1. Instant regular second appeal filed under Section 100 of the CPC, lays challenge to the judgment and decree dated 13.12.2007, passed by the learned Additional District Judge, Shimla, camp at Rohroo in CA No. 10-R/13 of 2005, reversing the judgment and decree dated 30.3.2005, passed by the learned Civil Judge ( Sr. Div.), Court No.1, Rohroo, District Shimla, in CS No. 223/1 of 2003, whereby suit for permanent prohibitory injunction and mandatory injunction having been filed by the appellant/plaintiff came to be decreed.

2. Briefly stated facts of the case as emerge from the record are that plaintiff filed a suit for permanent prohibitory injunction against the defendant averring in the plaint that parties to the lis were previously having one common ancestor late Sh. Angi Ram, who had four sons namely Jagat Ram, Chanan Dev, Mohan Dev and Kedar Nand. Plaintiff averred that Angi Ram and his sons are now no more and parties to the suit are the legal heirs to the aforesaid persons namely Jagat Ram and Kedar Nand. Plaintiff alleged that land comprised in Khata Khatauni No. 139/335 min, khasra No. 1568, measuring 0-00-76 hectares situate in Chak Arhal though has been shown to be owned by the different co-sharers, but in the column of cultivation the gair mumkin house has been shown to be in the exclusive possession of the plaintiff as same fell in the share of late Sh. Jagat Ram, father of the plaintiff in the family partition took place inter-se predecessor-in- interest of the parties way back in December, 2008. Plaintiff claimed that he is coming in peaceful possession of the said house constructed over the suit land. Plaintiff also averred that land bearing khasra No. 1568/2 has been shown to be Makan and Kuthar. Similarly, over land bearing khasra No. 1585/5 disputed Kuthar of the plaintiff has been shown by the Patwari in tatima issued on 25.9.2000. He alleged that right from December, 2008, the Kuthar is shown in the peaceful possession of the late Shri Jagat Ram and thereafter, he is in the possession of the same. Similarly, plaintiff alleged that land bearing khasra No. 1585/3 shown as disputed abadi has been kept joint between the parties towards land bearing Khasra No. 1568 and remaining khasra No. 1585/3 was kept joint of all the four brothers being common ukhal land common abadi, which is jointly being used by the parties to the suit and as such, defendant has no right to change the nature of the land. Plaintiff further claimed that land bearing khasra No. 1585/1 is in exclusive possession of the plaintiff in the shape of gair mumkin courtyard and as such, defendant has no right title and interest over the piece of land. Plaintiff claimed that in the year, 2000, defendant tried to interfere in the suit land and as such, he was compelled to file civil suit, which ultimately ended in compromise and case was withdrawn by the plaintiff after recording the statements of the parties. He alleged that defendant once again for the last 15 days in his absence has started the construction of the land bearing khasra No. 1585.

3. Case of the plaintiff came to be resisted by the defendant, who in the written statement alleged that khasra No. 1568 is owned by about 35 persons and share of the plaintiff out of area 0-00-76 comes out to be negligible. Defendant denied that disputed Kuthar is in existence on the Khasra No. 1558/5. He further alleged that tatima issued by the Patwari dated 29.11.2003 clearly reveals that Kuthar has been shown in Kharsa No. 1558/8. He alleged that compromise deed dated 2.11.2000 is being complied with in its letter and spirit by him and he has not deviated from the same in any manner. He further alleged that half portion of the wooden structure kuthar of the plaintiff is standing in the share of the defendant and as per compromise dated 2.11.2000 kuthar is in existence on the spot, however, he reserves his right to take balance portion of the share of the kuthar if the exigency so arises. While stating that he never changed the nature of the suit land, defendant also claimed that he constructed new house in khasra No. 1585/2 adjacent to house in khasra No. 1585/9 and the construction has been carried out by the defendant inside the stone wall of bara and ukhal, khural and some vacant portion has been kept vacant as per the terms of compromise for the use of villagers. He also claimed that remaining portion of the wall of bara shown as khasra No. 1585/4 belongs to the defendant. He denied that kuthar and gair mumkin sehan remained in exclusive possession of the plaintiff. He also denied that he has raised roofing of GE sheets over the land comprised in khasra No. 1585/6 and there is ukhal mustrika as has been shown in spot tatima issued by halqua patwari on the spot.

4. On the basis of aforesaid pleadings adduced on record by the respective parties, learned trial court framed following issues:

“1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed OPP.

2. Whether the land bearing khasra No. 1568 fell in family partition in the share of the plaintiff and it is exclusive possession since samvat, 2008, as alleged OPP.

3. Whether the land khasra No. 1585/3 having ukhal/khural over it was kept joint as alleged OPP.

4. Whether the land khasra No. 1585/1 is in exclusive possession of the plaintiff OPP.

5. Whether the defendant has retracted from the statement dated 2-11-2000, if so its effectOPP

6. Whether the plaintiff is entitled for the relief of mandatory injunction OPP.

7. Whether the suit is not maintainableOPD

8. Whether the plaintiff is stopped from filing the suit on account of his acts, deeds and conducts OPD

9. Whether the suit is hit by the principle of resjudicata OPD.

10. Relief.”

5. Subsequently, on the basis of pleadings as well as evidence led on record by the respective parties, learned trial Court, vide judgment dated 30.3.2005 decreed the suit of the plaintiff and passed decree of permanent prohibitory injunction in favour of the plaintiff and against the defendant. Court below also passed decree for mandatory injunction against the defendant to remove the roofing over the land comprising khata Khatauni No. 203/500 min khasra No. 1586/6.

6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, respondent/defendant filed an appeal in the court of learned Additional District Judge, Shimla, which came to be allowed vide judgment dated 13.12.2007 as a consequence of which, judgment and decree passed by the learned trial court came to be quashed and set-aside. In the aforesaid background, appellant/plaintiff has approached this Court in the instant proceedings, praying therein to set-aside the impugned judgment and decree passed by the learned first appellate court.

7. Vide order dated 28.2.2008, instant appeal came to be admitted on the following substantial questions of law:

“1. Whether the findings of reversal recorded by the learned Additional District Judge are vitiated on account of misreading and mis-appreciation of the pleadings of the parties as well as oral and documentary evidence on record.

2. Whether the appellant having proved on record the violation of the terms and conditions of the Compromise, Ex. PW-1/A and statements of the parties, Ex.PW-1/B, at the time of passing of order Ex.PW-1/A, dated 17.12.2004, therefore, the findings of the learned trial court could not have been reversed.

3. Whether the learned Lower Appellate Court having observed that issues No.l to 4 and 6 could not have been clubbed because those were not interconnected, therefore, the case was required to be remanded back.

4. Whether the points for determination as involved in issues, as framed by the learned trial court, that is, issues No. 1 to 9 were required to be kept into consideration, while reversing the decree of the learned trial court and since this has not been done, therefore, there has been failure to exercise the jurisdiction in accordance with law.

5. Whether the Tatimas Ex.PW-2/A and Ex. PW-2/B proved by the appellant on record by producing PW-2, Halqua Patwari, therefore, these documents have been misread and misconstrued and third Tatima, Ex.DX brought on record by the respondent was also required to be considered and discussed.

6. Whether the Tatimas, Ex. PW-2/A and EX. PW-2/B have been disbelieved by the learned Additional District Judge, therefore, in view of the controversy as involved about the extension of eaves and roof by the respondent, therefore, in order to do the substantial and complete justice, provisions of Order 26 Rule 9 C.P.C. should have been invoked, inter- alia to find out as to whether the compromise order, Ex. PW-1/A and Ex. PW-1/B have been complied with or not.

7. Whether the learned Lower Appellate Court has failed to exercise the jurisdiction in accordance with law by ignoring the grounds which weighed with the learned trial court for passing a decree and thus the findings recorded by him are liable to be set-aside.”

8. I have heard the learned counsel for the parties and perused the entire record.

9. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by the learned first appellate Court while passing impugned judgment dated 13.12.2007, thereby setting aside judgment and decree dated 30.3.2005 passed by the learned Civil Judge Rohroo, this Court sees no reason/occasion to explore/ascertain the answers to the aforesaid substantial questions of law framed by this Court at the time of admission of the appeal because bare perusal of the judgment passed by the learned first appellate court itself reveals that learned trial court while decreeing the suit of the plaintiff failed to return separate findings with the reasons on each issue. Moreover, judgment passed by the learned first Appellate Court further reveals that there were three tatimas on record to show encroachment, if any, on the land of the plaintiff and these tatimas were actually prepared by one person at the instance of the court i.e. learned Sub-Judge, Rohroo in the present and previous suit. Apart from above, learned first Appellate Court has arrived at a conclusion that learned trial court though reproduced the evidence, but failed to assign any reason in support of its findings, on the basis of which, suit having been filed by the plaintiff came to be decreed. It would be apt to take note of para 13 of the judgment passed by the learned first appellate Court:

“ 13. The judgment and decree passed by the court below deserves to be set aside on the short ground that issue Nos. 1 to 4 and 6 all have been discussed together. This has created a confusion. The learned court below simply reproduced all the evidence, produced by the parties, but did not discuss by assigning reason why and which portion of the statement, the court believed and judgment does not clearly depict as to which of them was really acceptable and for what reasons.”

10. Having carefully perused aforesaid finding returned by the learned first Appellate Court, this Court finds substantial force in the submissions made by Mr. G.D. Verma, learned Senior counsel appearing for the appellant that once learned first Appellate Court had arrived at a definite conclusion that all the issues No. 1 to 4 and 6 have been discussed together and no separate finding has been recorded by the learned trial court qua each issue, it ought to have remanded the case back to the learned trial court with direction to return finding on each and every issue. Bare perusal of the aforesaid para itself suggests that on account of clubbing of issues No. 1 to 4 and 6, confusion arose in the mind of the learned first Appellate Court. It also emerges from the judgment passed by the learned first Appellate Court that there were two tatimas Ext.PW2/A and Ex.PW2/B placed on record by the plaintiff to prove his case with regard to encroachment over his land allegedly made by the defendant. Apart from above, third tatima Ext.DX was placed on record by the defendant. Interestingly, all these three tatimas were prepared by one Patwari though on different dates but on the directions passed by the learned Civil Judge, Rohroo, however learned first Appellate Court while reversing the decree of trial court was unable to decipher that on which tatima, learned trial court placed reliance while decreeing the suit of the plaintiff.

11. By now it is well settled that all the issues framed on the basis of pleadings are to be decided separately that too by issuing cogent and convincing reasoning. Though this Court finds substance in the findings returned by the learned first Appellate Court that on account of clubbing of issues and non-assignment of reasons by the learned trial court while deciding such issues, much confusion has arisen, but in that situation, there was no scope left for the learned first Appellate Court to reverse the judgment and decree passed by the learned trial court, rather best approach would have been to remand the case back to the learned trial court with direction to decide the same afresh. Reliance is placed on judgment passed by this Court in Om Prakash and Ors v. State of Himachal Pradesh and Ors, AIR 2001 Himachal Pradesh 18, wherein it has been held as under:

“12. In the present case, trial Court has framed all the issues and was supposed to give separate findings on each issue, as admittedly the findings upon any one or more of them are not sufficient for the decision of the suit. By simply enumerating the evidence and law and thereafter giving conclusion whereby the case of one party is accepted and the other party is rejected, is no judgment in the eyes of law. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a Judgment and decree on the points in issue or controversy, is vitiated.

It is all the more necessary, when the judgment is by the Court of fact and is appealable, to avoid unnecessary delay and protracted litigation. The Supreme Court in Fomento Resorts and Hotels Ltd. v. Gustavo Ranato da Cruz Pinto, AIR 1985 SC 736 [LQ/SC/1985/58] , has held in paragraph 27 as under :

"In a matter of this nature where several contentions factual and legal are urged and when there is a scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point."

(Also see Ram Ranbijaya Prasad Singh v. Sukar Ahir, AIR 1947 Pat 334 (SB); Ambor Ali v. Nichar Ali, AIR 1950 Assam 79; Ahmed All v. Shaik Ahmed, AIR 1955 Hyderabad 268 and Swaminathan Ambalam v. P.K., Nagaraja Piliai. AIR 1973 Madras 110). There-' fore, by not deciding issues Nos. J to 5 separately by referring to material evidence on each issue for and against the parties and giving reasons for its acceptance or rejection, the impugned judgment is vitiated.”

12. There is another aspect of the matter that once three tatimas prepared by one Patwari that too on the direction of the learned trial court were on record and yet question with regard to encroachment, if any, made by the defendant over the land of the plaintiff could not be decided on the same, learned trial court while exercising power under Order 26 Rule 9 CPC ought to have appointed Local Commissioner to ascertain the factual position on the spot. Though at this stage, Mr. Arvind Sharma, learned counsel for the defendant vehemently argued that application, if any, under Order 26 Rule 9 CPC was to be filed by the plaintiff, but having carefully perused provisions contained under order 26 Rule 9 CPC, this Court is of the view that power under this provision is to be exercised by the court, especially when it deems it necessary for proper adjudication of the dispute for the purpose of elucidating any matter in dispute or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits. Since in the case at hand, there were three different tatimas prepared by the revenue authority depicting different picture in all tatimas, court should have exercised power vested in it under Order 26 Rule 9 CPC to appoint Local Commissioner, who after visiting the spot may have given the correct report to the court enabling it to do the substantial justice.

13. Though having taken note of the fact that in the instant proceedings, challenge has been laid to judgment passed by the learned first Appellate Court, this court ought to have remanded the case back to the learned first Appellate Court, but since this court has already formed an opinion that learned District Judge for the reasons stated in para-13 of the impugned judgment ought to have remanded the case back to the learned trial court, this court with a view to avoid further delay in proceedings deems it fit to remand the case back to the learned trial court with direction to decide the same afresh on the basis of evidence already available on record. However, learned trial court, if finds it necessary, may exercise power under Order 26 Rule 9 CPC to ascertain correct position on the spot.

14. Consequently, in view of the above, present appeal is allowed and judgments and decrees dated 30.3.2005 and 13.12.2007 passed by the courts below are quashed and set-aside and matter is remanded back to the learned trial court with direction to decide the same afresh in terms of observations made herein above. Since matter is hanging fire for more than 20 years, this Court hopes and trusts that learned trial court would conclude the same expeditiously. Parties are directed to remain present before the learned trial court on 7.9.2022, enabling it to do the needful. In the aforesaid terms, present appeal is disposed of alongwith pending applications, if any.