1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL.NO.504/1991 ---------------------------------------------------- Keshar Singh Sandu Singh Pardeshi age 35 years, Occupation agriculturist R/o Rajewadi, Taluka and Dist.Jalna. .. APPELLANT [ORIG.PLAINTIFF] VERSUS 1] Paraji Bhagwantrao Age 32 yrs, Occ-Agril. r/o Nazik Pangri, Taluka and Dist.Jalna. 2] Sandu Singh Bandu Singh Pardeshi age 65 years, occ-Agril R/o Rajewadi, Tq.and Dist.Jalna. .. RESPONDENTS [ORIG.DEFTS] .... Shri S.S.Bora,Adv.for appellant. None for respondents. CORAM : R.K.DESHPANDE,J. DATE :07/08/2009 ORAL JUDGMENT : This is an appeal challenging the judgment and order dated 29/4/1991 passed by the learned Additional District Judge, Jalna, dismissing Regular Civil Appeal No.140/1984 filed by the appellant by 2 confirming the judgment and decree dated 21/8/1984 passed by the learned Joint Civil Judge, Junior Division, Jalna dismissing Regular Civil Suit No.32/1977 filed by the plaintiff who is the appellant in this case. The respondent no.2 is the original defendant no.2 and the father of the plaintiff. The respondent no.1 is the original defendant no. 1. 2] The appellant plaintiff filed Regular Civil Suit No.32/1977 for declaration that the sale deed dated 14/6/1976 executed by defendant no.2 in favour of the defendant no.1 to the extent of 4 Acres of land on the North of land survey no.359, of Rajewadi is ineffective and inoperative against the plaintiff and his family members. The case of the appellant-plaintiff was that the deft.no.2, the father of the plaintiff had lost his sense and mental capacity and therefore, the appellant plaintiff being his eldest son, was the Karta of the joint family. According to the appellant, the property belonged to the joint family and hence the sale deed was questioned in the said civil suit. The learned Judge of the trial Court framed issues. The Issue no.2 framed was that "Does the defendant no.1 prove that the suit land was the self acquired property of the defendant no.1 3 and that the same was sold by him for the legal necessity and for the benefit of the estate? " The issue was answered in the negative but the suit was dismissed. 3] The appellant original plaintiff preferred Regular Civil Appeal No. 140/1984 and the memo of appeal enumerating about 11 grounds of challenges is placed on record. The learned Judge of the appellate Court decided the Regular Civil Appeal No.140/1984 by his judgment and order dated 29/4/1991. The appeal came to be dismissed. Hence this Second Appeal preferred by the original plaintiff. 4] While admitting the instant appeal, the substantial questions of law as stated in ground nos.3,4,5 and 8 were framed. Ground no.3 regarding substantial question of law is reproduced below : "3. That the substantial question of law in the present case is as to whether the lower appellate Court which was final fact finding Court was justified in dismissing the appeal without framing issues for its consideration thereby causing miscarriage of justice to the appellant." 4 The learned counsel for the appellant Shri Bora states that without going into the other substantial questions of law which are framed, the instant appeal can be decided on the substantial question of law which is reproduced above. According to the learned counsel, the matter is covered by judgment of the learned Single Judge of this Court delivered on 14/10/2008 in Second Appeal No.68/1991. The learned counsel relies upon para 8 of the said judgment which is reproduced below : "8. It is important to pin-point that the first Appellate Court did not raise any point for consideration. The learned Civil Judge discussed the oral and documentary evidence tendered by the parties on the issues which were framed. The learned Additional District Judge simply proceeded to decide the appeal by saying that whether the plaintiffs have proved the issues, would be point for determination. This kind of methodology is outside the pale of provisions contained in Order-XLI Rule-31 of the Civil Procedure Code. It is the duty of the first appellate Court to raise appropriate points for determination and to decide all questions involved in the first appeal. 5 For, the first Appellate Court is the final Court of facts. The failure of the first Appellate Court to frame proper points is not only a technical error, but it is an error which would vitiate the judgment in asmuch as the duty assigned to the first Appellate Court is not discharged at all. The learned counsel submits that in the present case also, the learned District Judge, Jalna who decided R.C.A.No.140/84 did not frame the points for determination and there was complete breach of the procedure as laid down under Order 41 Rule 31 of C.P.C. for deciding of an appeal. The learned counsel submits that the learned Judge of the appellate Court has merely stated in para 3 of his judgment that the only point raised is that the trial Court wrongly held the plaintiff not be a Karta of the family and therefore, the same is only the point for determination. According to the learned counsel, none of the points raised in t his memo of appeal are taken into consideration. The points for determination have not at all been framed and this has resulted in vitiating the entire judgment of the appellate Court. 5] I have gone through the judgments cited by learned counsel for the appellant. I have perused the judgment and order passed by the 6 learned Additional District Judge, Jalna in R.C.A.No.140/84 alongwith the memo of appeal. Perusal of the memo of appeal clearly indicates that the appellant has raised about 11 grounds of challenges including the substantial questions of law, which are urged before this Court in the Second Appeal. It is also apparent from the judgment of the appellate Court that the appellate Court has not framed points for determination. The appeal before the first appellate Court is required to be decided on questions of facts as well as the questions of law. In view of the judgment cited by learned counsel for the appellant, the matter is no more res-integra and hence the instant appeal succeeds. 6] In view of above, the judgment and order dated 29/4/1991 passed by the learned Additional District Judge, Jalna in Regular Civil Appeal No.140/1984 is hereby quashed and set aside. The matter is remitted back to the appellate Court for deciding it afresh in accordance with the provisions of Order 41 Rule 31 of C.P.C. in the light of the judgments cited before this Court. There shall, however, be no order as to costs. [R.K.DESHPANDE] JUDGE umg/sa504-91