Case: SOMAKKA (DEAD) BY LRS Vs. K.P. BASAVARAJ (DEAD) BY LRS

is expected of him as an appellate court. 29. Further following the above, there have been a series of judgments by this Court; 29.1 In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below: 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 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. … 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. 29.2 In H.K.N. Swami vs. Irshad Basith (2005) 10 SCC 243, this Court again reiterated the same principle in paragraph 3 of the judgment: 3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar (2015) 1 SCC 391 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder: 18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the Trial Court can be sustained or not and if so, how, and if not, why. 19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we unable to uphold the impugned judgement of the High Court. 29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and others vs. Shyamsundar and Others (2022) 3 SCC 90, reiterated the same view in para 8 thereof, which is reproduced hereunder: 8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment. 30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside. 31. The next question which arises is that where the judgment of the Appellate Court is being set aside on the ground of non- consideration of the evidence on record, the matter would normally be required to be remanded to the First Appellate Court, whether in the facts and circumstances this case requires a remand. In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Heard learned counsel for the parties and perused the material on record. It may be noticed that this Court, while issuing notice vide Order dated 30.07.2007 had confined it to the question of shares of the parties in Item No.3 of Schedule A of the property.Remaining claim of the appellant regarding ½ share in item nos. 1 and 2 of Schedule A and Schedule B properties stand closed at the stage of first appeal before the High Court.28. Learned Judge V.R. Krishna Iyer, J., [as he then was a Judge of the Kerala High Court] in 1969, while deciding the case between Kurian Chacko vs. Varkey Ouseph AIR 1969 Ker 316,  dealing with a similar judgment of the First Appellate Court which had been disposed of by a brief order, observed as follows:…2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.29. Further following the above, there have been a series of judgments by this Court;29.1 In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below: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 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. … 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.29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar (2015) 1 SCC 391  considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder:18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the Trial Court can be sustained or not and if so, how, and if not, why.19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we unable to uphold the impugned judgement of the High Court.29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and others vs. Shyamsundar and Others (2022) 3 SCC 90,  reiterated the same view in para 8 thereof, which is reproduced hereunder:8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state(a) points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment.30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside.In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court.