JUDGMENT Tarun Agarwala, J.
1. The plaintiff filed a suit for a permanent injunction praying that the defendants be restrained from taking possession of the disputed plots No. 463 to 468 and further prayed that the said plots should not be allotted to the defendants or to any other person. The plaintiff alleged that he along with his brothers were owners and in possession of the aforesaid plots as well as the abadi as shown in the plaint. The plaintiff alleged that the defendant No. 2 is the Pradhan of the village and wanted to allot the disputed land to the defendant No. 1.
2. The defendant No. 1 filed his written statement and contended that he had no concern with the land of the plaintiff and that he had been allotted 250 sq. yards from plot No. 460 which is adjacent to the plots of the plaintiff. The defendant contended that the plot of the defendant is different from the plots of the plaintiff.
3. On the basis of the pleadings and evidence lead by the parties, the trial Court decreed the suit and restrained the defendants from interfering in the possession of the plaintiff over plots No. 463 to 468 and the abadi. The trial Court held that the plaintiff was the owner and in possession of plot Nos. 463 to 468. The trial Court held that the disputed land was not identifiable on the spot and that plots Nos. 463 to 468 were identifiable and that plot No. 460 was not identifiable. The trial Court further found that the defendant No. 1 was in possession of 250 sq. yards of plot No. 260 and that the plaintiff was not the owner of plot No. 460 nor was in possession and that the defendant was in possession of a portion of plot No. 460.
4. Aggrieved by the decree of the trial Court, the defendant No. 1 filed an appeal, which was allowed by the judgment dated 7-5-1976 and the suit of the plaintiff was dismissed. The appellate Court held that the plaintiff had failed to establish that the disputed land belonged to him. Aggrieved by the decision of the appellate Court, the plaintiff has filed the present second appeal.
5. Heard the learned counsel for the parties.
6. The only point involved in the present appeal is whether substantial compliance has been made by the first appellate Court of Order 41, Rule 31 of the Code of Civil Procedure Order 41, Rule 31, CPC states as under :
"31. Contents, date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state -
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellants is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
7. The provisions of Order 41, Rule 31 of the Code of Civil Procedure arc mandatory. The first appellate Court while delivering the judgment is required to set out the points for determination, record the decision thereof and give its own reasons for the said decision. Looking at the plain language of the section, it is clear that failure to comply with this provision would not be a mere irregularity but would render the judgment nugatory. The first appellate Court being the last fact finding Court cannot run away from its onerous duties of recording the finding of fact and discussing the evidence and recording the findings of fact. In 1979 AWC 687 : (1979 All LJ (NOC) 110), Smt. Damyanti Devi v. Brindaban it was held -
"Where the judgment of the appellate Court is of reversal, the appellate Court should consider all the relevant and material evidence on record and thereafter give reasons for the said decision."
8. In Keluni Dei v. Kanhei Sahu, AIR 1972 Orissa 28, it was held -
"It is incumbent upon the final Court of fact, particularly in the case of reversing decision this is an instance of reversal as all the material findings were being reversed to meet the reasonings of the trial Court and indicate its own reasons for the conclusions to be reached."
9. In my view, the judgment of the first appellate Court cannot be said to be a judgment within the meaning of Order 41, Rule 31, CPC. The appellate Court has neither discussed the evidence or has given any reason for reversing the decision given by the trial Court on various issues. It was the duty of the appellate Court to discuss the entire evidence afresh, take notice of the features which were noticed by the trial Court and then give its own independent reason. The lower appellate Court has failed to discharge its duties as a final Court of fact. The appellate Court has shirked its duties and has not discussed the evidence brought on record. On several occasions the appellate Court has only criticised the efforts made by the trial Court in issuing various commission in order to identify the land. The appellate Court instead of giving a finding of various issues framed by the trial Court has allowed the appeal on the ground that the plaintiff had failed to establish that the disputed land belonged to him. This finding given by the appellate Court, in my opinion, is based on no reason or evidence. The appellate Court has omitted to take stock of the entire material and failed to take a cumulative view from the material evidence on record.
10. Thus, the judgment of the appellate Court cannot be sustained and has to be set aside. Since, a finding on various Issues which are based on facts are required to be given, there is no alternative but to remand the matter back to the first appellate Court with certain directions. Accordingly, the second appeal is allowed. The judgment of the first appellate Court dated 7-5-1976 is set aside and the, matter is remanded back to the first appellate Court to decide the appeal afresh in accordance with the provisions of Order 41, Rule 31 of the Code of Civil Procedure and to decide the same in accordance with law within a period of three months from the date a certified copy of the judgment is produced before it. Till the disposal of the appeal, the injunction granted by this Court shall continue to operate. In the circumstances of the case there shall be no order as to cost.