YESHWANT Vs. TUKARAM GAMBHIR BAUSKAR

JUDGEMENT

(1.) Delay condoned. Leave granted.

(2.) The plaintiff-respondent filed a suit for specific performance of an agreement to sell. The suit was contested on very many grounds by the defendant-appellant. There were as many as seven issues framed. On all the issues, excepting one, the trial court recorded findings in favour of the defendant and against the plaintiff. The plaintiff preferred an appeal. The First Appellate Court reversed the finding of the trial court mainly on the question - whether the execution of agreement to sell was proved or not. Having held that execution of the agreement was proved, the appellate Court set aside the decree of the trial court and passed a decree for specific performance. A perusal of the judgment of the first Appellate Court shows that not only issues other than the issue relating to execution of agreement were not dealt with by the First Appellate Court but even on the question of execution of agreement, all the relevant evidence and circumstances were not taken into consideration. The judgment of the First Appellate court does not satisfy the requirements of a first appellate judgment as laid down by this Court in Santosh Hazari vs. Puruahottam Tiwari more so when it is a judgment of reversa. The defendant preferred a second appeal in the High Court but the same has been dismissed as raising no substantial question of law.

(3.) First appeal is a valuable right of an appellant inasmuch as all the questions of law and fact arising for decision in the case are reopened for consideration. Having heard the learned counsel for the parties, we are satisfied that the first appeal has not been satisfactorily disposed of and there has been a prejudice to the defendant-appellant. The High Court ought to have noticed this infirmity in the judgment of the First Appellate Court and should have set aside the said judgment on this ground alone.