1 192.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 192 OF 2011 Laxman Dagdu Dhage. ... Appellant. V/s. Shankar R. Dhage and others. ... Respondents. J.S.Kapre for the appellant. Dilip Bodake for respondent No.1. Umashankar Upadhyay with Madhav S. Surana i/b. S.G.Surana for respondent Nos.2A to 2C and 3 and 4. CORAM: R.M.BORDE, J. DATED : 27th September 2011. P.C. : Heard. By consent of parties appeal is heard finally at the admission stage. 2. This appeal is preferred by the appellant/ original defendant No.4 raising exception to the common judgment and decree passed in Regular Civil Appeal Nos.30/2002 and 31/2002 decided by Extra Joint Ad-hoc District Judge, Satara on 30th September 2010. Suit came to be instituted by the original plaintiff/ respondent No.1 2 192.11-ao herein being Regular Civil Suit No.89/1990 claiming declaration that the property in dispute is an ancestral property and for partition and separate possession of the ancestral property. The defendant No.1 is the father of the plaintiff and brother of defendant Nos.4, 5, 6 and 7. Defendant Nos.2 and 3 are the wife and son of defendant No.1 i.e. mother and brother of the plaintiff. Defendant No.8 is not concerned with the property. However, he has been impleaded in the suit as he claims to have joint share in the common well situate in the disputed agricultural property. Defendant No.9 is the sister of defendant Nos.1 and 4 to 7. The suit claim is resisted by defendant Nos.1 and 4 to 7 by presenting written statement. It is contention of the contesting defendants that there was previous partition in respect of ancestral property effected in the year 1964, however, memorandum of partition was drawn in the year 1967. Defendant No.4 claimed that there are certain properties which are self-acquired properties and purchased after effecting partition of the ancestral properties. Defendant No.5 accepted the case put up by other defendants in respect of partition of the immovable properties, however, claimed that there was no partition in respect of movable properties. Defendant No.6 and 7 claim that there was a previous partition in respect of ancestral properties and prayed for dismissal of the suit. 3. The learned trial Judge, after receiving the evidence led by the parties, partly decreed the suit. It is held by the trial Court that the plaintiff is entitled to declaration that he has share in the suit property. It is declared that the plaintiff is entitled to have 1/3rd share in the property fallen to share of def. No.1. At the same time, defendant No. 1 and defendant No.3 are also held to be entitled to have 1/3rd share 3 192.11-ao each in the property which had fallen to the share of defendant No.1. The trial Court dismissed the suit claim ---- in respect of self-acquired properties as claimed by defendant Nos.3 and 4. 4. The judgment and decree passed by the trial Court was subjected to challenge at the instance of original plaintiff as well as defendant No.5 in Regular Civil Appeal Nos.30/2002 and 31/2002. The first appellate Court considering the request made by the appellants therein as well as heirs of defendant No.1 quashed and set aside the judgment and decree passed by the trial Court and remitted the matter back to the trial Court for rending the decision afresh. The development that has occurred during continuation of the appeal is that defendant No.1 died and his legal heirs were brought on record. Thus, legal heirs of defendant No.1 also supported the claim of the plaintiff and requested for remitting the matter back to the trial Court. 5. The substantive questions of law arise for consideration in this appeal are as under: (i) As to whether the judgment delivered by the first appellate Court is in consonance with the provisions of order 41 rule 31 of C.P.C. and whether the appellate Court has exercised the powers in conformity with the provisions of order 41 rule 33 of C.P.C.? (ii) Whether the appellate Court was justified in remitting the matter back to the trial Court for rendering the decision afresh and whether the order passed by the first appellate Court is in consonance with the provisions of order 41 rule 23 of C.P.C.? 4 192.11-ao 6. I have heard the arguments advanced by learned counsel for the parties and perused the judgment of the appellate Court. The appellate Court while deciding appeals has not framed points for consideration as contemplated by order 41 rule 31 of Code of Civil Procedure, 1908 (C.P.C.). The first appellate Court in a cursory manner referring to some of the factual infirmities in the decision rendered by the trial Court in describing the case put up by the parties remitted the matter back to the trial Court holding that the judgment delivered by the trial Court is without application of mind to the record of the case. It is true that the trial Judge proceeded on the basis of erroneous facts and assumptions while rendering decision, however, it is the responsibility of the appellate Court to examine the evidence independently and arrive at proper findings. Merely because the trial Court has committed certain errors in recording the factual aspects of the matter would not be an appropriate reason for remitting the matter back to the trial Court. The first appellate Court is invested with all powers to reappreciate evidence on record and record his independent findings. The first appellate Court being a last fact finding court it owes the responsibility of appreciating the evidence placed on record by the parties and record its own findings. The reasons recorded by the first appellate Court for remitting the matter back to the trial Court are not sustainable. The appellate Court has not dealt with the appeals in proper manner and has not performed the functions expected of the appellate Court as has been dealt with in detail in the case of Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179; wherein the Apex Court observed thus: 5 192.11-ao 15. ..... ..... ..... The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., (1983) 1 SCC 35 : AIR 1983 SC 114). The rule is 6 192.11-ao -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. 7. A reference can be made to the judgment of the Apex Court in the case of Municipal Corporation, Hyderabad v. Sunder Singh, (2008) 8 SCC 485. It is observed by the apex Court in paragraphs- 17 and 18 of the judgment as under: 7 192.11-ao 17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties. 8. Thus, on perusal of the judgment passed by the appellate Court, it appears that the appellate Court has not dealt with the issues arising in the matter and has not recorded its findings on each and every issue. The exercise of powers by the appellate Court in the present case is not in consonance with the provisions of order 41 rule 23 of C.P.C. and, therefore, the order remitting the matter to the trial Court is unsustainable. It is expected of the appellate Court to deal with the matter, consider the merits of the case and record its independent findings on all issues involved in the matter. Both the questions are, therefore, answered in negative. The order passed by 8 192.11-ao the appellate Court remitting the matter back to the trial Court is unsustainable and, therefore, liable to be quashed and set aside. 9. In the result, appeal from order is allowed. The judgment and decree passed by the Extra Joint Ad-hoc District Judge, Satara in Regular Civil Appeal Nos.30/2010 and 31/2010 is quashed and set aside and the appellate Court is directed to deal with the appeals in accordance with the provisions of law and in consonance with the observations made in this judgment. The appellate Court is directed to consider the evidence placed on record and decide both the appeals as expeditiously as possible, preferably, within six months from today. In the facts and circumstances of the case, there shall be no order as to costs. 10. In view of disposal of appeal from order, pending civil application does not survive and stands disposed of accordingly. (R.M.BORDE, J.)