HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. : 111 of 2001. Judgment reserved on : 20.9.2011. Date of decision: 21.9.2011. Amar Sain ……Appellant. Versus Kunan Singh ………Respondent. Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr. Romesh Verma, Advocate. For the respondents: Nemo. V.K. Ahuja, J.(Oral): This is a Regular Second Appeal filed by the appellant/plaintiff against the judgment and decree of the Court of learned Additional District Judge, Shimla, dated 16.12.2000 vide which the appeal filed by the respondent Kunan Singh was allowed and the judgment and decree passed by the learned Sub Judge 1st Class, Roharoo, dated 6.4.2000 was set aside. 2. Briefly stated the facts of case are that the appellant (hereinafter referred to as plaintiff) filed a suit for declaration and injunction alleging that he was owner in possession of the land comprised in khasra Nos. 97 and 101. He also challenged the entries in favour of one Chandermani and original defendants Chandervir and Kunan Singh (hereinafter referred to as defendants) showing them in possession of the suit land. Kunan Singh is respondent before me. The defendants filed written statement claiming that defendant No.1 was owner in possession of khasra No.97, while defendants No.2 asserted his possession over khasra No.101. - 2 - 3. The learned Sub Judge 1st Class vide his impugned judgment held that in so far as the khasra No.97 is concerned, the suit is stayed under Section 10 of the Code of Civil Procedure, while in regard to khasra No.101, the plaintiff was declared to be owner in possession of the suit land and was also granted the relief of permanent injunction. 4. On appeal by the respondent, the learned Additional District Judge vide its impugned judgment allowed the appeal and dismissed the suit of the plaintiff/respondent. Being aggrieved, the plaintiff has filed the second appeal. 5. I have heard the learned counsel for the appellant and the respondent was proceeded against ex-parte. I have also gone through the records of case. 6. During the course of argument, it was pointed out by the learned counsel for the appellant that while disposing of the appeal vide its impugned judgment, the learned Appellate Court has taken one point for consideration i.e. that the plaintiff has not stepped into the witness box and, therefore, adverse inference will have to be drawn against him and as such it was held that the impugned judgment and decree are not legally and factually sustainable. A perusal of the judgment shows that there were as many as eight issues framed and the findings had been given separately under each issue by the learned Sub Judge 1st Class, but the learned Appellate Court only took up the point as to the effect of the non appearance of the plaintiff in the witness box and did not refer to the findings under other issues or the evidence and did not give any findings on each of the issue, which had been decided in favour of the plaintiff/appellant. The learned Appellate Court being the first Court of Appeal was required to give its findings on each of the issue by referring to the evidence and thereafter appeal should have been disposed of. However, in a slipshod manner the - 3 - learned Appellate Court only took up the plea in regard to the non examination of the plaintiff and did not refer to the findings given on the other issues but held in general that the findings are not sustainable in the eyes of law. This approach adopted by the learned Appellate Court cannot be said to be in accordance with law and being the first Court of appeal, it was required to refer to the evidence and give its findings on each of the issues when these were being set aside by the learned Appellate Court. 7. In view of the above discussion, I accordingly hold that I have no option but to remand the case to the Court of learned Additional District Judge, Shimla for hearing the parties afresh, after issuing the notices to the respondent and shall dispose of the appeal by giving its findings separately on each of the issue. I may also point out that an application under Order 41, Rule 27 of the Code of Civil Procedure filed by the appellant and the said application was allowed and certain documents had been placed on record by the applicant which documents shall also be sent to the learned Additional Sessions Judge, Shimla who shall also consider the same and dispose of the appeal in accordance with law. 8. The appeal is allowed accordingly with no orders as to the costs. The Registry is directed to send the records of the case forthwith along with the copy of this judgment for disposal in accordance with law. 9. In view of the above, the appeal stands disposed of, so also the pending application(s), if any. September 21, 2011. (V.K. Ahuja), (jai) Judge.