Appeal. 2 SA 188.2011 2. Mr. Kulkarni, the learned counsel for the appellant contended that the lower appellate Court while passing the impugned Judgment has not discussed the evidence led by the parties interalia has failed to perform his duty as is required by virtue of Section 107 read with Order XLI of the Code of Civil Procedure. According to the learned counsel, relying on the stray entry, the District Court has passed the impugned Judgment. Even the points for determination were not framed. The lower appellate court did not deal with the reasons given by the trial court while passing the decree. As such, the learned counsel states that the said impugned Judgment is not sustainable in the eyes of law. The plaintiff is in possession of the property which is substantiated by the long standing entries and the evidence on record. 3. Per contra, Mr. Badak, the learned counsel for the respondents submits that the property was mortgaged to the defendants. Pursuant to the same, the defendants are in possession of the suit property. Even the entry to that effect was made, but the same was subsequently at the behest of plaintiff illegally cancelled. The District Court has considered the factum of mortgage, the possession of the defendant and has rightly passed the said Judgment. 3 SA 188.2011 4. In light of the above, the following substantial questions of law arises : (i) Whether the lower appellate Court while reversing the finding of fact has come within the close quarters of the reasonings given by the trial Court ? (ii) Whether the Judgment of the lower appellate Court can be sustained in as much as it has not discussed the total evidence on record, more particularly, when it was the last fact finding Court ? 5. Admit. 6. With the consent of the learned counsel for the respective parties, the matter is taken up for final hearing. Mr. Badak, the learned counsel states that he has been instructed to appear for all the respondents. 7. The Appeal is the substantive right of the party and the lower appellate Court exercising its power under Section 96 of the Code of Civil Procedure read with Order XLI is the last fact finding Court. The last fact finding Court is expected to deal with the entire evidence on 4 SA 188.2011 record and arrive at an independent conclusion. If the lower appellate Court is reversing the finding of fact arrived at by the trial Court, then the duty is cast on the lower appellate court to deal with the reasons given by the trial Court and has to come within the close quarters of the reasonings given by the trial Court. The said aspect is no longer res-integra in view of the Judgment of the Apex Court in the case of Santosh Hazari V/s Purushottam Tiwari (Dead) by L.Rs. reported in 2001 AIR SCW – 723. 8. From the perusal of the Judgment of the lower appellate Court, it is manifest that the lower appellate Court has not discussed the evidence on record i.e. the oral evidence adduced on record, the various entries in the revenue record and other attending circumstances, which were discussed by the trial Court while delivering the Judgment. If the reasons given by the trial Court, did not find favour with the lower appellate court, then the lower appellate court was expected to deal with the same so as to show the conscious application of mind by the District Court while reversing the said finding. 9. As the Judgment of the lower appellate Court does not depict such an exercise being done 5 SA 188.2011 nor shows the consideration and re-appreciation of the evidence on record, the said Judgment can not be sustained in law and it would be appropriate to remit the parties back to the District Court for decision afresh. 10. In light of the above, the substantial question of law are answered accordingly. The impugned Judgment and decree passed by the District Judge – 2, Kopergaon dated 23/2/2011 in R.C.A. No. 21 of 2003 is quashed and set aside and the parties are relegated to the District Court. The parties shall appear before the District Court on 13/6/2011. The District Court shall after hearing the learned counsels decide the said Appeal afresh in light of what has been observed above. 11. The Second Appeal is accordingly disposed of, however with no order as to costs. 12. In view of disposal of Second Appeal, the Civil Application is also disposed of. [ S.V. GANGAPURWALA,J. ] KNP/SA 188.2011