Balwant Singh and Others Vs Ramesh Chand (Deceased through LRs Renu and Others)

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 212 of 2024 Date of Decision: 13.07.2026 ____________________________________________________ Balwant Singh & others ...Appellants. Versus Ramesh Chand (deceased) through LRs & others ...Respondents.

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Coram

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Hon'ble Mr. Justice Romesh Verma, Judge.

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Whether approved for reporting?¹

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For the appellants : Mr. P.S.Goverdhan, Senior Advocate with Mr. Rakesh Thakur and Ms. Priti Steta, Advocates. For the respondents : Mr. Vipin Pandit, Advocate, for respondents No. 1(i) to 1(iii), 2,3,4 (i), 4(ii), 5(a), 5(b) and 6. Mr. Ajay Sipahiya, Advocate, for respondent No. 7. Mr. Amit Jamwal, Advocate, for respondent No.18.

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__________________________________________________ Romesh Verma, Judge(oral)

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The present regular second appeal arises out of the judgment and decree dated 16.08.2023, as passed by learned Additional District Judge-I, Solan, District Solan, H.P., whereby the appeal filed by the plaintiffs/appellants was dismissed and

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judgment and decree as passed by learned Civil Judge (Sr.

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Division), Solan, District Solan, H.P. dated 01.03.2014 was

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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affirmed, whereby suit instituted by the plaintiffs for declaration and for injunction came to be dismissed.

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The facts as emerge in the present case are that the plaintiffs filed a suit on the ground that the land measuring 12.9 bighas bearing Khasra No. 240 and land measuring 43.12 bighas total land measuring 56.1 bighas is owned and possessed by the plaintiffs and proforma defendant No.19 to the extent of 3/4 share. That suit land was owned and possessed by S/Sh. Palak Ram, Paras Ram, Shunku, Ved Parakash and Ishwar Singh jointly.

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It is the case of the plaintiffs that after the demise of Sh. Paras Ram his estate was succeeded by Sh. Anokhi Ram, Shri Suba, Smt. Malti and Smt. Devkoo. Sh. Anokhi Ram also died and the proforma defendants No.7 to14 are his successorsin-interest. Sh. Suba has also died and is succeeded by proforma defendant Nos.17 and 18. Shri Jaswinder Singh proforma defendant No.15 has succeeded Smt. Malti whereas Smt. Devkoo has been succeeded by proforma defendant No.16 Sh. Bal Krishan. The defendants No.1 to 6 are stranger to the plaintiffs. The defendants No.1 to 6 or their predecessors,

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namely, Sh. Chaunku was never inducted tenant by the plaintiffs and proforma defendants at any point of time.

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As per the plaintiffs, in the year 1956-57, the predecessor of the defendants No.1 to 6 have wrongly and illegally and in collusion with the revenue officials got the revenue entries incorporated in his favour showing to be the tenant in possession of the suit land behind the back of the plaintiffs and their predecessors. No proceedings for change of revenue entries were initiated. No order was ever passed and the alleged entries were incorporated without any notice and information to the plaintiff's predecessors and the entries were thus changed behind their back. Such entries are wrong, illegal, wrong, without jurisdiction fabricated, result of manipulation and are not binding upon the rights of the plaintiffs. The mutation No.188 dated 14.5.1976 sanctioned by the Assistant Collector 2^nd grade is without jurisdiction, wrong, null and void and is not binding upon the plaintiffs. While sanctioning the alleged mutation, no notice or information was given to the plaintiffs or their predecessors.

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The plaintiffs and their predecessors came to know about the wrong entries in the year 1987 upon which they

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collected revenue record and filed Civil Suit No. 28/1 of 88 in the Court of Ld. Senior Sub Judge, Solan and on 4.12.1991 the ld. Sub Judge, Solan had returned the plaint to the plaintiffs by holding that the Land Reforms Officer has jurisdiction to entertain and decide the matter. Thereafter, the plaintiffs approached the Land Reforms Officer on 31.12.1991, however, the Land Reforms Officer dismissed the suit of the plaintiffs by holding that the Civil Court has jurisdiction and the judgment and decree which may be passed by the Civil Court would be binding upon the parties since there is a serious title dispute between the parties. After passing of the impugned order, the defendants No.1 to 6 started threatening the plaintiffs to dispossess them from the suit land forcibly and illegally. Consequently, suit was filed for declaration and injunction.

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The said suit came to be resisted by the defendants by raising preliminary objections with respect to the maintainability, cause of action, non joinder etc. All the averments as made have specifically been denied and refuted in its totality. The defendants prayed for dismissal of the suit as instituted by the plaintiffs.

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The learned trial Court had framed issues on

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07.12.2007 in the following manner:-

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Whether plaintiff and proforma defendants No.19 are co-owners in possession over the suit land with extent of ¾ share as alleged?...OPP

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Whether revenue entries in the name of defendant No.1 to 6 as absolute owners in possession are wrong and illegal, as alleged?...OPP

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Whether mutation No.188 dated 14.5.1976 is wrong and illegal as alleged?.OPP

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Whether sale deed No.1239 dated 24.11.2005 and sale deed No.62 dated 21.1.2006 in favour of defendant No.1,4 and 5 are wrong, illegal etc., as alleged ?...OPP

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5.Whether relinquishment deed No.159 dated 18.6.2006 in favour of defendant No 1&2 are wrong, illegal etc, as alleged? ..OPP

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Whether plaintiffs are entitled for alternative relief of joint possession as prayed for ?...OPP

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Whether plaintiffs are entitled for relief of permanent prohibitory injunction as prayed for ...OPP

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Whether plaintiffs are estopped by filing suit as alleged ?...OPD 1to 5

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Whether present suit is barred by principle of resjudicata as alleged ?...OPD 1to 6

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Whether plaintiff has no cause of action to file the suit ?...OPD 1 to 6

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Whether this court has no jurisdiction to try this suit as alleged ?...OPD 1 to 6

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Whether suit is not maintainable in the present form?...OPD 1 to 6

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Whether suit is bad for non-joinder of necessary parties and mis joinder of parities as alleged?...OPD 1 to 6

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Whether predecessors in interest of defendants were tenant and were granted proprietary rights of the suit land as alleged ?...OPD 1to 6

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Whether defendant No.6A is bonafide purchaser of valuable consideration as alleged?...OPD6-A

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Relief.

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The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 1^st of March, 2014, the learned Civil Judge (Senior Division), Solan, District Solan, H.P. dismissed the suit as filed by the plaintiffs with cost of Rs. 2,000/- .

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Feeling dissatisfied, the plaintiffs approached the learned Additional District Judge-1, Solan, District Solan, H.P. on 3^rd May, 2014, by filing the appeal under Section 96 of the CPC. The First Appellate Court, vide its impugned judgment dated 16^th August, 2023, affirmed the findings of the learned trial Court and dismissed the appeal as preferred by the plaintiffs/appellants.

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Still feeling dissatisfied, the plaintiffs have approached this Court by filing the instant regular second appeal by invoking the provision of Section 100 of the CPC.

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It is contended by the learned Senior Counsel, Mr. P.S. Goverdhan, Senior Advocate assisted by Mr. Rakesh Thakur and Ms. Priti Steta, Advocates that the impugned judgment and decree as passed by learned Courts below, are erroneous and liable to be set aside. He submitted that the Courts below have not appreciated the oral as well as documentary evidence on record, as a result of which great prejudice has been caused to the plaintiffs. Therefore, after accepting the appeal, the suit as filed by the plaintiffs deserves to be decreed.

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On the other hand, Mr. Vipin Pandit and Mr. Ajay Sipahiya and Mr. Amit Jamwal, Advocates, have defended the impugned judgment and decree as passed by the learned Courts below. It is contended by the learned counsel for the respondents that the Courts below have thrashed the entire evidence on record and has rightly dismissed the suit filed by the plaintiffs.

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I have heard learned counsel for the parties and gone through the case file.

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At the outset, the learned Senior Counsel for the

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appellants has drawn the attention of this Court to the issues, which were framed by the learned trial Court, especially issues No. 10, 11 and 12, which reads as follows:

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“10. Whether plaintiff has no cause of action to file the suit ?...OPD 1 to 6

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Whether this Court has no jurisdiction to try this suit as alleged ?...OPD 1 to 6

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Whether suit is not maintainable in the present form?...OPD 1 to 6”

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The learned trial Court, while answering the said issues, ultimately, dismissed the suit as filed by the plaintiffs. Thereafter, the learned Senior Counsel has drawn the attention of this Court to the grounds of appeal which stood filed before the First Appellate Court, and he has referred to ground Nos. IX, X, and XI, whereby specific objection with respect to the adjudication of issues No. 10, 11 and 12 was taken.

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It is contended by the learned Senior Counsel that the grounds which were taken before the learned First Appellate Court were neither determined nor adjudicated, nor is there any discussion on the said issue(s). He submits that, being the last Court of fact, it was incumbent upon the First Appellate Court to

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have at least touched and discussed the points which were urged by the learned counsel for the appellants before the learned First Appellate Court. He further submits that there is non-compliance with the provisions of Order 41 Rule 31 of the CPC, and, in view of the exposition of law as laid down by the Hon'ble Apex Court, it is the duty of the Court to have referred to and adjudicated upon the points as urged by the party. He submits that, after setting aside the impugned judgment passed by the learned First Appellate Court, the matter may be relegated back to the learned First Appellate Court by directing the Court to give findings on all the points which were urged/raised by the plaintiffs/appellants.

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Faced with this situation, the learned counsel for the respondents have very fairly conceded that the learned First Appellate Court has erred by ignoring the said points, as there is no discussion or adjudication on the said issues/points.

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The Hon’ble Apex Court in its judgment in C. Venkata Swamy versus H.N. Shivanna (dead) by legal representatives and another (2018) 1 SCC 604 , while discussing the scope of First Appellate Court under Order 41 Rule 31 of CPC, has held as follows:

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“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.

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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.

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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.

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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 ofthe 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).

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“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.

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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

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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.

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Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation..…".

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(emphasis supplied)

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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.

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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:

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"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 …."

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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.

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

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"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."

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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):

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"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion …"

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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)

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"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:

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a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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

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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

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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.)

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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."

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In view of the law as laid down by the Hon’ble Apex Court, this Court is in agreement with the submission of the learned Senior Counsel, as, prima facie, the learned First Appellate Court has erred by not touching upon the points urged and raised by the plaintiffs/appellants before the learned First Appellate Court.

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Consequently, this Court has no other option but to quash and set aside the judgment and decree passed by the learned Additional District Judge-I, Solan, H.P., dated 16^th August, 2023, by relegating the appeal to the very same Court

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with the direction that the same shall be decided strictly in accordance with law, after giving an opportunity of hearing to the respective parties, and that it shall decide the same within a period of six months from today.

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Learned counsel for the parties undertake to appear before the learned First Appellate Court on 29^th July, 2026 .

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It is made clear that the learned First Appellate Court shall not issue fresh notices to the parties. As agreed upon by the learned counsel for the parties they shall remain present before the said Court, either in person or through their authorized representatives.

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In view of the observations made here-in-above, the present appeal stands disposed of.

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All the pending miscellaneous application(s), if any, shall also stand disposed of.

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(Romesh Verma) Judge

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July 13, 2026 (Nisha)

Balwant Singh and Others v. Ramesh Chand (Deceased through LRs Renu and Others)

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Balwant Singh and Others v. Ramesh Chand (Deceased through LRs Renu and Others)

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