CHUNI LAL Vs. DURGA DASS

JUDGEMENT

(1.) Looking to the nature of the order, I propose to pass, it is not at all necessary to refer to the facts in detail. Suffice it to say that the plaintiff filed a suit for possession and separating the share of parties by passing a preliminary decree of partition.

(2.) The suit was decreed by the learned trial Court on 06.11.2017 by passing a preliminary decree for partition. However, on appeal, the said judgment and decree came to be reversed by the learned first appellate Court on 13.11.2018, constraining the appellant/plaintiff to file the instant appeal. However, I find that the learned first appellate Court has not at all decided the case as is required under the law.

(3.) It is settled principle of law that right to file first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the litigant. The jurisdiction of the First Appellate Court while hearing the First appeal is very wide like that of learned trial Court and it is open to the appellant to attack all findings of fact or/and of law in the first appeal. It is duty of the First Appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all 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 assigned 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.