JUDGMENT: 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 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 appellate Court downplayed the concept of an `admission in evidence' to use it against the appellants-plaintiffs?” 7. As to Point Nos. (i) & (ii) : The principles of law are stated by Supreme Court in AIR (38) 1951 SC 120 -Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh & ors. (ii) Whether the lower appellate Court downplayed the concept of an `admission in evidence' to use it against the appellants-plaintiffs?” 7. As to Point Nos. (i) & (ii) : The principles of law are stated by Supreme Court in AIR (38) 1951 SC 120 -Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh & ors. and the extracted portions from para 7 and 15 thereof are as under : “[7] The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse the finding of fact arrived at by the trial Judge. The rule is- and it is nothing more than a rule of practice- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.” 8. In the case of Santosh Hazari v. Purushottam Tiwari (deceased) by L.Rs. - (2001) 3 SCC 179 , the aforesaid principle was reported by Supreme Court in para 15 thus : “While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (see Madhusudan Das v. Narayanibai). The rule is and it is nothing more than a rule of practice- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (see Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while reversing the 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. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” 9. In the case of Sidheshwar Singh & ors. v. Bajrangi Singh & ors. In the case of Sidheshwar Singh & ors. v. Bajrangi Singh & ors. - AIR 1984 Patna 287 a learned Single Judge of that Court in para 11 thereof states thus: “The legislature has entrusted a very important duty to the first appellate court and it is for that Court to decide finally on a question of fact on which the disposal of the suit may depend but it must appear from the judgment of the lower appellate court that it has made honest endeavour to make a proper appraisement of the merits of the case put forward by the parties. It must appear from the judgment itself that the Court of Appeal below has considered the reasonings given by the trial Court as well for coming to the contrary conclusions. In a case of reversal, it is all the more important for the Court of Appeal below to consider the evidence and also reasons of the trial Court and thereafter to come to its own reasons for not agreeing with the finding of the trial Court and there must be sufficient discussion to show that it has applied its own mind on the evidence on the record. It is not always necessary that the Court of Appeal below should deal with each and every reason given by the trial Court or discuss in detail or cover in detail the same ground as has been done by the trial Court. It is enough, if from a perusal of the lower appellate court's judgment one comes to the conclusion that the lower appellate court has fully and adequately applied its mind to all the relevant materials and evidence in connection with a particular issue and has given its own reasons which set at naught the reasons of the trial Court and if it then reverses the finding of the trial Court, it is a proper discharge of duty.” 10. Though not wholly relevant, it is also necessary to mention the following extracted portion from para 12 of the judgment in AIR 1967 SC 1124 – Girijanandini Devi v. Bijendra Narain Choudhary. “It is not the duty of the appellate court when it agrees with the view of the trial Court on the evidence or to reiterate the reasons given by the trial court. “It is not the duty of the appellate court when it agrees with the view of the trial Court on the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.” 11. At the outset, I find from the tenor of the judgment authored by the lower appellate court that it has acted on the admission in the cross-examination of the plaintiff in para 5. The Court has extracted the admission which I quote below in English : “It is true that same area of land is in my possession which was given in my possession by Chitnavis when the sale-deed was executed.” However, in para 9 the lower appellate court recorded the above admission saying that the plaintiff is in actual possession of the land which was purchased from Chitnavis. Thus, there is clear error on the part of the lower appellate court in introducing the word “purchased” from Chitnavis. But the alleged admission shows that he is in possession of the land in which he was put in possession at the time of sale-deed. The above admission does not mean that he had purchased the same area in which he was put in possession. At any rate, the alleged admission cannot be read in isolation with the case of the plaintiff, namely that suit land was not measured when purchased in 1953-54 but was measured in the year 2002. In Nagubai v. Shama Rao- AIR 1956 SC 593 and Chikkam Koteswara Rao v. Chikkam Subbarao & ors. - AIR 1971 SC 1542 the Supreme Court emphasised that before an admission is presumed to be true against the party making it, it must be shown that there is a clear and unambiguous statement by the party making it. An admission is only a piece of evidence and the weight to be attached depends upon the circumstances under which it has been made. Before the right of a party can be considered to have been defeated on the basis of an alleged admission made by him, the implication of statement must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. The lower appellate court was impressed with the admission that the plaintiff did not indicate the boundaries of encroached portion in his plaint. There should be no doubt or ambiguity about the alleged admission. The lower appellate court was impressed with the admission that the plaintiff did not indicate the boundaries of encroached portion in his plaint. That was a matter to be found from the evidence of surveyor or the measurement map etc. and mere non-mention thereof in plaint would not be enough to refuse consideration. 12. It is further seen that the Court has treated P.W.2 Bhagwan Ruikar-Surveyor as expert witness. The lower appellate court went on to discuss that the evidence of expert witness is not binding on the court. In the first place, the use of word “expert witness” for P.W.2 Surveyor is misconceived. Bhagwan Ruikar (P.W.2) is the Taluka Inspector of Land Records whose job is to measure the lands after giving notice to all concerned cultivators, prepare a map and hand it over to the Court/party. The said witness was an ordinary witness for the plaintiff and there is no reason why P.W.2 Surveyor should be called as expert witness. Like other witnesses, his evidence could be accepted or rejected. That apart, the evidence of P.W.2 Bhagwan was discussed by the trial Court at length in tune with the evidence of other witnesses and documents produced by the plaintiff and defendant and then the trial Court came to a certain conclusion. But the lower appellate court rejected evidence of P.W.2 Bhagwan without recording any reason except saying that he was expert witness and evidence of expert witness does not bind on the Court. In other words, the lower appellate court did not discuss the evidence of P.W.2 Bhagwan which was discussed by the trial Court in details in para 8, 9 and 11 of its judgment. Not only that the lower appellate court has not recorded any reason to differ with the finding of facts recorded by the trial Court in the aforesaid paragraphs. 13. There is another aspect regarding alleged admission spoken of by the lower appellate court. The aspect is that the alleged admission or oral admission of the parties could not have been placed at a high pedestal than the evidence of P.W.2 Bhagwan- surveyor, map sale-deed and the 7/12 extract. 13. There is another aspect regarding alleged admission spoken of by the lower appellate court. The aspect is that the alleged admission or oral admission of the parties could not have been placed at a high pedestal than the evidence of P.W.2 Bhagwan- surveyor, map sale-deed and the 7/12 extract. Assuming but not admitting that there was some stray admission, the endeavour of the Court should be to find out the truth and that is why the alleged admission could not have been utilized to throw out the plaintiff from the Court. This Court now thinks that it would be improper to discuss the evidence of the witnesses or other material on record any further, lest the same should influence the lower appellate court and particularly when this Court is of the opinion that the Regular Civil Appeals are required to be remitted for fresh hearing and disposal in accordance with law. The upshot of the above discussion is that the lower appellate court has erred in not following the dictum laid down by the apex court. The points (i) and (ii) will have to be answered in affirmative. 14. In the result, I make the following order. ORDER (i) Second appeal Nos. 231/11 and 307/11 are partly allowed. (ii) The judgments and decree in Regular Civil Appeal Nos. 66 of 2007 and 67 of 2007 dated 7/12/2010 are set aside. The proceedings of both the appeals are remitted to the lower appellate court for fresh decision in the light of the observations made by this Court, as above. (iii) Parties to these appeals shall appear before the lower Court on 19/12/2011. The lower appellate court shall decide the appeals as expeditiously as possible, and in any case, within one year from the date of receipt of Writ of this Court. (iv) There shall be no order as to costs. Appeals partly allowed.