RSA/74/2019 on 3 August 2026

1. Whether the plaintiff is entitled for permanent prohibitory injunction as prayed for? OPP

2. Whether the plaintiff is also entitled for mandatory injunction, as prayed for? OPP

3. Whether the suit is not maintainable in the present form? OPD.

4. Whether the plaintiff has no enforceable cause of action to file the present suit? OPD.

5. Whether the plaintiff has no locus-standi to file the present suit? OPD

6. Whether the suit of the plaintiff is bad for non-joinder and misjoinder of the necessary parties? OPD

7. Whether the plaintiff is estopped by his own act, deed and conduct to file the present suit? OPD.

8. Whether the plaintiff has suppressed material facts and has not come to the court with clean hands? OPD

9. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD.

10. Relief.

10. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 19.01.2017, dismissed the suit as filed by the plaintiff/respondent.

11. Feeling dissatisfied, the plaintiff/respondent preferred an appeal under Section 96 of the CPC in the Court of the learned District Judge, Mandi, on 23.09.2017. The learned first appellate Court, vide its impugned judgment and decree dated 19.12.2018, accepted the appeal and set aside the judgment passed by the learned trial Court. The learned first appellate Court decreed the suit by passing decree of permanent prohibitory injunction in favour of the plaintiff/respondent and against the appellant/defendant.

12. Feeling aggrieved, the defendant has filed the instant regular second appeal by invoking the provisions of Section 100 of the CPC.

13. It is contended by Mr. Devender K. Sharma, learned counsel for the appellant, that the impugned judgment and decree passed by the learned first appellate Court is erroneous and liable to be quashed and set aside. He submits that learned first appellate Court, while reversing the findings recorded by the learned trial Court, did not adhere to the provisions of Order 41 Rule 31 of the CPC. He further submits that after accepting the present appeal, the suit filed by the plaintiff/respondent deserves to be dismissed.

14. On the other hand, Mr. Manjeet Singh, learned vice counsel for the respondent, has defended the impugned judgment passed by learned first appellate Court. He submits that the judgment passed by the learned first appellate Court is legal, valid, and sustainable and no interference in the same is required.

15. This Court admitted the appeal on 05.03.2019 on the following substantial question of law:

1. Whether the learned first appellate court below misconstrued and mis-appreciated the facts and evidence of case and committed error of law in passing the impugned judgment and decree?

2. Whether the first appellate court committed error of law by ignoring the compromise decree passed between the parties to the suit by learned civil court on the ground that the same has not been incorporated in jamabandi and further committed error of law in misconstruing the compromise decree on record?

16. With the consent of the learned counsel for the parties, an additional substantial question of law is framed in the following manner:

3: Whether the learned first appellate court failed to adhere to the provisions of Order 41 Rule 31 of the CPC, whereby the first appellate court did not determine or adjudicate the points determined by the learned trial court, as a result of which great prejudice has been caused to the present appellant/defendant?

17. I have heard learned counsel for the parties and have perused the case file carefully.

18. The learned counsel for the appellant has drawn the attention of this Court to the findings recorded by the learned trial Court which read as follow: “12. Moreover, the case of the plaintiff is that defendant broke the lock of both the rooms and forcibly removed the agriculture and other articles from the suit property placed by him. PW-1 in his examination-in-chief by way of affidavit Ext. PW1/A stated that he is in possession of two rooms out of four rooms which is used by him as store to keep agriculture articles and other house hold materials. During his cross-examination he has stated that defendant has thrown his all articles out of two rooms occupied by him and locked the same by putting lock and did not allow him to excess the same. His agriculture articles was kept in the same. No body has seen the defendant throwing his articles out of the two rooms and when he reached at the spot his articles were kept outside the house and same is lying presently outside the two rooms. He admitted that photographs Ext. DB and DC are clearly showing the whole of the house and its surrounding areas. The same does not shows his articles. This version of plaintiff clearly shows that the case set up by him holds no truth. Defendant during her cross examination has denied that she has broke the lock

put by the plaintiff on 17.2.2013 of two old rooms of house and thrown the articles. Therefore, the plaintiff fails to prove his case. Accordingly, issue No. 1 is decided against the plaintiff.

19. Mr. Devender K. Sharma, learned counsel for the appellant, has vehemently argued that the learned trial Court, after perusing and appreciating the evidence placed on record, came to the conclusion that the plaintiff was unable to prove the alleged interference and consequently, the case set up by the plaintiff was rejected in the absence of pleadings and proof. He further submits that the findings recorded by the learned trial Court, especially on issue No.1, were not touched or adjudicated upon by learned first appellate Court while accepting the appeal. He has drawn the attention of this Court to the findings wherein the learned first appellate Court primarily gave findings on the compromise which was effected between the parties.

20. Learned counsel for the appellant further submits that perusal of the judgment nowhere suggests that the interference as alleged by the plaintiff has been decided by learned first appellate Court. The learned counsel for the appellant has vehemently argued that learned first appellate Court, while reversing the findings of the learned trial Court, ought to have adhered to the provisions of Order 41 Rule 31 of the CPC, which reads as follows: “31. Contents, date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

21. The Hon'ble Apex Court, while discussing the scope of interference by the first appellate Court under Order 41 Rule 31 of the CPC in the case titled C. Venkata Swamy versus H.N. Shivanna (dead) by legal representatives and another (2018) 1 SCC 604, observed as follows: “10. The need to remand the case to the High Court has occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the Code.

11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code 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 the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.

12. Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.

13. As far back in 1969, the learned Judge V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the Code in Kurian Chacko vs. Varkey Ouseph, 1969 AIR(Ker) 316, reminded the first Appellate Court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 1-3). “1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. 3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation..…".

(emphasis supplied)

14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal. We consider it apposite to refer to some of the decisions.

15. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179,this Court held as under ( SCC pp. Pages 188-189 para 15: "15....the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the 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 assign 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 …."

16. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756, wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

17. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court stated as under: (SCC p.244, para 3)

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

18. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court observed as follows ( SCC p. 303, para 2): "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion …"

19. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp.530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."

22. In view of the law laid down by the Hon’ble Apex Court, this Court is in agreement with the submission of the learned counsel for the appellant, as prima facie learned first appellate Court erred in not touching upon the points determined by the learned trial Court and by upsetting those findings in the absence of any determination, certainly the rights of the present appellant have been affected.

23. The provisions of Order 41 Rule 31, as envisaged under the Code of Civil Procedure, are mandatory in nature and learned first appellate Court, while reversing the findings of the learned trial Court, ought to have touched upon those points decided by the learned trial Court.

25. Consequently, this Court has no other option but to quash and set aside the judgment and decree passed by the learned first appellate Court and to relegate the parties back to learned first appellate Court with a further direction that the appeal shall be decided afresh after hearing the respective parties and their counsel to take the matter to its logical end. The learned counsel for the parties undertake to appear before learned first appellate court on 24.08.2026.

26. Needless to say, the first appellate court shall not issue fresh notice for the service of the respondent and after the appearance of the parties, learned first appellate Court shall take the matter to its logical end.

27. In view of findings returned on additional substantial question No.3, no findings are required to be given on substantial questions No.1 and

2.

28. Consequently, the present appeal is disposed of along with pending applications, if any.

(Romesh Verma)

Judge August 03, 2026

(vt)