JUDGMENT Hon’ble Siddharth, J.—Heard Shri C.K. Rai, learned counsel for the appellant and Shri Suresh Kumar Gupta, learned counsel for the respondents and perused the records. 2. This is plaintiff’s second appeal against the judgment and decree dated 31.8.1988 passed by Sri R.R. Jatav, First Additional District Judge, Etah in Civil Appeal No. 44 of 1987 arising our of judgment and decree dated 4.2.1987 passed by Munsif, Etah decreeing Original Suit No. 317 of 1983 (Satya Deo Misra v. Dal Chand and others) of the plaintiff. 3. Plaintiff instituted a suit for permanent injunction restraining the defendants from interfering with the plaintiff’s possession over the house in suit. 4. Plaintiff’s case is that his grandfather, Nand Ram, had three sons Makkhan, Bhoop Singh and Jhandi; that Bhoop Singh died issueless and Jhandi had one son Bhagwan; that Bhagwan had one son Janki Prasad and plaintiff is grandson of Makkhan; that plaintiff and Janki Prasad have half share each in the ancestral house, boundaries whereof are given at the foot of the plaint; that Janki sold his half share to plaintiff vide registered sale-deed dated 4.10.1978 and thereby plantiff became sole owner of disputed house; that the defendants who claim to have purchased half share of disputed house from Bachchan Lal and Jawahar Lal have no right to interfere with the plaintiff’s possession since Bachchan Lal and Jawahar Lal had no right and title to the disputed house; that Bachchan Lal and Jawahar Lal claimed to be legal heirs of Janki Prasad and hence the suit. 5. Defendants filed their written statement denying the plaint allegations and stating that Janki Prasad was absolute owner of disputed house and plaintiff’s ancestral house was different; that plaintiff has no right and title to the disputed house which is not his ancestral house and he does not have half share therein; that defendants purchased the entire house from Bacchan Lal and Jawahar Lal who were the legal heirs of Janki Prasad and therefore plaintiff has no right of sue; that the number of disputed house is 277 while the number of defendants’ house as per voter list is 276; that number of plaintiff’s house is 278; that all the three houses are different and separate and prayed that the suit may be dismissed. 6. 6. Learned trial Court on the basis of the pleadings of the parties framed the following issues-: 1- Whether the suit is under valued and Court fees paid is insufficient? 2- Whether plaintiff is the owner of the disputed property? 3- To what relief, if any, is plaintiff entitled? 7. Issue No. 1 was decided holding that it has not been pressed by the defendants and therefore decided against them. Issue No. 2 was decided holding that Janki Prasad had half share in the suit property and he rightly sold the same to the plaintiff. Issue No. 3 was decided holding that plaintiff is entitled to the relief claimed and the suit was decreed in his favour. 8. The defendants preferred Civil Appeal No. 44 of 1987 before the lower appellate Court and the lower appellate Court recorded a finding that from the sale-deed executed by Janki Prasad in favour of plaintiff, it is clear that he was owner of the entire house in dispute and not only of half share therein. It found that the recital in the sale-deed cannot be explained by oral statement of the plaintiff. It was found by the lower appellate Court that Janki Prasad sold only half of his share to plaintiff and half of his share remained with his legal heirs Bachchan Lal and Jawahar Lal who executed sale-deed of the same in favour of defendants and therefore plaintiff cannot claim ownership of the entire house of Janki Prasad and he is not entitled to injunction against the defendants. Plaintiff had no share in the disputed house prior to the sale-deed by Janki Prasad who was in separate ownership and possession of the same. Lower appellate Court further found that in the khasra made on the basis of partition between the parties on 4.5.1899, there were two plots of Jhandi, viz., plot No. 326 and 327. Makkhan, grandfather of plaintiff was not shown as co-sharer in these plots like in plot No. 306. It found that Janki Prasad was in possession of the disputed house in 1978. It recorded the conclusion that plaintiff was not sole owner in the possession of the disputed house and his suit could not have been decreed by the trial Court against the defendants and set aside the decree of the trial Court. 9. It found that Janki Prasad was in possession of the disputed house in 1978. It recorded the conclusion that plaintiff was not sole owner in the possession of the disputed house and his suit could not have been decreed by the trial Court against the defendants and set aside the decree of the trial Court. 9. This second appeal has been preferred against the judgment and decree of the lower appellate Court and it was admitted on 5.12.1988 on the following substantial questions of law-: a- Whether the suit of the plaintiff-appellant could be dismissed by the lower appellate Court without reversing the finding of the trial Court? b- Whether the vendors of the defendant-respondents, that is, Bachchan Lal and Jawahar Lal, were not the heirs of Janki Prasad, who was one of the co-sharers of the plaintiff-appellant? c- Whether the Bandobasti entries recorded in the khasra partition of the year 1899 recording the plaintiff-appellant’s ancestor and the ancestor of Janki Prasad as co-owners of plot No. 306, on which the house in dispute is situated, could be discarded only on the ground that they were not shown as co-sharers in plots No. 326 and 327? d- Whether without reversing the finding with regard to the pedigree set up by the plaintiff-appellant in the plaint and found to be correct by the trial Court, the lower appellate Court could dismiss the suit? 10. After hearing the counsel for the parties, the following facts are apparent from record-: 11. Trial Court while deciding the issue No. 2 on the basis of oral and documentary evidence has recorded finding of fact that Janki Prasad had 1/2 share in the disputed property, as such after execution of sale-deed dated 4.10.1978 by Janki Prasad in favour of plaintiff Satya Deo the plaintiff is owner in possession of disputed property, but lower appellate Court without reversing the finding of fact recorded by trial Court has illegally allowed the civil appeal and dismissed the plaintiff’s suit. 12. Trial Court also recorded finding of fact that defendants are deriving title from Bachchan Lal and Jawahar Lal who are not proved to be owner of disputed property, as such defendants cannot be held to be owner of disputed property, this finding of fact has not been reversed by Lower Appellate Court while allowing the Civil Appeal. 13. 12. Trial Court also recorded finding of fact that defendants are deriving title from Bachchan Lal and Jawahar Lal who are not proved to be owner of disputed property, as such defendants cannot be held to be owner of disputed property, this finding of fact has not been reversed by Lower Appellate Court while allowing the Civil Appeal. 13. Bandobasti entries recorded in Khasara partition of the year 1899 (Paper No. 43Ga1) copy of Zild Bandobast of 1347 Fasali Khatauni (Paper No. 45Ga-1) and copy of Zild Bandobast 1901 (Paper No. 46Ga1) recording ancestor of plaintiffs-appellant and ancestor of Janki Prasad as co-owner of plot No. 306 over which house in dispute is situated has been discarded by Lower Appellate Court on the ground that they were not shown as co-sharers in another plot No. 326 and 327. 14. Lower Appellate Court has not reversed the finding of fact recorded by Trial Court on the pedigree set up by the plaintiff appellants in the plaint and found to be correct by trial Court. 15. The judgment of the lower appellate Court is the judgment of reversal and in the case of 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 T.C. in arriving at the findings in question. The L.A.C. before reversing a finding of fact has to bear in mind the reasons ascribed by T.C. The Apex Court relied and followed an earlier decision of Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, (1906) 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 WN 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 Patna 67, observed that whenever judgment of L.A.C. is a judgment of reversal, it is the primary duty of L.A.C. while reversing findings of T.C. to consider the reasons given by T.C. and those reasons must also be reversed. Unless that is done, judgment of L.A.C. 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 T.C. recorded its findings but L.A.C. had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by L.A.C. without appreciating findings of T.C. 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. It is clear from the records that the lower appellate Court has neither considered the findings of the trial Court regarding the pedigree nor reversed the same and has recorded its own findings. It has also not considered the findings regarding the documentary evidence considered by the trial Court arriving at its conclusion. 19. Finally, the judgment of the lower appellate Court is in violation of the provisions of Order 41 Rule 31 C.P.C. which mandates that the appellate Court shall frame points of determination, its decision there on and reasons for the decision. 20. In order to decide the point in issue, it will be appropriate to go through the provisions of Order 41 Rule 31 CPC, which reads as under : “31. 20. In order to decide the point in issue, it will be appropriate to go through the provisions of Order 41 Rule 31 CPC, which reads as under : “31. Contents, date and signature of judgment—The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 21. The word used by the legislature under Order 41 Rule 31 CPC are to the effect that the order of the appellate Court shall be in writing and shall state (a) the point for determination; so the question which is to be considered whether intention of the legislature while indicating the provisions as provided under Order 41 Rule 31 (a) CPC is mandatory in nature or not ? 22. The word ‘shall’ has been interpreted by Hon’ble the Apex Court in the case of Pesara Pushpamata Reddy v. G. Veera Swamy and others, 2011(3) SCR 496, after taking into consideration the principle of Statutory Interpretation, 12th Edition, 2010 at page 406-407, held as under : “The use of word ‘shall’ raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction.” 23. In the case of Khub Chand v. State of Rajasthan, Hon’ble the Apex Court held that the term “shall” in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. (See M/s. Sainik Motors, Jodhpur and others v. State of Rajasthan). 24. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. (See M/s. Sainik Motors, Jodhpur and others v. State of Rajasthan). 24. In addition to the above said facts, Order 41 Rule 31 CPC had come up for consideration in the case of Gupta Nand v. Behari Lal and others, wherein this Court has held that the provisions of the law are mandatory and the reason is obvious. A Judge is bound to give the points for decision and the reasons for the decision thereon in order to enable the Court of appeal to see that the judge whose findings on facts are binding on this Court, has put properly before him the points at issue and has decided them. (See Baban Singh v. Jaimangal Singh). 25. And Hon’ble three Judges of Hon’ble the Apex Court in the case of Thakur Sukhpal Singh v. Thakur Kalyan Singh, has held as under : “Learned counsel for the appellant does not dispute these propositions. His contention, however is that even if the appellant does not address the Court, the Court must go through the record and the judgment under appeal and come to its own conclusion about the correctness of the decision under appeal. Support for this contention is sought from the provisions of R. 32 of O. XLI which reads : “The judgment of the Appellate Court shall be in writing and shall state - (a) the points for determination; (b) the decision there on; (c) the reasons for the decision; and, (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 26. It is urged that the judgment of the appellate Court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate Court cannot do till it has gone through the record and considered the entire matter on record including the judgment under appeal. The matters have to be in the judgment when points in dispute between the parties are raised before the appellate Court. The matters have to be in the judgment when points in dispute between the parties are raised before the appellate Court. If no such points are raised for consideration, the appellate judgment cannot refer to the points for determination in its judgment and, when there be no points raised for determination, there can be no decision thereon and no reasons for such decision. Such is the position when the appellant does not address the Court and does not submit anything against the decision of the Court below. The memorandum of appeal does contain the grounds of objection of the decree appealed from, without any argument or narrative as laid down in sub-r (2) of r. 1, O. XLI. Such grounds cannot take the place of the points for determination contemplated by r. 31. Not unoften certain grounds of objection raised in the memorandum of appeal are not argued or passed at the hearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgment at all. It is for the appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. He cannot just raise objections in his memorandum of appeal and leave it to the appellant Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate Court itself to find out that the points for determination can be and then proceed to give a decision on those points. 27. The Privy Council observed in Mt. Fakrunisa v. Moulvi Izarus “In every appeal it is incumbent upon the appellants to show reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lord-ships are unable to find that this duty has been discharged.” With respect, we agree with this and hold that it is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate Court can fully contain all the various matters mentioned in Rule 31, Order XLI.” 28. In the case of Girijanandini v. Bijendra Narain, Hon’ble the Apex Court has held as under: “The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of 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.” 29. However, in the case of Girijanandini (Supra), Hon’ble the Apex Court had not considered the judgment rendered by three Judges Bench of Hon’ble the Apex Court in the case of Thakur Sukhpal Singh (Supra). 30. In the case of Santosh Hazari v. Purushottam Tiwari (Deceased) by Lrs., Hon’ble the Apex Court has held as under : “A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising alongwith the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or 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 (See Girijanandini Devi and others v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. 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. 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. Smt. Narayani Bai and others, AIR 1983 SC 114 ). 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. Smt. Narayani Bai and others, AIR 1983 SC 114 ). 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 Judges 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.(See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and others, AIR 1951 SC 120 ). Secondly, 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. 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.” 31. In the case of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and others, Hon’ble the Apex Court has held as under : “The obligation is cast not only on the Trial Court but also on the Appellate Court. In the case of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and others, Hon’ble the Apex Court has held as under : “The obligation is cast not only on the Trial Court but also on the Appellate Court. In the event of the suit having been decreed by the Trial Court if the Appellate Court interferes with the judgment of the trial Court the judgment of the Appellate Court should precisely and specifically set out the reliefs granted on the modifications, if any, made in the original decree explicitly and with particularity and precision. Order XLI, Rule 31 of the CPC casts an obligation on the author of the appellate judgments to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled.” 32. In the case of G. Amalorpavam and others v. R.C. Diocese of Madurai and others, Hon’ble the Apex Court after taking into consideration the law laid down by Hon’ble the Apex Court in the cases of Girijanandini (Supra) and Sanotsh Hazari (Supra) while interpreting the provisions as provided under Order 41 Rule 31 C.P.C. has held as under : “The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate Court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. It is no doubt desirable that the appellate Court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate Court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate Court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.” 33. In the case of Bala Devi (Smt.) v. Mukhtyar Singh, 2017 (2) ARC 363, this Court held that First Appellate Court must decide the appeal giving adherence to the statutory provisions of Order XLI Rule 31 Code of Civil Procedure. 34. In view of the legal position, the judgment of the lower appellate Court cannot be sustained and is hereby set aside. The case is remanded back to the lower appellate Court for deciding the civil appeal of the defendants again in accordance with law within a period of six months from the date fixed for appearance of the parties. 34. In view of the legal position, the judgment of the lower appellate Court cannot be sustained and is hereby set aside. The case is remanded back to the lower appellate Court for deciding the civil appeal of the defendants again in accordance with law within a period of six months from the date fixed for appearance of the parties. The parties are directed to appear before the Court below on 06 August, 2018.Office shall send back the record of the case to the lower appellate Court forthwith. 35. The second appeal is allowed. However, parties shall bear their own costs.