2004 INSC 0749
                                    SUPREME COURT OF INDIA

                                                H.K.N.Swami

                                                      Vs.

                                                Irshad Basith

                                            (2005) 10 SCC 0243

                                   (Ashok bhan and S.H.Kapadia,JJ.)

                                                 22.07.2004

                                                    Order

1. The Plaintiff-respondent (hereinafter referred to as "the respondent") filed a suit for
permanent injunction restraining the defendant-appellant (hereinafter referred to as "the
appellant") from interfering with his possession in property bearing Site No. 44/6 in Jaya
chamarajendera Road, presently 38th Division, Bangalore City, Measuring ,,90 x100. The
trial court dismissed the suit on the ground that the plaintiff had failed to prove his title as
also the possession over the suit property. It was also found that the identity of the property
was also in doubt .

2. Aggrieved by the aforesaid judgment of the trial court, the respondent filed a Regular First
Appeal No. 116 of 1990 in the High Court. Without recording a finding that the respondent
was in possession of the property as also the title to the property abruptly concluded that the
title or the property is found to be in favor of the respondent. Finding as to the title has not
been arrived at by the High court on appreciation of evidence.

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. The order of the High Court is cryptic and the same is without assigning any reason.

4. For the aforesaid reasons, we accept this appeal, set aside the judgment of the High Court
and remit the matter back to the High Court to decide it afresh keeping in view the
observations made by the Court in Madhukar Vs. Sangram1 while dealing with the first
appleal.

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5. The Registry is directed to remit the record to the High Court forthwith. Since this first
appeal pertains to the year 1990, we would request the High Court to dispose of the appeal
subject to its variation on an application being made by either of the parties.

7. Both the IAs are dismissed as infructuous.

Judgment Referred.

1(2001) 4 SCC 0756

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