1 sa401­09 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.401 OF 2009 WITH CIVIL APPLICATION NO.1255 OF 2009 Babasaheb Ganpati Gulve .. Appellant V/s. Dyandeo Babu Pawar (Since deceased through his LR's) Smt. Savitribai Dyandeo Pawar & Others .. Respondents ..... Mr. P. D. Pise for the appellant. Mr. Tushar Pimple i/b. Mr. Amit Sale for respondent Nos.1(a) to 1(e). ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 16, 2011. P.C.: Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 2. The following substantial question of law arises: (i) Whether the Judgment of the Appellate Court is vitiated as proper points for determination arising out of the Appeal were not framed and not discussed ? 3. Appeal is forthwith taken up for final hearing. 2 sa401­09 4. The respondents are the legal representatives of the original plaintiff and the appellant is the defendant. The suit filed by the respondent was dismissed by the trial Court. The issues framed by the trial Court read thus: 1. Whether the plaintiff prove that common way of 3 feet width was kept towards southern side for access to plaintiff as pleaded ? No. 2. Does the plaintiff prove that the defendant has illegally closed this way and started grocery shop as alleged ? No. 3. Whether the plaintiff is entitled for relief of mandatory and temporary injunction as prayed ? No. 4. Reliefs­Order ? As per final order. 5. In Appeal preferred by the respondents, only one point for determination was framed which reads thus: 1. Whether the defendant is obliged to perform any act to give access to the plaintiff ? Yes. 6. Perusal of the impugned Judgment of the Appellate Court shows that there is absolutely no consideration of oral evidence adduced by the parties as well as the documentary evidence 3 sa401­09 produced on record. To say the least, the impugned Judgment is perverse. The Appellate Court is the last fact finding Court and therefore, it was necessary for the Appellate Court to consider all the factual aspects of the case. Therefore, the only option available to this Court is to set aside the impugned Judgment and remand the Appeal for fresh consideration. 7. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree dated 1st July, 2008 passed by the District Judge­2, Sangli is quashed and set aside and Regular Civil Appeal No.437 of 1998 is restored to the file of the District Court, Sangli. ii. Parties are directed to appear before the learned Principal District Judge, Sangli on 7th December, 2011. The learned Principal District Judge, may take up the matter himself or may assign it to any other District Judge as per his administrative convenience. iii. The Appeal shall be decided a fresh as expeditiously as possible and preferably on or 4 sa401­09 before 30th April, 2012. iv. All contentions of the parties on merits of the Appeal are kept open. v. Appeal is partly allowed on the above terms with no order as to costs. vi. Civil Application No.1255 of 2009 does not survive and the same is disposed of. (A.S.OKA, J.)