ORDER

1.Heard learned counsel for the parties.

2. The plaintiff is in appeal questioning the validity and correctness of the impugned judgment passed by the High Court in second appeal. The plaintiff filed suit for declaration that it alone was entitled to the management of the "kabarsthan" and the usufructs of the trees standing thereon and for consequential relief of permanent injunction restraining the defendants and their men from interfering with the possession and enjoyment of the suit property. The trial court decreed the suit. The first appellate court affirmed the decree passed by the trial court, concurring with the findings recorded by the trial court. The second defendant in the suit approached the High Court by filing second appeal challenging the correctness of the judgment and decree of the first appellate court affirming the judgment and decree passed by the trial court. The second appeal was admitted after formulating the following substantial question of law:

"Whether the plaintiff which has filed the suit for bare injunction has proved its possession of the suit properties on the date of suit and whether the courts below have erred in not considering the relevant evidence such as Ext. B-6 and Ext. B-8 which are the petition and affidavit filed by the plaintiff itself in the earlier proceedings admitting possession of the suit properties by the second defendant, predecessor-ininterest of the 5th defendant?"

3. Perusal of the impugned judgment shows that the High Court has practically reappreciated the evidence placed on record and allowed the second appeal disturbing the concurrent findings of fact recorded by the courts below. From the plain reading of the so-called substantial question of law, it appears to us that it is not a substantial question of law. Before the High Court, the learned counsel appearing for the plaintiff complained that the courts below had not considered the documentary evidence adduced by the appellant before it and that the matter could be remitted to the trial court. The trial court commenced its judgment stating that the suit was for permanent injunction, without focusing its attention to the fact that the suit was substantially for declaration and then, for consequential injunction. The first appellate court although raised the points for determination, as is evident from its judgment, ultimately it did not record .a specific finding as to whether the plaintiff was entitled to the relief of declaration, as sought for, on the basis of the pleadings and evidence that were available on record. The first appellate court dismissed the appeal. We would have set aside the impugned judgment and remitted the second appeal to the High Court to consider, in the first place, whether any substantial question or questions of law arose for consideration between the parties, as mandatorily required under Section 100 of the Civil Procedure Code. But, in this case since the first appellate court itself has not properly appreciated the evidence on record and has not recorded specific findings, having regard to the pleadings of the parties and reliefs sought for in the suit, we think it is appropriate to set aside the impugned judgment and remit the case to the first appellate court for disposal after reappreciation of the entire evidence having regard to the pleadings of the parties, considering the reliefs sought for in the suit and a recording specific findings, as regards the points that arise in the suit. In this view, we do not wish to express one way or the other on the merits of the respective contentions advanced on behalf of the parties. Hence, the appeal is allowed, the impugned judgment as well as the judgment of the first appellate court are set aside. The matter is remitted to the first appellate court to dispose of the appeal on merits and in accordance with law in the light of b what is stated above. No costs.

4. Taking note of the age of the case which is very old, we direct the firs