JUDGMENT Hon’ble Sudhir Agarwal, J.—The respondents were issued notices to engage another counsel vide Court’s order dated 7.11.2012, pursuant whereto notices sent to respondents 1 and 2 on 22.11.2012. Perused office report dated 13.2.2013. Service is deemed sufficient. None has put in appearance on behalf of respondents, hence I proceed to hear the appeal ex parte against respondents. 2. The following two substantial questions of law were formulated by this Court while admitting appeal: A. about the interpretation of the sale-deeds which are the documents of title of the plaintiff-respondent and the defendant-appellant. B. the lower appellate Court has not considered material evidence on record which was relied upon by the trial Court even though it was passing an order of reversal. 3. Besides above, during course of hearing, in my view, another substantial question of law has arisen, which is: C. Whether lower Appellate Court has rendered its judgment consistent with Order XLI, Rule 31 C.P.C.?” 4. The plaintiff-respondent No. 1 Hanuman Prasad instituted suit No.88 of 1973 for demolition of construction raised by defendants in plot No. 71/1, area 3 decimal, shown with letters ‘Ka’, ‘Kha’, ‘Ga’ and ‘Gha’ in the site plan and also for decree of permanent injunction restraining defendants from interfering with possession of plaintiff on the land in suit. As an alternative relief, possession of the land in question was also sought. 5. The plaint case is that, the suit land actually belong to defendant 2. Sheo Balak Ram Tewari, defendant 2, who was in actual possession thereof, had executed a sale-deed in favour of plaintiff and his brother. Founded thereupon, the two became bhumidhar of the suit land and also got possession thereof. The boundary of suit land was given in sale-deed. The western wall, shown with letters Ka, Gha in the site plan, in the plaint, was also included in that area of three decimal, transferred to the plaintiff and his brother. In fact the western wall was constructed by plaintiff over the land it has purchased from defendant No. 2. The plaintiff subsequently learnt that defendant No. 2 executed another sale-deed in favour of defendant No. 1 about the part of the same land which was already sold to plaintiff though he had no right or authority to execute such a sale-deed. The plaintiff subsequently learnt that defendant No. 2 executed another sale-deed in favour of defendant No. 1 about the part of the same land which was already sold to plaintiff though he had no right or authority to execute such a sale-deed. Pursuant thereto, defendant No. 1 has started digging foundation and raising wall though he had no authority to do so and since is interfering in the possession of the plaintiff on the land in dispute, hence necessitated institution of suit. 6. The defence case, in short, was that no cause of action had arisen to the plaintiff. Defendant No. 2 constructed a wall having contact with wall of Satya Narain, which run from south to north towards west and further constructed wall running east to west. The defendant No. 2 executed a sale-deed of part of the land which is three decimal in area of plot No. 73/1 of the plaintiff, but the plaintiff got a wrong boundary written in the sale-deed taking advantage of illiteracy of defendant No. 2. In the sale-deed of plaintiff, northern boundary of house of defendant No. 2 has wrongly been written. The defendant No.2 executed sale-deed in favour of plaintiff from south to north, which was actually agreed between the parties. The defendant No. 2 thereafter executed another sale-deed in favour of defendant No. 1 of the land covering one and half decimal in area which is just towards south of the southern wall of defendant No. 2 and towards north to the land of the plaintiff. The possession was already delivered to defendant No. 1. The plaintiff is not the owner of land Aa, Ba, Sa, Da. 7. The Trial Court formulated nine issues but for the purpose of present case, issues No. 3, 4, 5, 6 and 8 are relevant which read as under: 3. Whether the plaintiffs bhumidhar of 3 decimal land of plot No.73 as alleged? 4. Whether the construction in suit lies in plot No.73? 5. Whether the wall in suit towards West running north-south belongs to the plaintiff? 6. Whether the defendant is bhumidhar of 1-1/2 decimal land of the plot in suit as alleged in the W.S.? 8. Whether the western wall as alleged by the plaintiff lies in 3 decimal land of plot No.73? 8. 5. Whether the wall in suit towards West running north-south belongs to the plaintiff? 6. Whether the defendant is bhumidhar of 1-1/2 decimal land of the plot in suit as alleged in the W.S.? 8. Whether the western wall as alleged by the plaintiff lies in 3 decimal land of plot No.73? 8. Issues No. 3 and 6 were taken together by Trial Court and while deciding issue No. 3 partly in favour of plaintiff that he is bhumidhar of three decimal land in plot No. 73/1, partly it has been decided against him that the said land is not the same as he has claimed in the plaint. Issue No. 6 holding that defendant No. 2 is bhumidhar of half of the plot in suit, as alleged in agreement, was decided in favour of defendant No. 1. The Court while recording finding against plaintiff partly in respect to issue No. 3 gave one of the reason that the area of land Ka, Kha, Ga, Gha is more than three decimal and since it is the own case of plaintiff that he was transferred only three decimal area of the land, the boundary and location of land, as claimed by plaintiff, was not found consistent to his case since the area of land according to the boundary given by plaintiff came to more than three decimal. The Trial Court recorded reasons for taking partial view against the plaintiff in respect to issued No. 3 as under: “..I therefore find that the version of the plff does not appear correct. The learned counsel for plff in his argument contended that it has specifically been given in the sale-deed of the plaintiff that there is house of defendant No.2 towards north. It made therefore clear that the land towards south of the house of defendant No.2 has been sold to the plaintff. If actually the boundary given in the sale-deed is presumed to be correct. The plaintiff should be presumed bhumidhar of the land shown with letters Kha, Ja, Jha, Chha, Ta, Ga also which is in between the road and the land shown with red colour, meaning thereby the land in suit. If actually the boundary given in the sale-deed is presumed to be correct. The plaintiff should be presumed bhumidhar of the land shown with letters Kha, Ja, Jha, Chha, Ta, Ga also which is in between the road and the land shown with red colour, meaning thereby the land in suit. The learned counsel for the plaintiff at the time of spot inspection pointed it out that this land which is in between the road and the land in suit is part of the road P.W.D. This objection has not been raised at the time of disposal of Amin’s report nor there is such pleading. That objection could have been raised at the time of disposal of Amin’s report. Moreover no evidence had been adduced by the plff to prove this fact that this land is part of the road. The learned counsel for the plaintiff further pointed out that there was stone adjacent to the wall Kha, Chha and that had been covered with earth by the defendants. Two persons were called who dug it out but no stone was found there. However, it was found that the pit which was in between the surface of hand pipe and wall Kha, Chha had been filled up with the earth. It was contended that stone was removed by the defendant. Mere possession of earth is not sufficient to accept the contention of the learned counsel for the plaintiff. There was opportunity to the plaintiff to have prayed for local inspection after the submission of Amins report or thereafter but in the absence of any objection on this ground against the Amin’s report, I am not ready to accept the contention of the learned counsel for the plaintiff. In view of the simutation as discussed above. I am of the opinion that if the eastern boundary of the plaintiff is incorrect. There is probability of the same towards another side also and if the boundaries given in the sale-deed of the plff is presumed to be correct, the plaintiff becomes owner of land more than 3 decimal. It clearly goes to establish that the contention of the plaintiff does not appear correct.” 9. There is probability of the same towards another side also and if the boundaries given in the sale-deed of the plff is presumed to be correct, the plaintiff becomes owner of land more than 3 decimal. It clearly goes to establish that the contention of the plaintiff does not appear correct.” 9. Now coming to issue No. 4, the parties agree that construction lies in plot No. 73 but then coming to issue No. 5, the Trial Court recorded a finding that it was constructed by defendant No. 2 observing that there was an admission that this wall was constructed before execution of sale-deed and that being so, question of its construction by plaintiff does not arise. Issue No. 8 was decided in favour of plaintiff observing that site of the western wall is included in three decimal land of plot No. 73. In the result, the Trial Court dismissed the suit. 10. The lower Appellate Court, however, while considering plaintiff’s plea in Civil Appeal No.166 of 1977 has reversed judgment of Trial Court and decreed the suit but the judgment shows that without looking to the reasons given by Trial Court and without reversing findings thereof, it has reversed judgment and decree of the Trial Court. 11. The lower Appellate Court has looked into the fact that plaintiff’s sale-deed with respondent No. 2 was executed on 13.10.1969 and though vendor i.e. defendant No. 2 was a party in the suit but he did not come forward to adduce evidence, it has observed that north boundary described in the sale-deed i.e. Exhibit 1 is actually the house of executant i.e. defendant No. 2. Meaning thereby, land sold in favour of plaintiff started in the north from the foundation of the house of defendant No. 2. Then the southern boundary of the land sold belonged to executant defendant No. 2. The Court observed that if there is some mistake on the part of plaintiff-appellant in extending the western wall Ka, Chha a little further towards south in the land not actually sold to him, that would not affect transfer and this mistake would make no difference at all. The Court observed that if there is some mistake on the part of plaintiff-appellant in extending the western wall Ka, Chha a little further towards south in the land not actually sold to him, that would not affect transfer and this mistake would make no difference at all. Specific reference of northern boundary of the land itself shows that land adjacent of the house of respondent No. 2 was sold to him much before the transfer executed in favour of respondent No. 1 and therefore, the previous transfer must prevail upon the subsequent transfer. 12. Having said so, lower Appellate Court held that land adjacent to the south of defendant No. 2’s house, belong to plaintiff, and findings on these points reproduced in the judgment of Trial Court are hotchpotch and misconceived. Having said so, lower Appellate Court said that plaintiff- appellant shall get three decimal area of land adjacent to the south of house of defendant No. 2, eastern boundary of which would be the land belonging to respondent No. 1. 13. I also find from record that Trial Court has observed that area transferred by sale to plaintiff was only three decimal. If the boundaries given by plaintiff in the plaint so as to cover the land purchased by him is taken to be correct, that would result in extending the area by more than three decimals, which obviously cannot be allowed. On this aspect, learned lower Appellate Court has neither adverted itself nor has reversed this part of the finding of Trial Court and without giving and considering the reasons mentioned in the Trial Court’s judgment has reversed its judgment and decree. Where the total area transferred by vendor to vendee is not in dispute, boundaries mentioned in the instrument have to be looked into in the context of area of transfer by the parties concerned so that total area sold should not increase, particularly when in respect to other part of land, there is another sale-deed with another person. 14. It cannot be doubted that lower Appellate Court has to render the judgment consistent with provision of Order XLI, Rule 31 C.P.C.. The findings recorded and inference drawn as also reasons assigned by Trial Court must have to be reversed by lower Appellate Court after discussing the same and otherwise judgment of reversal cannot be passed. 15. In S.V.R.Mudaliar (Dead) by Lrs. The findings recorded and inference drawn as also reasons assigned by Trial Court must have to be reversed by lower Appellate Court after discussing the same and otherwise judgment of reversal cannot be passed. 15. In S.V.R.Mudaliar (Dead) by Lrs. and others v. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and others, AIR 1995 SC 1607 , the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate Court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by trial Court in arriving at the findings in question. The Appellate Court before reversing a finding of fact has to bear in mind the reasons ascribed by Trial Court. The Apex Court relied and followed earlier decision of Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said: “There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, (1906) 10 Cal.W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as “careful and able”, it was stated that it did not “come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge.” 16. Following the above decision Hon’ble B.L. Yadav, J in Smt. Sona Devi v. Nagina Singh and others, AIR 1997 Pat 67 , observed that whenever judgment of lower Appellate Court is a judgment of reversal, it is the primary duty of Appellate Court while reversing the findings of Trial Court to consider the reasons given by Trial Court and those reasons must also be reversed. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision. 17. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision. 17. The above view has also been followed recently in Jaideo Yadav v. Raghunath Yadav and another, 2009(3) PLJR 529 , wherein the Court said that Trial Court recorded its findings but lower Appellate Court had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by lower Appellate Court without appreciating findings of Trial Court on the concerned issue. The Court then said : “The law is well-settled in this regard that where the judgment of the lower appellate Court is a judgment of reversal it is primary duly of the appellate Court to consider the reasons given by the trial Court and those reasons must also be reversed.” 18. This Court has also followed the same view in Doodhnath and another v. Doodhnath and another, AIR 2006 All 3 . 19. In the sale-deed dated 13.10.1969, boundary of the land sold, to the plaintiff, has been shown as : 20. A reading thereof shows that total area of plot is mentioned as thirty-two decimal out of which three decimal towards eastern side and western to the public road sought to be transferred by vendor, defendant No. 2, to the plaintiff. Meaning thereby, for the purpose of measuring area of three decimal, public road boundary should be taken on the western side to be determining factor and therefrom it should go on the eastern side but then on the south and north, there is field of third party and the house of defendant No. 2 respectively. The house of defendant was already there. It cannot be said that house was constructed without a wall therefore from the wall of defendant No. 2’s house, on the north side to the land in dispute, boundary shall start from north and going towards south up to the land of Satya Narain. The area from Kha to Ga and then towards Ka to Kha commencing point would be the public road and then the total area to the extent of three decimal has to be determined as part of land transferred vide aforesaid sale-deed. The area from Kha to Ga and then towards Ka to Kha commencing point would be the public road and then the total area to the extent of three decimal has to be determined as part of land transferred vide aforesaid sale-deed. Amin’s report contains details of site along measurement, and to the objection filed to the said report by plaintiff in respect to measurement, he has not raised any objection. Meaning thereby, site plan prepared by Amin, paper No. 52 with respect to the measurement etc. has not been shown to be incorrect and that being so, it has to be taken into consideration by lower Appellate Court before passing a reversal decree setting aside Trial Court’s judgment. 21. In the present case, since lower Appellate Court, in my view, has not considered the matter in accordance with law correctly and there is no compliance of Order XLI, Rule 31 C.P.C, questions formulated above are answered in favour of the defendant-appellant. 22. In the result, the appeal is hereby allowed. The lower Appellate Court’s judgment dated 8th March, 1978 is set aside. The matter is remanded to the lower Appellate Court to rehear the parties and decide the appeal afresh. —————