Point of law: while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it

JUDGMENT :

1. This second appeal arises out of the judgment and decree dated 19.01.1999 and 25.01.1999 respectively, entered by learned District Judge, Siddharth Nagar, in Civil Appeal No. 40 of 1998, Kedarnath Vs. Ganga Prasad Rai & another, which partly modifies and largely upsets the judgment and decree dated 26.03.1998 and 07.04.1998 respectively rendered by the learned II-Additional Civil Judge (Junior Division), Bansi, Siddharth Nagar in Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad Rai and another.

2. This second appeal has been instituted by Ganga Prasad Rai, who is arrayed as defendant no. 1 in the suit.

3. Civil action was brought by the plaintiff-respondent no.1, against the defendant no.1-appellant and defendant no.2-respondent no.2, by instituting Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad and others, before the IInd Additional Civil Judge (Junior Division), Bansi, District Basti (Siddharth Nagar). The genealogical table set out in the plaint which describes the respective positions of the parties to the suit is extracted below.

4. The plaintiff-respondent no.1, defendant no.1-appellant and defendant no.2-respondent no. 2 are real brothers. The plaint asserts that the property in dispute devolved upon the parties by inheritance was partitioned in three equal parts. The parties came in possession of their respective shares pursuant to the said family settlement. The land situated in Plot Nos. 2913 and 2914 marked as ABCD in the map at the foot of the plaint, constitutes the disputed property in the suit. According to the plaint, the plaintiff-respondent no. 1 is the sole owner of the said property as it was apportioned to him in the partition.

5. The defendant no. 1-appellant threatened to force himself on the disputed land, made encroachments and raised constructions thereon, which are marked as K L M N and X Y P Q R in the map attached at the foot of the plaint.

6. On this cause of action, the suit was instituted by the plaintiff -respondent no.1 seeking various reliefs. The plaintiff-respondent no.1 prays that the defendant no. 1 appellant, be permanently injuncted from interfering in the peaceful possession of the plaintiff-respondent no.1, over the disputed plot of land marked as ABCD in the map at the foot of the plaint.

7. A mandatory injunction against defendant no. 1appellant is sought, after demolition of the constructions marked as K L M N and X Y P Q R made by defendant no. 1-appellant over the disputed plot. Finally, the relief clause prays that the possession of the parts of the land on which the disputed constructions have been raised by the defendant no. 1-appellant, be made over to the plaintiff-respondent no. 1.

8. The alternative prayer is to partition the disputed property i.e. the plots’ numbers’ 2913 and 2914.

9. The defendant no. 1-appellant entered his opposition to the plaint in the written statement. In the written statement, the defendant no. 1-appellant categorically denies all allegations of encroachment of land and asserts that the disputed plot of land A B C D fell to the share of the defendant no. 1-appellant in the partition. True status of the shares of respective parties after the partition is provided in the map at the foot of the written statement.

10. The written statement references the judgment of the consolidation officer dated 20.03.1986 rejecting the claim of the plaintiff-respondent no. 1, on the disputed property, on the foot that the family partition had already taken place between the parties.

11. The additional written statement, states that the plaintiff-respondent no.1 had not referenced the ancestral house in plots nos. 2911 and 2912 in the plaint which was also part of the partitioned ancestral property.

12. The following issues (which are relevant at this stage) were