Gurcharan Singh and Another vs Gurcharan Singh and Others

T.H.B. Chalapathi, J.—The second appeal is filed against the order of the learned Additional District Judge, Sangrur, dated 7.11.1998.

The plaintiff-first respondent filed the suit for specific performance of agreement to sell dated 13.5.1986 or in the alternate also prayed for the refund of the earnest money in case specific performance is refused. The defendants admitted the execution of the agreement to sell by the first defendant in favour of defendant No. 2 but denied the contents thereof. Appropriate issues were framed. On a consideration of evidence on records, the trial Court decreed the suit. Aggrieved by the said decree and judgment of the trial Court, the defendants filed the appeal in the Court of the Additional District Judge Sangrur.

A reading of the judgment of the learned Additional District Judge, Sangrur, shows that evidence on record has not been considered at all. He has only referred to two documents Ex.P-11 and P-12. It is useful to extract paragraph 9 of the judgment of the Lower Appellate Court which is as follows:-

"From Ex.P11 it is clear that there was exchange with Gurcharan Singh son of Mit Singh and from Ex.P.12 it is clear that Gurcharan Singh exchanged Khasra Nos. 664-665 of village Ghanaur Khurd with Gurdev Singh with respect to Khasra No. 104-105 (Ex.P.11). Otherwise Bachittar Singh and Gurcharan Singh sons of Mit Singh have been dealing with the land separately. Otherwise all the issues have been correctly decided by the then learned Sub Judge 1st Class, Dhuri and I find no infirmity in the judgment under appeal. Thus this Civil Appeal has got no merits and the same is dismissed with costs. Let the decree sheet be prepared.

Trial Court record be sent back being no longer required. File of this Court be consigned to the record room."

Learned Additional District Judge has stated thus in the above paragraph:-

"Otherwise all the issues have been correctly decided by the then learned Sub Judge, 1st Class, Dhuri and I find no infirmity in the judgment under appeal."

This is not the way in which the First Appellate Court has to dispose of the appeal. The First Appellate Court is a final Court of fact and it has to record its own findings on all issues. It is pertinent to note that the defendants-appellants have examined 5 witnesses and produced 11 documents. Neither the oral evidence nor the documentary evidence produced on behalf of the appellant has been referred to by the learned Additional District Judge. In these circumstances, I am constrained to allow the appeal and remand the matter to the learned Additional District Judge, Sangrur, to decide the appeal afresh after considering the entire evidence on record and recording his own findings on each of the issues that have been framed in the suit.

Accordingly, I allow the appeal and set aside the decree and judgment of the learned Additional District Judge, Sangrur and send the matter back to the learned Additional District Judge, Sangrur for consideration of the matter afresh on the basis of the evidence. Parties are directed to appear before the learned Additional District Judge, Sangrur on 19.7.1999. The Registry is directed to refund the Court fee to the appellant in accordance with law and rules.