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Head Note

The Code of Civil Procedure, 1908  - Section 96 , Order XLI Rule (31)

First Appeal - Co-sharers - Suit for Partition and Separate Possession of Share - High Court neither dealt with any of the submissions urged by the appellants and/or respondents nor it took note of the grounds taken by the appellants in grounds of appeal nor took note of cross objections filed by plaintiffs under Order XLI Rule 22 of the Code and nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case laws applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial Court can be sustained or not and if so, how, and if not, why? - Being the first appellate Court it was 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 XLI Rule 31 of the Code and it was 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 - The impugned judgment set aside and the case remanded to the High Court for deciding the first appeal and cross-objections afresh, keeping in view the principle of law laid down by the Apex Court.

Topic(s)-Suit for Partition and Separate Possession of Share