The duty of the appellate court to independently assess the evidence and consider relevant points for adjudication, and the requirement for proper formulation of points for consideration as per Order 41 Rule 31 of the Code of Civil Procedure.

1. This second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 15.09.2004 passed by the learned Principal Subordinate Judge, Gobichettipalayam in A.S.No.19 of 2004 in reversing the judgment and decree dated 31.03.2004 passed by the learned District Munsif, Sathyamangalam in O.S.No.238 of 1998.

2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court.

3. Heard both sides.

4. A summation and summarisation of the facts absolutely necessary and germane for the disposal of this second appeal would run thus:

a] The respondent-Kolandasamy herein, who happened to be the plaintiff, filed the suit seeking the following reliefs:

To pass a decree

(i) to declare the plaintiff's title to the suit properties.

(ii) consequentially to direct the defendants 1 to 5 to vacate and deliver possession of the item (i) to (v) of the suit properties respectively to the plaintiff within a time to be fixed by this Court and the defendants default to do the same through the process of this court.

(iii) to grant a mandatory injunction against the first defendant directing him to remove the constructions effected in the item (I) of the suit property within a time to be fixed by this court and in default to do the same by the first defendant, through the process of this court and

(iv) for costs.

(extracted as such)

on the main ground that he purchased a vast extent of land where of the suit property forms a part vide the original sale deed dated 18.03.1993 [Ex.A1 is the photocopy of it]; that thereafter the defendants with the permission of the plaintiff entered into possession of the five moities in the said larger extent purchased by the plaintiff.

b] Whereas the defendants filed the written statement, challenging and impugning the averments as found set out in the plaint.

c] The trial court framed the relevant issues.

d] During trial, the plaintiff examined himself as PW1 along with PW2 and marked Exs.A1 to A9. D1 to D3 examined themselves as D.Ws.1 to 3 along with DW4 and DW5 and marked Exs.B1 to B9 and the Court documents Exs.C1 to C4 were also marked.

e) Ultimately, the trial court dismissed the suit by rendering a finding that the defendants acquired title by prescription and hence the plaintiff was not entitled to get the suit decreed.

f) Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the plaintiff preferred appeal; whereupon the first appellate court, set aside the judgment and decree of the trial court and rendered a finding that the lower court committed error in holding that the defendants acquired prescriptive title over the suit property and accordingly decreed the suit.

g] Challenging and impugning the judgment and decree of the first appellate court, the defendants have preferred this second appeal on various grounds.

5. My learned predecessor framed the following substantial questions of law:

(a) When the plaintiff's positive case that the defendants are in permissive occupation fails and in the face of the evidence brought to the notice of the court by the defendants in particular reference to Ex.B3 and other documents, has not the lower appellate court committed an error of law in non-suiting the plaintiff on the ground of the defendants perfecting title by adverse possession?

(b) Is not the judgment of the lower appellate court vitiated in law, though it finds that there is a dispute regarding the property forming the subject matter of the suit?

(extracted as such)

6. At the hearing, this court thought it fit to formulate the following additional substantial questions of law to the knowledge of both sides.

ADDITIONAL SUBSTANTIAL QUESTIONS OF LAW:

1. Whether the judgment of the first appellate court is vitiated for want of formulation of proper points for consideration as per Order 41, Rule 31 of the Code of Civil Procedure?

2. Whether the first appellate court was justifie