Point of Law: Civil Suit - Execution of Decree - First appellate court being final court of fact must not record mere general expression of concurrence with trial court judgment; rather it must give reasons for its decision on each point independently to that of trial Court in terms of provisions contained under Order 41 Rule 31 C.P.C.

JUDGMENT :

1. Heard Sri Kshitij Shailendra, learned counsel for the appellants, and Sri Anay Kumar Srivastava, learned counsel for the caveator-respondent. With the consent of learned counsel appearing for the parties, the present appeal is being decided at this stage itself in terms of the Rules of the Court.

2. The present second appeal has been filed challenging the judgment, order and decree dated 21.11.2020 passed by the Additional District & Sessions Judge/ Special Judge (SC/ST Act), Baghpat in Civil Appeal No.6 of 2019 (Prahlad and others v. Smt. Hameedan and others), and the judgment, order and decree dated 03.12.2018 passed by the Civil Judge, Junior Division-Ist, Baghpat in Original Suit No. 143 of 2005 (Smt. Hameedan and another v. Prahlad and others).

3. The plaintiff-respondent no. 1 instituted a civil suit for permanent prohibitory injunction against the defendants-appellants. The case of the plaintiff-respondent was that the land in dispute had been allotted to her by Gaon Sabha on 12.06.1969, over which she had constructed a Gher and that, the defendants, having no concern with the property, were causing interference in her possession.

4. The trial Court vide judgment and order dated 03.12.2018 decreed the suit against which the defendants filed a civil appeal, being Civil Appeal No. 6 of 2019, which was dismissed by the lower appellate Court vide judgment and order dated 01.01.2020.

5. The record reflects that the appellants filed a second appeal, being Second Appeal No. 248 of 2020 (Prahlad and others v. Smt. Hameedan and another), which has been allowed by this Court vide order dated 06.07.2020 and the judgment and order dated 01.01.2020 passed by the lower appellate Court was set aside and the matter was remanded back to pass a fresh judgment as there was non-compliance of the provisions of Order 41 Rule 31 C.P.C.

6. Pursuant to the said order of this Court, the lower appellate Court has passed the impugned judgment and order dated 21.11.2020.

7. Sri Kshitij Shailendra, learned counsel for the appellants, submits that on the matter being remanded back, the lower appellate Court has again decided the appeal without framing points of determination and thus, there is non- compliance of the provisions of Order 41 Rule 31 C.P.C.

8. With the consent of learned counsel for the parties, the following substantial question of law is being framed for determination:

“Whether the judgment of the first appellate Court was consistent with the provisions of Order 41 Rule 31 C.P.C., and if not, the consequences thereof?”

9. The judgment of the first appellate Court dated 21.11.2020 records the issues framed by the trial Court for determination. Then it frames three points for determination. However, a bare perusal of the said points would indicate that they do not at all fall within the valid category for determination and they are too vague and general in nature. The appellate Court notices the fact that the trial Court found Issue Nos. 2, 3, 4, 5, 6 and 7 against the appellants. Thereon, after merely referencing the results of the findings of the trial court on Issue Nos. 2, 3, 4, 5, 6 and 7 the appellate court records its agreement with the judgment of the trial Court.

10. The judgment of the first appellate Court fails to advert to the grounds taken in the memo of appeal. The judgment of the appellate Court is cryptic and has not identified the points which arise for determination and has not returned any independent finding on any issue.

11. It is settled law that the first appellate court being final court of fact must not record mere general expression of concurrence with the trial court judgment, rather it must give reasons for its decision on each point independently to that of the trial Court. Thus, the entire evidence must be considered and discussed in total. Such exercise should be done after formulating the points for determination in terms of the provisions contained under Order 41 Rule 31 C.P.C. and the Court must proce