GINDER SINGH Vs. BAGGA SINGH

JUDGEMENT

(1.) This is second appeal by Ginder Singh, defendant against Bagga Singh plaintiff. It is directed against the judgment and decree of Shri Harish Chandra Gaur, Senior Subordinate Judge, Barnala dated September 27, 1965 confirming those of Shri Salig Ram Bakshi, Sub-Judge 1st Class, Phul dated October 28, 1964, decreeing the plaintiff's suit for possession of 5 Kanals 19 Marlas of agricultural land out of 12 kanals 6 marlas sued for. Facts leading to the appeal are as under :-

(2.) The trial Court decided issue No. (1) in favour of the plaintiff. The trial Court found on issue No. (2) that the plaintiff, by virtue of decree for possession by pre-emption obtained by him in respect of the land in dispute, was its owner. The finding given by the trial Court on issue No. (3) is to the effect that the defendant was not a mortgagee. On issue No. (4), it found that Civil Court had jurisdiction. On appeal, the lower appellate court concurred with the trial Court after discussion of the relevant evidence on the record, that the plaintiff was the owner of the land in dispute. That court, however, did not consider any of the other three issues, namely issue Nos. (1), (3) and (4). At the end of its judgment, it observed that the Findings of the learned Subordinate Judge on all the issues were perfectly correct and there was no reasons to differ from him and to modify his judgment. He has not applied his independent mind to the evidence to be considered under these issues. He has only not discussed the evidence as it exists on the record and pertains to these issues but also failed to consider the questions of law, to which to these issues give rise.

(3.) It is not a case, in which the counsel for the appellant or the appellant ever said at the bar that he did not want to press these three issues. A broad and vague statement in the judgment that the lower appellate court agreed with the findings on certain issues given by the trial Court, is no decision on these issues. As provided in Rule 31 of order 41 Code of Civil Procedure, court of appeal has to determine the questions of fact or law, which arise in an appeal after giving reasons for their determination. Mere concurrence with the findings of the trial Court does not absolve that court from its obligation of giving of independent findings. In the present case, I find that obligation as enjoined by the said provision upon the lower appellate court to independently determine these three issues, has not been discharged. The lower appellate court should have discussed the evidence and come to findings of its own. Dittoing the findings of the trial Court by the lower appellate court, is giving no finding at all. The lower appellate court has signally failed to comply with that provision, mandatory as it is. Hence its findings on issue Nos. (1), (3) and (4) by way of mere concurrence cannot stand.