- (1.) INSTANT appeal has been filed against the judgment and decree dated 16. 12. 1995 passed by learned Additional District Judge, Falodi in Civil Appeal No. 5/94 whereby he allowed the appeal and reversed the judgment and decree dated 25. 8. 1994 passed by the learned Civil Judge (S. D.) Falodi in civil original suit No. 22/92 whereby the suit for permanent injunction filed by plaintiff- appellant was decreed.
(2.) IT is evident from the plaint allegation that the plaintiff- appellant filed a suit for permanent injunction about the residential house in question alleging to be acquired by his common ancestors along with the ancestors of defendant Nos. 1 to 3. The boundary of the house in question has been disclosed in paragraph 2 of the plaint. In paragraph 6 of the plaint it is clearly averred by the plaintiff-appellant that the residential house for which defendant Nos. 1 & 2 had obtained `patta' in their own names are not entitled to obtain `patta' of the said house as the house in question is ancestral. The contesting defendant Nos. 1 to 3 denied the averments made in the plaint including the averments made in paragraph 6 of the plaint in their written statement. On the basis of the pleadings of the parties the learned trial Court framed as many as 5 issues and gave opportunity to both the parties to adduce evidence in support of their respective claims. I have heard the learned counsel for the parties. Perused the judgments given by learned lower appellate Court as well as as trial Court. A close scrutiny of the judgment given by learned lower appellate Court reveals that it had proceeded to decide the appeal on merits before formulating points for determination involved in the appeal as envisaged u/o. 41, R. 31 CPC. It is further revealed from the perusal of the judgment given by the learned lower appellate Court that although learned trial Court framed as many as 5 issues and has recorded findings on each issues but the learned lower appellate Court instead of reversing the findings recorded by learned trial Court on each issues proceeded to decide only issue No. 4 and in this process he reversed the entire findings even on other issues recorded by the learned trial Court.
(3.) MR. R. K. Thanvi, learned counsel appearing for the respondents strenuously urged before me that although learned lower appellate Court has discussed only issue No. 4 but while discussing issue No. 4 it has taken into account the decision given by learned trial Court on other issues also. I am not impressed with the argument of learned counsel for respondents. I am of the opinion that whenever and wherever an appeal is filed before a appellate Court u/s. 96 CPC the appellate Court is under statutory obligation to formulate the points for determination as envisaged u/o. 41, R. 31 CPC and any breach committed by appellate Court in this regard shall be treated to be substantial error of law and procedure. As regards second limb of argument of Mr. Thanvi to the effect that in the garb of issue No. 4 the learned lower appellate Court has decided other issues too is not acceptable. Suffice it to say in this regard that when a fact is borne out clearly from perusal of the judgment the same cannot be made debatable. Debatable question arises where there is some ambiguity but in the present case there is no ambiguity at all in the judgment of learned lower appellate court to the effect that it has decided o n ly issue No. 4, therefore, it cannot be argued that while deciding issue No. 4 the learned lower appellate court has also decided other issues. There is yet another reason to arrive on the aforesaid conclusion. It is to be remembered that Courts of law have developed a judicial principle from time immemorial that if a Court is of the view that two or more issues are inter-linked and these issues can be dealt with together only then decision of one issue can be mixed up with decision of other issue otherwise not. In the present case the learned lower appellate Court has not made any such observation hence the contention of Mr. Thanvi is hereby repelled. ;