Orissa High Court

Swami Yogeswarananda Giri vs Yogada Satasanga Society Of India on 10 August, 2023

            HIGH COURT OF ORISSA : CUTTACK
                     RSA No.360 of 2022 - (A)
                                    &
                      RSA No.12 of 2023 - (B)
In the matter of Appeals under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and decree dated
28.09.2022 and 12.10.2022 respectively passed by the learned
District Judge, Puri in RFA No.335/33 of 1990/2022 confirming the
judgment and decree dated 18.08.1990 and 01.09.1990 respectively
passed by the learned Additional Subordinate Judge, Puri in O.S.
No.23 of 257 of 1989/1982(I).
                                    ---

RSA No.360 of 2022 Swami Yogeswarananda Giri ... Appellant

- Versus -


     Yogada Satasanga Society of India,
     Dakshineswar, Calcutta
     & Others                         ...                   Respondents

     RSA No.12 of 2023
     Swami Prajnanananda Giri                  ...          Appellant

                                - Versus -

     Yogada Satasanga Society of India,
     Dakshineswar, Calcutta & Others ...                    Respondents

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode

For Appellant ... Mr.R.K.Mohanty, Sr. Advocate Mr.Shibashis Mishra, Advocate (In RSA No.360 of 2022) {{ 2 }}

Mr.M.K.Fogla & Mr.G.M.Rath (Advocates) In RSA No.12 of 2023

For Respondents ... Mr.P.K. Rath, Advocate for R.1 in both RSAs

---

CORAM :

MR. JUSTICE D. DASH Date of Judgment:10.08.2023

D.Dash,J. Since both these Appeals as at (A) and (B) under

Section 100 of the Code of Civil Procedure, 1908 (for short, 8the

Code9) arise out of one suit, i.e., O.S. No.23 of 257 of 1989/1982(I) of

the Court of the Additional Subordinate Judge, Puri arise out of

one First Appeal, i.e., RFA No.335/33 of 1990/2022; those were

heard together for their disposal by this common judgment.

The Respondent No.1-Society registered under the Societies

Registration Act, 1860 arraigned in both these Appeals as the

Plaintiff had filed the suit numbered as O.S. No.23/257 of

1989/1982(I) for declaration of title, correction of Record of Right

(ROR), injunction, rendition of account, return of documents and

recovery of possession of the immovable properties as described in

the plaint. In the suit, Swami Hariharananda Giri and Swami

Yogeswarananda Giri had been arraigned as the Defendant Nos.1

and 3 respectively whereas the Municipality of Puri was the

Defendant No.2. Swami Hariharananda Giri died during pendency

of this lis.

The suit came to be decided by the learned Additional Sub-

Judge, Puri (as then was) by judgment and decree dated 18.08.1990

and 01.09.1990 respectively. Swami Yogeswarnanda Giri,

Appellant of the Appeal as at (A) as a disciple of Swami

Hariharananda Giri had been arraigned as Defendant No.1. The

present Appellant of Appeal as at (A) being the aggrieved

Defendant No.1 had carried the Appeal under section 96 of the

Code.

During the pendency of the First Appeal, the Appellant of

Appeal as at (B), though was not a party before the Trial Court,

came to be arraigned as Respondent No.4 for the first time.

2. For the sake of convenience, in order to avoid confusion and

bring in clarity, the parties hereinafter have been referred to, as

they have been arraigned in the Trial Court and the Appellant of

the Appeal as at (B) is hereinafter referred to as the Respondent

No.4, the position so assigned in the First Appeal.

3. The Yogada Satsangha of India, Dakhineswar, registered

under the Societies Registration Act, 1860 having its registered

office at 21 (Twenty One) U.N. Mukherjee Road, Dakshineswar,

P.S.-Bolghoria, Calcutta, Distirct-24 (Twenty Four) Parganas, West

Bengal through its General Secretary filed the suit seeking the

following reliefs:-

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<(i)to declare that the entire property in the schedule belongs to Plaintiff9s Society and the Defendant No.1 has no right, title, interest therein;

(At this stage, it would be apposite to mention that the suit schedule properties comprise of three items as shown in Schedule-A, B and C of the plaint and those are all in Mouza-Balisahi);

(ii) to declare that the recording in the remark column of the R.O.R. of the year 1988 in respect of schedule-A property is wrong and for deletion of the name of Defendant No.1 therefrom;

(iii) to declare that the Defendant No.1 is not entitled to act or to manage Yogada Ashram at Puri in the name of Karar Asharm;

(iv) to perpetually injunct and restrain the Defendant No.1 from interfering with the Plaintiff-Society; and

(v) to direct the Defendant No.1 to render the account for all the money paid and received by him.=

4. The Trial Court, while decreeing the suit in part, declared the

right, title and interest of the Plaintiff9s Society over the suit lands

constituting Yogada Ashram as shown in the schedules of the

plaint followed by declaration that the Defendant No.1 is not

entitled to act or manage the said Yogada Ashram in the name of

Karar Ashram or in any other name.

The Defendant No.1 was also directed to deliver the

possession of the properties described in the Schedules of the

plaint in favour of the Plaintiff-Society.

The Defendants were permanently restrained from

interfering with the administration of said Yogada Ashram and the

possession of the properties and the notes in the remark column of

the R.O.R. of Major Settlement of the year 1988 in respect of the

suit schedule lands was declared to be wrong and accordingly it

was directed to be deleted and in its place it was ordered that the

name of the Plaintiff-Society to be inserted. Lastly, the Defendant

No.1 was directed to return the two lease deeds of the year 1960

and 1966 in relation to immovable property described in schedule-

B and C of the plaint respectively with all other connected

documents to the Plaintiff-Society.

5. The First Appellate Court, being moved by the aggrieved

Defendant No.1, dismissed the said Appeal and thereby confirmed

the judgment and decree passed by the Trial Court.

It would not be out of place to mention here that the

Respondent No.4 who had come to be arraigned as such in the

First Appeal had raised all his contentions.

Therefore, being aggrieved by the dismissal of the First

Appeal, the Defendant No.1 and the Respondent No.4 have filed

the above noted Appeals as at (A) and (B).

6. Plaintiff's Case:-

That in the year 1906, the Defendant No.2 (Puri

Municipality) granted permanent lease of land measuring Ac.0.170

in the name of Priyanath Karar, the premonastic name of Shri

Yokteswar Giri. He constituted Trust on 3rd August, 1921 by a deed

and assigned the leasehold interest to the Trustees with the sole

motive to improve the moral, social and intellectual atmosphere of

Puri Dham. When the Trust was formed, there were five Trustees.

They were Maharaj Manindra Chandra Nandi, Swami Yukteswar

Giri, Sri Atul Chandra Choudhury, Swami Yogananda Giri and

Swami Dhirendra Giri. The Trustees, namely, Manindra Chandra

Nandi died in the year 1930 when Swami Yogananda Giri died in

the year 1952 and Swami Dhirendra Giri was unheard for twenty

years.

The Plaintiff9s further case is that a society called Sadhusabha

was registered under the Societies Registration Act with the object

of taking over the work of the existing Karar Ashram with its

properties as endowed. Swami Yogananda Giri and Swami

Satyananda Giri remained the President and Vice President of the

8Sadhusabha9. As the time passed, Karar Ashram lost its identity as

a distinct, entity and it was identified and known as Yogada

Ashram. It is stated that in the year 1939, the Plaintiff Society

appointed the Defendant No.1 as a Teacher in its Grammar School

at Yogada Ashram, Puri when Swami Sevananda Giri was in

charge of Ashram. It is further stated that before the appointment

in the Ashram, he was known as Rabinarayan Bhatacharya and

with the grace of Paramahansa his identity from Rabinrarayn

Bhattacharya was transformed to Brahmachari Rabinarayan. In the

year 1964, the Defendant No. 1 represented before Swami

Yogananda to assign him some responsible position at Yogada

Ashram, Puri. In the year 1950, Swami Sebananda Giri went away

from Puri and the Society put the Defendant No.1 in charge of

looking after the Yogada Ashram, as an agent. It is alleged that

while the Defendant No.1 was in charge of the Ashram at Puri

under the direction and instruction of the Society, he acted as

Secretary of Yogada Ashram and allowed to propagate the mission

of the Plaintiff-Society. The Plaintiff-Society remitted money from

time to time to the Defendant No.1 to manage the Yogada Ashram,

Puri for its maintenance for conducting its activities such as the

expenses involved in the construction of the Samadhi Mandir, the

Prayer Hall, the Guest Apartment, Boundary Wall as also his

personal expenses. It is stated that the Defendant No.1 in the name

of the Plaintiff-Society received funds by way of donations from

the public on account of Kriya Yoga Dikshya imparting lessions

prescribed by the Plaintiff-Society and through sales of Yogada

Satsang Publications. The Defendant No.1 used to render all

account to the Plaintiff-Society at Dakshineswar in respect of

monies sent to him so also in respect of sum received by him on

behalf of the Society. It is stated that the Defendant No.1 worked as

an agent of the Plaintiff-Society and described himself as the

Secretary of Yogada Ashram, Puri.

The lease-hold land under Plot No.895 estimated to be

around Ac.1.00 dec although had been in possession of Yogada

Ashram, Puri Municipality mutated Ac.0.746 dec of land in favour

of Paramahansa-Swami Yogananda. Although the Plaintiff-Society

had purchased Ac.0.127 dec. of land in the year 1960 yet it

possessed some more lands adjoining the said property as part and

parcel of Yogada Ashram. In the year 1966, Ac.0.34 dec of land was

also leased out by Puri Municipality in favour of the Plaintiff-

Society which got added to the estate of the Yogada Ashram. So it

is said that the Plaintiff-Society is the owner in possession of all

those properties. The Plaintiff9s further case is that in the year 1971

acceding to the request of the Defendant No.1, the Plaintiff-Society

entrusted the documents, such as, the deed of lease etc. to the

Defendant No.1 on good faith for their production before the

Settlement Authorities. It is stated that the Defendant No.1

thereafter did not return the documents. In the year 1972, the

Defendant No.1 refused to render the accounts and for avoiding

the same, he resorted to frivolous grounds. The fact, however,

remains that he went on misrepresenting the Public that he was

the President of Karar Ashram. On the basis of such

misrepresentation, the Defendant No.1 is said to have got the

leases transferred in his favour by substituting the name of the

original lessee and thereafter refused to receive any financial aid

from the Plaintiff-Society. In the year 1974, the Defendant No.1

refused to render accounts of the Ashram to the Plaintiff-Society.

The Plaintiff-Society, therefore, raised eyebrows on such conduct

of the Defendant No.1. It could then be ascertained that the

Defendant No.1 by producing a Will purported to have been

executed by Satyanandajee on 25.03.1971 and a deed of Trust by

the same executant in his favour and thereby misrepresenting him

as the President of Karar Ashram before the Municipality, had got

the properties mutated in his name. It is alleged that such

recordings of the suit land in favour of the Defendant No.1 is the

outcome of collusion between the Defendant No.1 and the

Defendant No.2 (Puri Municipality). It was revealed that the

Defendant No.1 had transferred a portion of the suit property in

favour of the Defendant No.3 without obtaining permission from

the Plaintiff-Society. The Defendant No.1, therefore, was served

with the notice on 14.04.1975 and asked to render all accounts. He,

however, refused to receive the said notice. The Plaintiff thereafter

filed Title Suit No.103 of 1975 in the Court of the Sub-Judge,

Alipore, Calcutta (as then was) against the Defendant No.1

claiming the same relief for declaration, injunction and rendition of

accounts. The Defendant No.1 appeared in the said suit and the

Court thereafter held to have no territorial jurisdiction to sit over

and adjudicate the suit filed by the Plaintiff-Society. This was

challenged by the Plaintiff-Society by carrying a Civil Revision to

the High Court, Calcutta. When the Revision was pending, this

present suit was filed and thereafter the Revision being not

pressed, was dismissed.

7. Case of Defendant No.1

The Defendant No.1 in his written statement while

traversing the plaint averments have raised the issue of

maintainability of the suit. It is said that the primary beneficiary

under the deed of trust and the recorded owner of the suit

property being not made parties to the suit, the suit is bad for non-

joinder of necessary parties. It is further stated that the description

of the address in the cause title of the Defendant Nos.1 and 3 at

Yogada Ashram, Puri is wrong. It is stated that the Defendant

No.1, the Karar Ashram, Puri was established by 8Sadhumandal

whose founder was Sri Youkteswar Giri. The said Ashram was

managed by Sri Sevananda till 1950 when he left the Ashram and

became a Sanyasi. The Trustees mentioned in the deed of trust of

the year 1921 except Swami Yogananda could not manage the

Ashram. In the year 1936, Sami Yogananda left India and went to

America where he breathed his last in the year 1951. While leaving

India, he appointed Swami Satyananda as a Trustee to manage

Karar Ashram. He, however, failed to manage the Karar Ashram

as he was required in the Ashram at Ranchi when Dhirendranath

Das in charge of Ranchi Ashram left for America in the year 1928.

In the year 1938, when Swami Sevananda was in charge of the

Karar Ashram, the Defendant No.1 started practising Kriay Yoga

at Puri Ashram and subsequently, became the President of Karar

Ashram after death of Swami Satyananda. He continued to

manage the Karar Ashram as the President. Swami Satyananda

executed a Will in favour of the Defendant No.1 to manage the

properties of Karar Ashram and he accordingly got lease of the

schedule3A property to the extent of Ac.0.576 dec from Defendant

No.2 with the possession of the Schedule-A land being given to

Defendant No.1. The Defendant No.2 granted further lease in the

name of Karar Ashram for the said extent of area Ac.0.38 dec.

adjoining schedule 3B land. The Defendant No.1 obtained the lease

of the said area as the Secretary of the Plaintiff-Society by spending

money from his pocket with the expectation that the same would

be reimbursed by the Plaintiff9s Society.

The Defendant No.1 has clearly stated to have no objection in

respect of schedule-B and C property as those properties are of the

Plaintiff9s Society. He states to have never been engaged for the

Plaintiff-Society at any time to manage the Ashram. It is stated that

the deed of Trust of the year 1921 envisaged Karar Ashram only to

carry out the religious works of 8Sadhu Sabha9 and there was no

occasion and necessity for changing the identity of Karar Ashram

to Yogada Ashram. The Defendant No.1 has also denied to have

been receiving the grants and donations from the Plaintiff-Society

for meeting his personal expenses and for carrying out all other

activities including construction work over Schedule-A land. He

further states to have never acted as agent of Plaintiff-Society and,

therefore, he denies to have obligation to furnish the accounts to

the Plaintiff-Society regularly. It is stated that there was no Yogada

Ashram at Puri but some of its activities were carried out by the

Defendant No.1 at Karar Ashram on the request of Plaintiff-Society

for which the Plaintiff-Society advanced money for meeting some

of the expenses of the inmates of Karar Ashram, who were

working for Yogada Ashram. The Defendant No.1 has projected an

alternative case as to acquisition of title over the suit property by

adverse possession.

8. Case of Defendant No.2 The Defendant No.2 while traversing the plaint averments

has stated that on the application of the Defendant No.1 and on

production of Will executed by Swami Satyananda in favour of

Defendant No.1, land measuring Ac.0.38 dec. as shown in

schedule-B of the plaint was leased out to him as the Secretary of

Yogada Satsangha Society. The allegation of collusion with the

Defendant No.1 has been denied and it is also stated that due

permission had been given by the Defendant No.1 to transfer a

part of the suit land in favour of the Defendant No.3.

9. The Trial Court, on the above rival pleadings, framed the

following issues:-

<1) Is the suit maintainable?

2) Has the plaintiff any cause of action to fill the suit?

3) Is the suit defective for non-joinder of parties?

4) Has the plaintiff any interest and possessions over the suit properties?

5) Is the suit defective for non-compliance of section 349 of Orissa Municipal Act?

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6) Is the sale deed executed by defendant no.1 in favour of defendant no.3 genuine and valid?

      7)    Is the suit barred by limitation?
      8)    Has the suit been property valued and the adequate
      court-fee been paid?
      9)    To what relief, if any the plaintiff is entitled?

10) Has the plaintiff title to the lands in schedule 8A9 and to Ac.0.030 of land containing in schedule 8B9 of the plaint?

11) Is the plaintiff entitled to declaration containing in para 26(b) of the plaint?

12) Is the plaintiff entitled to the mandatory injunction asked for?

13) Is the plaintiff entitled to the mandatory injunction asked for?

14) Is the suit bad for mis-joinder of causes of action?

15) Has defendant no.1 acquired title, over 8A9 scheduled lands and Ac.0.038 of land under schedule 8B9 of the plaint by way of adverse possession?=

10. Taking up Issue Nos.4 and 10 for decision together, the Trial

Court has answered those in favour of the Plaintiff.

Next going to render the decision on Issue No.7, the finding

of the Trial Court is that the prayer for rendition of account is

barred by limitation.

Then Issue No.14 has been answered in the negative and

Issue No.11, as a sequel to the answer on Issue Nos.4 and 10, has

been answered by the Trial Court holding that the Defendant No.1

has no right to manage the suit property when the right of the

Plaintiff-Society over the same has been declared.

The Issue No.3 has been answered in favour of the Plaintiff

holding that the suit is not defective for non-joinder necessary

parties.

In respect of Issue No.12 as to the prayer of the Plaintiff for

issuing a decree for mandatory injunction, the answer has been in

favour of the Plaintiff and then Issue No.6 has been answered

holding the sale deed (Ext.29) as not valid and genuine. The Trial

Court thereafter proceeding to answer Issue No.15, the claim of the

Defendant No.1 has been negated and thereafter the Issue No.16

has been answered in favour of the Plaintiff. Lastly, coming to

Issue No.1, the conclusion of the Trial Court is that the suit is

maintainable.

11. The First Appellate Court, as it appears from Paragraph-8 of

its judgment, has gone to address the rival submission touching

upon the sustainability of the finding of the Trial Court as to

whether Karar Ashram and Yogada Ashram are two separate

institutions or both are one and the same. It appears that while

proceeding in that direction, the First Appellate Court has noted

that the evidence on record would indicate that the Defendant

No.1 was acting as an agent of the Plaintiff-Society and there was

no religious or charitable institution in the name of Karar Ashram

to which Defendant No.1 asserts to represent.

The First Appellate Court, in delving upon the contention

raised by the Respondent No.4 as regards the admission of

Defendant No.1, has arrived at the conclusion that the Defendnt

No.1, in his letter addressed to President, Yogada Satsang Society

has admitted to have purchased the property in his name but for

the Society and in order to give a surprise the Secretary of the

Ashram. Then on the other question as to the Plaintiff9s claim of

declaration and possession of Schedule-A property and portion of

Schedule-B property, the view of the First Appellate court is that

the suit is not coming within the purview of section 92 of the Code

and, therefore, the suit seeking reliefs, as advanced, is

maintainable. Next dealing the question of maintainability of the

suit for non-compliance of the provision contained in section 6 of

the Societies Registration Act, 1860, the answer has been given in

favour of the Plaintiff. On the issue as to the previous suit filed in

the Court at Alipur, Calcutta standing on the way of in the present

suit, in view of the provisions contained in section 12 read with

Order 2 Rule 2 of the Code, has been that the suit has been found

to be entertainable in the present form and for the reliefs claimed.

The other issue as to the limitation and final decision, having been

rendered in the negative, the judgment and decree passed by the

Trial Court have been confirmed.

12. These Appeals have been admitted to answer the substantial

questions, which are consolidatedly placed below:-

<(1) Whether the Plaintiff9s suit is maintainable in view of the bar contained under Section 12 read with Order 2

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Rule 2 of the Code of Civil Procedure for filing of the earlier suit in Kolkata?

(2) Whether the Plaintiff9s suit is maintainable for non- compliance of the provision contained in Section 92 of the Code of Civil Procedure as the suit framed is not merely against an agent as alleged but to obtain a decree for the purpose prescribed in the said provision?=

(3) Whether the Courts below have erred in law in holding that the Respondent No.1(Plaintiff) has the right, title and interest over the suit lands and by accepting the case of the Respondent No.1 (Plaintiff) that the Respondent No.4 (Defendant No.1) has been possessing the suit properties on behalf of the Respondent No.1- Plaintiff Society, who is its owner?=

13. Heard learned counsel for the parties at length.

14. In order to address the rival submission, in finding out the

answers to the substantial questions of law, as noted above, a

careful reading of the judgments passed by the Courts below, it

would reveal that the provision contained in Order 41 Rule 31 of

the Code, which has been held to be mandatory, has been totally

lost sight of. In that view of the matter, before proceeding further,

this Court feel it apposite to delve into the above aspect of non-

compliance of the provisions of law.

15. For the purpose, as above, it would be profitable to refer to

the decision of the Hon9ble Apex Court in the case of Malluru

Mallappa (Dead) through LRs -V- Kuruvathappa and others;

(2020) 4 SCC 313.

At Paragraph-11 of the aforesaid judgment, the Hon9ble

Apex Court has said as under:-

<Section 96 of the CPC provides for filing of an appeal from the decree passed by any court exercising original jurisdiction to the court authorized to hear the appeals from the decisions of such courts. In the instant case, the appeal from the decree passed by the trial court lies to the High Court. The expression 8appeal9 has not been defined in the CPC. Black9s Law Dictionary (7th Edn.) defines an appeal as <a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority.= It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors.=

The Apex Court then, having referred to the decision in the

case of In Hari Shankar v. Rao Girdhari Lal Chowdhury; AIR 1963

SC 698, reiterated the same in holding that a right of appeal carries

with it a right of re-hearing on law as well as on fact unless the

statue conferring the right of Appeal limits the reheating in some

way as has been done in Second Appeal under the CPC.

In next paragraph, i.e., paragraph-12, the Apex Court has

placed the view taken by the said Court in Shankar Ramchandra

Abhyanakar 3V- Krishnaji Dattatreye= (1969) 2 SCC 74, which reads

as under:-

<5. ........... In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause

{{ 18 }}

already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may AIR 1963 SC 698 1969 (2) SCC 74 choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial.......=

16. It has been held by the Apex Court in the very same decision

in case of Malluru Mullappa (Dead) through LRs (Supra) as

under:-

<It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others v. Sangram and Others4, B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and Another5, H. K. N. Swami v. Irshad Basith (Dead) By Lrs.6 and M/s. Sri Raja Lakshmi Dyeing Works v.

Rangaswamy Chettiar7]. (2001) 3 SCC 179 (2001) 4 SCC 756 (2011) 15 SCC 476 (2005) 10 SCC 243 (1980) 4 SCC 259

It has also been said that a First Appeal under Section 96 of the

CPC is entirely different from a second appeal under Section

100. Section 100 expressly bars second appeal unless a question of

law is involved in a case and the question of law so involved is

substantial in nature.

17. Order XLI Rule 31 of the CPC provides the guidelines for the

appellate court to decide the matter. For ready reference Order XLI

Rule 31 of the CPC is as under: -

<31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state4

(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 it is pronounced be signed and dated by the Judge or by the Judges concurring therein.=

18. In Vinod Kumar v. Gangadhar; (2015) 1 SCC 391, the Apex

Court has reiterated the principles to be borne in mind while

disposing of a first appeal, as under:-

<15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court

{{ 20 }}

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 : (2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.)=

19. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr.9, it was held as under:-

{{ 21 }}

<21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law.=

20. Bearing in mind the above principles, the judgment of the

First Appellate Court, being gone through, it is seen that the First

Appeal involved disputed questions of law and fact. The judgment

of the First Appellate Court clearly reveal that the provisions of

Oder 41 Rule 3 of the Code while deciding the Appeal have totally

been lost sight of and the decision that has ultimately been

rendered has not been by specifically answering the points for

determination both with reference to the factual settings of the case

as those emerge from the evidence both oral and documentary

dealing those with the settled position of law holding the field.

21. For the aforesaid, instead of proceeding to answer the

substantial questions of law framed at the time of admission of