Honble YADAV, J.–Heard. (2). Perused the judgment given by both the courts-below. (3). Instant appeal has been filed against the judgment and decree dated 11.5.1992 passed by learned Additional District Judge, Barmer in Civil Appeal No.5 of 1989 whereby he affirmed the judgment and decree of the Munsif, Barmer dated 1.6.89 in Civil Suit No.63 of 1984. (4). With the consent of the learned counsel for the parties, the present appeal is being finally disposed off at admission stage. (5). Without delineating the facts and circumstances alleged by the plaintiff and denied by the defendants, the present appeal can be disposed off on questions as to whether the learned first appellate court being the last court of fact was required to analyse the evidence documentary and oral intelligently in intelligible manner satisfying this Court in Second Appeal that it has grasped the evidence oral and documentary adduced by the parties ? Whether the aforesaid satisfaction of this Court must appear from the judgment itself? (6). Learned counsel for the appellants Shri Dinesh Maheshwari invited my attention towards the finding recorded by the learned first appellate court to the effect that none of the defendants muster courage to appear in the witness-box to prove their possession whereas Shri Ramesh alias Munna one of the defendants did appear in the witness box to prove their possession. (7). Learned counsel for respondent Shri A.L. Chopra candidly conceeded the aforesaid fact to be true but tried to support the judgment on other grounds. (8). From the aforesaid facts and circumstances of the case on hand, I am fully satisfied that the learned first appellate court without grasping entire oral and documentary evidence on record recorded the findings on issues No.1 to 7 which are not sustainable in Second Appeal. (9). It is well to remember that as a court of first appeal, the findings of fact whereof are binding on this court in second appeal therefore it is duty of that court to come to grip with the evidence led at the trial by the parties with the requisite care and attention and to analyse the evidence and then weigh it, so that, this Court may stand assured that the finding of fact has been arrived at in a proper and judicial manner.
A vague reference to the evidence produced by the parties that it is worthy of credence or otherwise renders no assistance whatsoever to this Court sitting in second appeal. It is because of judgments of this type that a good deal of burden is thrown on this Court in second appeal which is entirely unnecessary and perfec- tly avoidable, if only Judges in the first appellate courts perform their duties in a objective and careful manner in accordance with law. (10). In the vast majority of the cases, which come before this Court, it is impossible to arrive at proper decisions and to give adequate reasons for the same unless all the important evidence led by the parties is carefully marshalled, weighed and then adjudicated. It is true that is not necessary to reproduce the evidence of each of the witness in the judgment. But what is necessary is that the evidence must be carefully analysed with reference to the salient points arising in the case and then weighed in an intelligent and intelligible manner and the fact that the entire material evidence has been so grapsed and weighed must appear from the judgment itself. It may be conceded that a judgment of affirmance may not give the reasons with that elaborate detail which a judgment of reversal may, ordinarily speaking, require. I am of the view that the judgments of the first appellate court must be self-contained and substantially comply with the requirements of O.41 R.31, C.P.C. which is lacking in the present case. The examination of oral evidence with care and attention is missing in the present case. The learned first appellate court has drawn an adverse inference against the defendants holding that none of the defendants muster courage to appear in the witness-box to support their possession over the land in question whereas it goes without saying that in the present case, one of the defendants namely; Ramesh alias Munna did appear in the witness- box to prove their possession. From the aforesaid fact, it is clear that the learned first appellate court has not analysed the evidence with due care and atten- tion. The aforesaid fact is a classic illustration of the fact that the learned first appellate court has affirmed the judgment of learned trial court without grasping the evidence on record. (11).
From the aforesaid fact, it is clear that the learned first appellate court has not analysed the evidence with due care and atten- tion. The aforesaid fact is a classic illustration of the fact that the learned first appellate court has affirmed the judgment of learned trial court without grasping the evidence on record. (11). Consequently, the instant appeal is allowed and the judgment and decree under appeal dated 11.5.92 is hereby set aside. The case is remanded back to the learned first appellate court to decide the appeal afresh after giving opportunity of hearing to the learned counsel for the parties. The cost of appeal here and hereto shall abide the result of the decision of learned first appellate court. (12). Since it is a matter relating to encroachment of alleged public lane, hence both the learned counsel gave an undertaking to inform their clients to rem- ain present before the learned first appellate court on 17th July, 1997 for early disposal of the appeal.