Shri Hondu alias Navnath Yeshwant Naik vs Shri Udesh Naik

N. A. Britto, J.—Heard. This is plaintiff''s second appeal arising from R.C.S. No.6/1996. The dispute between both the parties is to the property surveyed under nos.31/2, 32/2 and 33/1 of Village Coranguinim in Sanguem Taluka.

There is no dispute that the said property was given to Yeshwant Hondu Naik by the Government by Alvara dated 1-4-1942. The plaintiff claimed the said property being his son through Jaiu. The defendant claimed the same being his son through Sarasvati.

The suit was filed by the plaintiff for injunction. The defendant filed a counterclaim and also sought injunction against the plaintiff. The plaintiff''s suit as well as the counterclaim of the defendant came to be dismissed by the learned trial Court. The defendant filed an appeal and the plaintiff filed cross-objections.

At the hearing of this appeal, two submissions have been made by Shri P. S. Rao, the learned Counsel appearing on behalf of the Plaintiff.

Learned Counsel submits that the learned first appellate Court has not at all considered the cross-objections filed by the plaintiff and in any event the learned Counsel submits that the impugned Judgment does not at all show that the learned first appellate Court was alive to the situation that there were cross-objections filed by the plaintiff. Shri V. A. Lawande, the learned Counsel appearing on behalf of the defendant submits that all the submissions made by the plaintiff have been considered by the learned first appellate Court and in any event, learned Counsel submits relying on the case of The Assistant Commissioner and Land Acquisition Officer, Gulbarga v. Chandrashekar s/o Shivalingappa Balgundgi AIR 1996 Kar 110 that cross-objections could be even decided after the disposal of the appeal on merits. Joining issue, Shri Rao, the learned Counsel has placed reliance on a decision in the case of Hari Shankar Rastogi Vs. Sham Manohar and Others, wherein the Apex Court has held that cross-objections are like an appeal and even in a case where an appeal is withdrawn or is dismissed for default, cross-objections may nevertheless be heard and determined.

Secondly, Shri Rao has also submitted that the learned first appellate Court whilst reversing the findings of the trial Court ought to have assigned reasons as to why it was not agreeing with the findings of the trial Court and in this regard learned Counsel has particularly referred to a Judgment between the parties in R.C.S. No.84/96/A which was filed by the defendant for declaration and injunction and which was dismissed. In this context, Shri Rao has placed reliance on a decision of the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., wherein the Apex Court has observed that the Judgment of the trial Court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising from the contentions put forth, and pressed by the parties for decision of the appellate Court. The Apex Court has further observed that while writing a Judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the Judgment, and, secondly, 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, for this would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. Shri Lawande, learned Counsel has also placed reliance on a Judgment of the Apex Court in the case of Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another, wherein the Apex Court has observed that a second appeal is not permissible on the ground that the first appellate Court had not come to the grips with the reasoning of the trial Court.

In my view, the submissions made by Shri Rao, the learned Counsel on behalf of the plaintiff are well founded. The learned first appellate Court does not at all appear to have been alive to the fact that there were cross-objections filed by the plaintiff. A perusal of the Judgment in the first appellate Court does not show whether the said objections have been considered, dismissed or withdrawn or whatever. Secondly, the first appellate Court also does not appear to have even looked into the effect of the said civil suit which was referred to by the trial Court, filed by the defendants which was dismissed. As stated by the Apex Court, the first appellate Court does not appear at all to have come to close quarters with the reasoning assigned by trial Court at all, as observed by the Apex Court in Santosh Hazari v. Purushottam Tiwari(supra). The case of Arumugham(dead) by L.Rs. and others v. Sundarambal and another(supra) is clearly not applicable to the controversy involved herein. The learned first appellate Court in para 10 has observed that the plaintiff could not prove his possession, when admittedly, a part of the suit property with house was in his possession.

Considering the above, in my view, the Judgment of the learned first appellate Court deserves to be set aside and the case remanded to the first appellate Court to decide afresh the appeal and the cross-objections filed, in accordance with law as laid down by the Apex Court in the case of Santosh Hazari v. Purushottam Tiwari(supra). Needless to observe, the first appellate Court will decide the appeal and the cross-objections afresh without being influenced in any way by any observations made herein. Parties to appear before the learned first appellate Court on 11th June, 2010 at 10.00 a.m.