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2005 DIGILAW 3262 (RAJ)

Kailash Giri v. Akhey Giri through LRs.

2005-12-08

SHIV KUMAR SHARMA

body2005
Honble SHARMA, J.–In these two appeals since identical findings arrived at by the learned Additional District Judge No. 6 Jaipur City vide decrees dated January 2, 1981 in Civil Regular first appeals No. 102/80 and 103/80, are under challenge, I propose to decide them by a common order. (2). Contextual facts depict that Akhey Giri filed suit No. (108/55) on May 27, 1955 against Pratap Giri and Tara Giri for partition claiming 1/3 share in the suit property. After about two years i.e. on March 23, 1957 Tara Giri, the uncle of Akhey Giri, filed another suit (50/1957) against Pratap Giri and Akhey Giri seeking partition and possession of the suit property. Both the suits were consolidated. Learned Additional Civil Judge No.2, Jaipur City on the basis of pleadings of the parties framed issues, examined witnesses and passed preliminary decree dated June 5, 1971 holding that Akhey Giri and Tara Giri each were entitled to 1/3 share in the suit property shown in the site plan 2 Ka. Suit Property 2 Kha was declared as joint property, whereas suit in regard to suit property 2 Ga, Gha and 5 was dismissed. (3). Against the said decree Akhey Giri and Prahlad Giri S/o Tara Giri filed first appeals bearing Nos. 102/80 and 103/80. Learned Additional District Judge No. 6, Jaipur City although decided the appeals by two independent decrees but the date of decrees and conclusion was common. It was held that the plaintiffs were entitled to seek partition only of the properties mentioned in para `Ga, `Gha and `Na in the judgment. Against these decrees dated January 2, 1981 of the learned first appellate court that the instant appeals have been filed by the defendant Kailash Giri. (4). I have heard learned counsel for the parties and scrutinised the record. (5). Against these decrees dated January 2, 1981 of the learned first appellate court that the instant appeals have been filed by the defendant Kailash Giri. (4). I have heard learned counsel for the parties and scrutinised the record. (5). In suit No. 108/55 instituted by Akhey Giri, learned trial court formulated as many as 7 issues as under:- 1- D;k tk;nkn eqUntsZ uEcj 2 ¼d½ ¼[k½ ¼x½ ¼?k½ o ¼M½ eks:lh gS vkSj dkfcys rdklek gSA 2- vk;k eqíbZ ,d frgkbZ fgLlk ikus dk gdnkj gSA 3- D;k edku eqrftdjk en uEcj 2¼d½ ekfQd vthZnkos ds pkSd eqrjdk ds mRrjh Hkkx esa izfroknh uEcj 1 us fcyk brgdkd rkehjkr djk jgk gS vkSj mldk nkos ij D;k vlj gSA 4- D;k ekfy;r xyr dk;e dh xbZ vkSj dksVZ Qhl ,Mosyksje isk djuh pkfg;sA 5- D;k nkok vUnj fe;kn ugha gSA 6- D;k vkjkth Hkksx o efUnj vfr;k jkt gS o ukdkfcys rdklek gSA 7- vk;k vkjkth eqUntkZ en uEcj 2¼6½ dkr dh gS blfy, bldk nkok vnkyr gktk ds lekvr ds dkfcy ugha gSA In Suit No. 50/1957 filed by Tara Giri following 16 issues were framed:- 1- vk;k tk;nkn eqUntkZ en uEcj 2 vthZnkok eks:lh gS vkSj dkfcys rdklek gSA 2- vk;k edku iq[rk eqUntkZ en uEcj 2¼d½ vthZnkok iSf=d lEifr ugha gS blfy, ukdkfcys rdklek gSA 3- vk;k edku iq[rk eqUntkZ uEcj 2¼d½ vthZnkok ds fuLQ fgLls ij eqnnk;yk uEcj 1 dk xqftrk 25 lky ls dCtk gS] blfy, bl fgLls dh ckcr nkok ukdkfcy isk jQr gSA 4 vk;k edku eqUntkZ en uEcj 2¼d½ vthZnkok ij eqnk;yk uEcj -1 dk dCtk eq[kkfyQkuk f[kykQ mnsiqjh o uFkiqjh vkSykn HkHkwriqjh gS blfy, eqíbZ dks nk;jh nkok dk gd ugha gSA 5- vk;k vgkrk eqUnth uEcj 2¼[k½ vthZnkok iSf=d lEifr gksrs gq, Hkh dsoy N=h o lek/kh ds dke vkrh gS blfy, ukdkfcy rdklek gSA 6- vk;k efUnj rstsoj th egknso okds tksgjh dk jsrk o mlds lkFk ds edkukr nsoLFkku gS vkSj Bkdqj th dh lEifr gS blfy, ukdkfcy rdklek gSA 7- vk;k tehu eqykfotk efUnj eqUntkZ uEcj 2¼?k½ vthZnkok vfr;kjkt gS o Hkksx ds fy, gS blfy, ukdkfcys rdklek gSA 8- vk;k 6 III-II eq- okLrs Hksx feyrs gS blfy, ukdkfcy rdklek gSA 9- vk;k eqíbZ dk dCtk edkukr ij eqík;yk uEcj 1 dh dUlsUV ls gS blfy, dksVZ Qhl ,Mosyksje nsuk pkfg;sA 10- vk;k nhxj vkSykn HkHkwriqjh nkos gktk esa Qjhd t:jh gS] blfy, nkos esa uqDl vne bLrseky Qjhd t:jh [kkfjt gSA 11- vk;k vkjkth eqUntkZ uEcj 2¼?k½ vthZnkok dkLr dh gS] blfy, budk nkok vnkyr gktk ds lekvr ds dkfcy ugha gSA 12- vk;k tk;nkn eqUntkZ en uEcj 2 vthZnkok esa oknh 1@3 fgLlk ikus dk gdnkj gSA 13- vk;k edku eqrftdjk en uEcj 2¼d½ ekfQd vthZnkos ds pkSd eqrdkZ ds mRrjh Hkkx esa izfroknh uEcj 1 us fcyk bLrgdkd rkehjkr djk jgk gS vkSj bldk nkos ij D;k vlj gSA 14- vk;k nkok vUnj fe;kn ugha gSA 15- D;k vkjkth vfr;kjkt LVsV xzk.V tkxhj fjtEiku ,DV ds vUrxZr uksfVfQdsku fnukad 21-6-64 ds }kjk fjt;we gks pqdh gS vkSj ;fn ,slk gS rks bldk okn ij D;k vlj gSA 16- nknjlh (6). Learned first appellate court did not choose to decide all the issues framed by the trial court, but itself formulated new five issues as under:- 1- D;k fooknxzLr lEifRr ekS:lh eqrdkZ gS vkSj dkfcy rdklek gSA 2- D;k nhxj vkSykn HkHkwriqjh okn esa vko;d Qjhd eqdnek gSA 3- D;k U;k;ky; dks okn lquus dk vf/kdkj ugha gSA 4- D;k nkok vUnj fe;kn gSA 5- vuqrks"kA (7). The law imposes upon the court of appeal the imperative duty and obligation of giving an adequate and satisfactory judgment as is required by law and it is the duty of the Court to explain its reasons for so doing. It is incumbent on the first appellate court, which the final court of fact, while reversing decision to meet the reasonings of the trial court and indicate its own reasons for the conclusion. (8). It is well settled that the court can not refuse to decide a point on which an issue has been framed and evidence has been given by the parties. The object of framing issue is to shorten the arena of dispute and pinpoint the points required to be determined by the Court. If the case goes in appeal it must be dealt with by the appellate court on the issue settled by the trial court and not on a point on which there is no issue. In not deciding all the issues settled by the learned trial in two suits, learned first appellate court committed error of law. (9). I am satisfied that instant appeals raise following substantial question of law. ``Whether the learned first appellate court committed error of law in not dealing with all the issues settled by the learned trial court? Although this question was not formulated at the time of admission of instant appeals, the power of this court to hear second appeal on any other substantial question of law, not formulated, is not taken away in view of proviso to sub section 5 of Section 100 CPC, Looking to the fact that most of the issues framed by the learned trial court were left undecided by the learned appellate court, I have not option but to remand the matter to the learned first appellate court for fresh decision on all the issues. (10). For these reasons, I allow the instant appeals and set aside the impugned judgment and decree of the learned first appellate court. (10). For these reasons, I allow the instant appeals and set aside the impugned judgment and decree of the learned first appellate court. I remit the case to learned Additional District Judge No. 6, Jaipur City to decide the appeals bearing Nos. 102/1980 and 103/1980 afresh after dealing with all the issues settled in two suits by learned Additional Civil Judge No.2, Jaipur City. The parties are directed to appear before the learned Additional District Judge No. 6, Jaipur City on December 20, 2005 for seeking further directions. No costs.