JUDGMENT : D.DASH, J. 1. This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Addl. District Judge, Balasore in Title Appeal No. 21/40 of 2002-2001 confirming the judgment and decree passed by the learned Addl. Civil Judge (Sr.Divn.), Balasore in T.S. No. 330 of 1993. The appellant as the plaintiff had filed the suit for settlement of account and alternatively for recovery of the amount from the defendants, if so found as the legal dues of the plaintiff payable by the defendant. The suit having been decreed, he had carried an appeal under Section 96 of the Code of Civil Procedure. The same has also been dismissed. Therefore, the move is before this Court by filing the second appeal under Section 100 of the Code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that one Radhamadhab Das had obtained a lease of the quarry from the defendants for a period of five years with effect from 1986-87. After three years, on 24.12.88 Radhamadhab sought for transfer of the operation of the quarry to the plaintiff on the ground of his illness and inability to operate the same. The plaintiff consented to it that he would be operating the quarry according to terms and conditions of OMMC, Rules 1983. He deposited the lease value for the year 1959-90 and 1990-91. Prior to the expiry of the lease by 31.3.91, the plaintiff made a request for renewal of the quarry for a long term from 1991-92 to 1995-96. He also submitted the required Form No. ‘B’ and the treasury challan as per the rules along with the sketch map. Those having been received, the plaintiff’s prayer for renewal of the lease for long term was allowed and accordingly, it was renewed in Lease Case No. 14 of 1986-87 in favour of the plaintiff for extraction of 6000 metric stone materials annually and to deposit the lease value for the said period. After that work order is said to have been issued to the plaintiff for removal of stone materials outside the quarry area for sale to the Govt. and other private individual. After that work order is said to have been issued to the plaintiff for removal of stone materials outside the quarry area for sale to the Govt. and other private individual. The plaintiff for the purpose deposited a sum of Rs.1000/-in shape of NSC as security deposit. However, it is said that the plaintiff could not operate the quarry for full term because of the rainy season and agitation of the in habitants of the villages situated near the quarry area on the ground of environment pollution. In the meantime OMM Rules, 1983 stood repealed with effect from 29.8.1990 and the royalty as it was at Rs.2/-per ton was enhanced to Rs.25/-per cubit meter. Accordingly, notice was issued to the plaintiff raising a demand of Rs.1,03,003/-towards royalty, surface rent and dead rent etc. till the end of March, 1991. The plaintiff was further asked to deposit the aforesaid amount by 18.6.91. It is said that the said demand made by the defendants is illegal and without authority. The plaintiff had clearly expressed his inability to pay the aforesaid amount and to execute another fresh lease deed. The plaintiff admits to have paid a sum of Rs.5,000/-towards arrear on 31.3.98 and to have deposited annual lease value till 15.2.92. The demand according to the plaintiff being illegal, the suit came to be filed by him. The defendants contested the suit by filing written statement that the plaintiff had been granted lease of the quarry for a period of five years from 1991-92 to 1995-96 for extraction of 6000 metric ton of stone materials. It is stated that the plaintiff deposited the lease value from 1991-92 and accordingly work order was issued in his favour. He has also given the NSC of Rs.1000/-towards security deposit which have been placed in favaour of defendant no.1. It is further stated that the plaintiff’s application for exemption of payment of registration fees over the lease value having been duly considered, he deposited the lease value for another year i.e. 1992-93 as assessed. The defendants enhanced the rate of royalty, dead rent and surface rent with effect from 29.8.90 in the year 1990-91 at the rate of Rs.25/-per square meter instead of Rs.2/-towards royalty and Rs.2/-towards cess per metric ton. The plaintiff asserts that the enhanced royalty is not payable. The defendants enhanced the rate of royalty, dead rent and surface rent with effect from 29.8.90 in the year 1990-91 at the rate of Rs.25/-per square meter instead of Rs.2/-towards royalty and Rs.2/-towards cess per metric ton. The plaintiff asserts that the enhanced royalty is not payable. Now it is said that on proper calculation with effect from 29.8.90, the plaintiff’s liability has been computed at Rs.1,02,714/-till 31.3.91. It is stated that the plaintiff informed the defendants in writing about the obstruction caused by the villagers but still he was served with the demand notice to pay the differential lease value to the tune of Rs.1,02,714/-till 31.3.91 for non-payment of the same. The certificate proceeding has been initiated which has been numbered as Certificate Case No. 271 of 1993. So it is stated that the suit is not maintainable. 4. The trial court framing as many as seven issues first of all has gone to decide the claim of the plaintiff as regards the settlement of account. Upon analysis of evidence on record, it has held the plaintiff liable to pay the differential amount as per the calculation sheet Ext.B and thereafter rendering further findings on other issues, has dismissed the suit. The lower appellate court having been moved as it appears from the judgment proceeding in a different way to decide the maintainability of the suit in view of the pendency of the certificate proceeding, has finally held that the suit to be not maintainable, as the plaintiff has failed to agitate the grievance before the certificate officer. It has also been held that the plaintiff having efficacious remedy available under the provisions of OPDR Act, the suit as laid is not maintainable. So saying it has put a full stop there and has not further gone to judge the sustainability of the finding of the trial court on merit of the case holding the plaintiff’s liability to pay the amount as indicated Ext.B to the defendants. 5. Learned counsel for the appellant while submitting that such finding as regards the non-maintainability of the suit as rendered by the lower appellate court which had not been decided by the trial court is legally unsustainable, further contends that provisions of OPDR Act do not bar such a suit. 5. Learned counsel for the appellant while submitting that such finding as regards the non-maintainability of the suit as rendered by the lower appellate court which had not been decided by the trial court is legally unsustainable, further contends that provisions of OPDR Act do not bar such a suit. He next contends that even if the lower appellate court in the first appeal gave the finding on the question of maintainability of the suit, it was incumbent upon him to examine the sustainability of the finding of the trial court on issue nos. 5 and 6. So alternatively, it is submitted that the appeal for that reason is to be remitted to the lower appellate court for disposal afresh in accordance with law directing the lower appellate court also to examine and record necessary finding on the sustainability of the finding of the trial court on issue nos. 5 and 6 taken together for decision as well as on the question of maintainability. 6. The following substantial question of law arises in this case:-“Whether the first appellate court which disposing the appeal which is a continuation of the suit was under the legal obligation also to decide the sustainability of the findings of the trial court on issue nos. 5 and 6 touching the merit of the competing claim of the parties and if so is it a fit case for remand of the appeal to the first appellate court for its disposal afresh in accordance with law?” 7. Learned counsel for the State has not been able to disagree on the point that the lower appellate court has not recorded any finding of its own so far as the decision rendered by the trial court on issue nos. 5 and 6 which had been taken together for discussion. This Court on perusal of the judgment of the lower appellate court finds the above as the deficiency therein. 8. In view of the aforesaid, the substantial question of law stands answered in favour of the appellant, and the judgment and decree passed in the first appeal are unsustainable. Thus now it stands as a fit case for being remitted to the lower appellate court to record its finding on the sustainability of the decision of the trial court on issue nos. Thus now it stands as a fit case for being remitted to the lower appellate court to record its finding on the sustainability of the decision of the trial court on issue nos. 5 and 6 upon assessment of evidence as also keeping in view the relevant provisions of law holding the field side by side recording the finding as regards the maintainability of the suit and to dispose of the said appeal on merit in accordance with law. 9. In the result, the appeal stands allowed. The appeal is remitted to the court of District Judge, Balasore for its disposal afresh as above and in accordance with law. It is however made clear that the above discussion and expressions have absolutely no such bearing on the merit of the case which the lower appellate court is now called upon to decide. There shall be however no order as to cost.