PURSHOTTAM Vs. GULSHANBAI

JUDGEMENT

(1.) IT is an appeal by the plaintiff against the dismissal of his suit by the first appellate Court. It was admitted for final hearing under section 100 of CP. Code on following substantial question of law :

(2.) HEARD Shri R.C. Parmar, L/c for the appellants and Shri B.K. Joshi, L/c for the respondents.

(3.) I have gone through the first appellate Court's judgment. Though it is a judgment of concurrence, yet it does not discuss any issue much less the relevant issue in its real and proper perspective as a first appellate Court. The question involved in appeal did relate to title of plaintiff and it had to be gone into in detail with reference to oral and documentary evidence. In particular the first appellate Court should have examined the issue in the context of Ex. P-4 and P-5 which are two orders of Revenue Courts in favour of plaintiff. In other words, the impact or effect of these two orders ought to have been examined in its correct perspective to decide whether defendant has acquired the rights of Bhumiswami or not. Unfortunately, the first appellate Court did not discuss any issue nor examined the issue as a first appellate Court. It was thus a case where the first appellate Court failed to exercise the jurisdiction vested in it by law and dismissed the appeal. I, therefore, propose to reframe one additional question and then answer the same in favour of the appellant by remanding the case to first appellate Court for rehearing of the appeal afresh in accordance with law and keeping in view the observations made supra.