1. Heard. Admit Taken up for final hearing with the consent of learned counsel for parties.

2. In both these appeals, two brothers- Yeshwant and Vijay have put to challenge the judgment and decree dated 7/12/2010 passed by Ad hoc District Judge-1 Gondia in Regular Civil Appeal Nos. 66 of 2007 and 67 of 2007, by which he reversed the judgment and order dated 26/4/2007 passed by Civil Judge, Jr.Dn., Arjuni Morgaon in Regular Civil Suit Nos. 15 of 2004 and 16 of 2004.

3. In the said two suits, R.C.S. NO. 15/04 and 16/04, the case of both the brothers in the respective plaint was that their father Mahadeo had purchased agricultural land from one Chitnavis sometime in the year 1953-54 but had taken possession of the land without measuring the same. However, both the brothers then got the lands measured through Taluka Inspector of Land Records, Ajuni Morgaon in the year 2002 who, upon measurement, found that respondent/defendant Parasram had encroached on the fields of both the plaintiffs. Therefore, they issued registered notice to the defendant who refused to accept the same. Thereupon both the plaintiffs, namely Vijay and Yeshwant, filed respective suits for removal of encroachment made by the respondent/defendant. Parties to both the suits examined their respective witnesses and finally upon consideration of evidence of both the sides, the trial Court separately decreed both the suits filed by both the brothers. Aggrieved by the judgments, the respondent/defendant preferred appeals before the lower appellate court who allowed the appeals and set aside the judgment and decree recorded in both the suits. Hence, these second appeals.

4. Learned counsel for the appellant in both the appeals argued that the judgment of the lower appellate court is not the judgment in compliance with the provisions of Section 96 r/w Order 41 Rule 31 of Code of Civil Procedure, inasmuch as the said judgment does not disclose the discussion on facts and on evidence as to why the lower appellate court has not considered the evidence, particularly that of Surveyor, in contradiction to what was done by the trial Court by accepting the said evidence. The only reason given by the lower appellate court is that Surveyor is expert witness and expert evidence is not binding on the Court. The second reason is that there is admission of fact by plaintiff in para 5 of his evidence which is also factually wrong. According to learned counsel, the judgment recorded by the lower appellate court is cryptic and therefore he prayed for directions for rehearing of Regular Civil Appeal by the lower appellate Court and this, according to him, is the substantial question of law.

5. Per contra, Mr. Quazi, learned counsel for the respondent in both the appeals, opposed the submissions made by learned counsel for appellants and supported the impugned judgment and decree made by the lower appellate court. He submitted that the Court is entitled to act upon the admission made by the plaintiff and since in the instant case the admission of the plaintiff demolished his entire case, no fault could be found out with the lower appellate court in disagreeing with the trial Court. According to him, it is not necessary for the lower appellate court to deal with the evidence of all the witnesses nor it is incumbent on the part of the lower appellate court to accept the evidence of Surveyor- Bhagwan Ruikar (P.W.2), who merely was an expert witness. He, therefore, prayed for dismissal of both the appeals.

6. I have gone through the impugned judgment and order made by the lower appellate court. Upon hearing learned counsel for rival parties, following substantial questions of law arise for my consideration:

“ (i) Whether the lower appellate court committed an error in not performing its duty in accordance with the provisions of Section 96 and Order 41 Rule 31 of Code of Civil Procedure and in accordance with the principles laid down by the Supreme Court?

(ii) Whether the lower appel