JUDGMENT : 1. Heard Shri Kshitij Shailendra, learned counsel for the appellants and Shri Swapnil Kumar, learned counsel for the respondents. 2. This is defendant's second appeal against the judgment and decree dated 23.08.2017 passed by Additional District Judge/ Fast Track Court, Agra in Civil Appeal No. 49 of 2017 and judgment and decree dated 18.02.2017 passed by Additional Civil Judge (Senior Division), Court No.-5, Agra in Original Suit No. 5 of 2008 (Kumari Asha Nigam v. Ajay Nigam & another). 3. The plaintiff instituted original suit against the defendants praying for a decree of mandatory injunction as well as a decree for pendente lite and future mesne profits at the rate of Rs. 10,000/- per month till delivery of actual possession in respect of accommodation situated at the first floor and ground floor forming part of house no. B-10-A (Nagar Nigam No. 36/160) situated at New Agra, Agra. 4. Plaintiff's case is that she is owner of house no. B-10-A, Nagar Nigam No. 36/160, situated at New Agra, Agra; that the aforesaid property is two storied and was purchased by her vide sale deed dated 19.07.1971; that defendant no. 1, Ajay Nigam, is her nephew and defendant no. 2 is his wife; that the defendants are in possession of two rooms situated on the first floor and the remaining part thereof is lying vacant; that defendants are using the drawing room, latrine, bathroom, kitchen and side gallery situated on the ground floor and there possession is in the capacity of licensees; that defendants use abusive language against her and the plaintiff and defendants had entered into scuffle with her many times; that defendants have pressurized the plaintiff to give the disputed property to them to which the plaintiff had not agreed and incensed by the same they have threatened the plaintiff of dire consequences; that defendants have no right and title over the disputed property and their license has been canceled by the plaintiff by notice dated 22.11.2007 but they have not vacated the same and she is entitled to get Rs. 10,000/-towards mesne profit from the defendants; that the period of notice has come to an end of 25.11.2007 but the defendants have not vacated the disputed house therefore the suit is being instituted for the reliefs prayed. 5. 10,000/-towards mesne profit from the defendants; that the period of notice has come to an end of 25.11.2007 but the defendants have not vacated the disputed house therefore the suit is being instituted for the reliefs prayed. 5. Defendants filed their written statements admitting their possession over the suit property but denied any use of abusive language against the plaintiff and extension of any threat to her; that defendant no 1 claimed that he is residing in the disputed property since his childhood and defendant no. 2 came in possession over the same after her marriage with the defendant no. 1 in 2006; that defendants denied any receipt of notice terminating their license and stated that plaintiff has no right to dispossess them and they are not liable to pay Rs. 10,000/- per month as mesne profit to the plaintiff; that in case the court comes to the conclusion that the defendants are in unauthorized possession over the suit property then the plaintiff should institute a suit for taking possession from them in accordance with law and the present suit alleging them to be unauthorized occupants is not maintainable; that the suit has been instituted as a counter blast to the Criminal Case no. 2479 of 2004 and it is barred by the Sections 38, 39 and 41 of Specific Relief Act; that plaintiff is teacher in Anglo Bengali Girls Inter College, Agra since 1966 and is unmarried; that she used to live with her father, mother and brother jointly at Muzaffarkhan, Agra; that the financial condition of plaintiff was not such that she could have purchased the property in 1971; that plaintiff was member of joint hindu family and the disputed property was purchased from the fund of joint hindu family and was purchased in the name of plaintiff since there was requirement of further space; that the defendant no. 1 stated that the mother of the plaintiff and his grand-mother informed him about the aforesaid facts; plaintiff used to demand dowry from the defendant no. 2 and defendant no. 1 used to oppose the same and therefore in October, 2007 plaintiff compelled defendant no. 2 to leave the property and her father filed the Criminal Case no. 1 stated that the mother of the plaintiff and his grand-mother informed him about the aforesaid facts; plaintiff used to demand dowry from the defendant no. 2 and defendant no. 1 used to oppose the same and therefore in October, 2007 plaintiff compelled defendant no. 2 to leave the property and her father filed the Criminal Case no. 3479 of 2007 at Lucknow; that for withdrawing the aforesaid case, this suit has been instituted; that the defendants are not the licensee of the plaintiff and the suit of the plaintiff is not maintainable and is required to be dismissed with special costs under Section 35-A C.P.C. 6. During pendency of the suit, plaintiff got the plaint amended by stating that the property no. B-10-A has Nagar Nigam No. 36/160. Defendants filed their written statement stating that Nagar Nigam No. 36/160 has no concern with property no. B-10-A rather it is concerned with property no. 40B/3 as clear from the sale deed. Defendant further stated that the boundaries of property no. B-10-A and property Nagar Nigam No. 36/160 do not match and plaintiff is not the owner thereof. 7. On the basis of the pleadings of the parties the trial court framed the following issues: 1. Whether plaintiff is the sole owner of the disputed house ? 2. Whether defendants are residing in the disputed house as licensees? 3. Whether the license of defendants have been canceled by notice dated 22.11.2007? 4. Whether plaintiff is entitled to get mesne profit from the defendants? 5. Whether the suit is undervalued and the court fees paid is insufficient? 6. Whether the suit of the plaintiff is barred by Section 39 and 41 of Specific Relief Act? 7. To what relief is the plaintiff entitled? 8. Whether the suit is barred by Order 7, Rule 3 C.P.C.? 9. Whether the suit is barred by Order 15, Rule 4 C.P.C? 8. The parties brought on record number of documentary evidences. Plaintiff filed her affidavit, Paper No. 60Ka in support of her plait averment in evidence. On behalf of defendant no. 1 filed his affidavit, Paper No. 87Ka in evidence and was examined as D.W.-1. 9. Whether the suit is barred by Order 15, Rule 4 C.P.C? 8. The parties brought on record number of documentary evidences. Plaintiff filed her affidavit, Paper No. 60Ka in support of her plait averment in evidence. On behalf of defendant no. 1 filed his affidavit, Paper No. 87Ka in evidence and was examined as D.W.-1. The other witnesses examined on behalf of defendants were D.W.-2, Rinki Gupta; D.W.-3, Guru Charan Arora; D.W.-4, Sri Prem Dayal; D.W.-5, Arvind Kumar Srivastava; D.W.-6, Guru Bhajan Singh; D.W.-7, Guru Bhajan Singh again; D.W.-8, Vineet Agarwal, Court Witnesses, C.W.-1, Shiv Dutt Kumar and C.W.-2, Jagnarayan Singh, were also examined in the suit. 9. The trial court decided issue no. 1, whether plaintiff is the sole owner of the disputed property, in favour of plaintiff after consideration of the documentary as well as oral evidence on record. The trial court found that the plaintiff purchased the property on 19.07.1971 from the her own resources and from the perusal of the sale deed there is no mention of the property being purchased from the joint hindu family fund. The burden of proving that the property in dispute was purchased from the joint hindu family fund was on the defendants which they have not proved. Defendant no. 1 has admitted that the suit property is property no. B-10-A Municipal number whereof is 36/160. None of the member of the joint family has appeared in the suit to make any claim over the property. The source of income of plaintiff was proved from her teaching in girl's school. The defendant's case that the suit was instituted by the plaintiff for pressurizing the defendants to withdrawn the Criminal Case No. 3479 of 2007 was not found to be correct. The case laws led by the defendant on the issue were considered by the court below and thereafter it reached the conclusion that the plaintiff is the owner of the disputed property on the basis of sale deed dated 19.07.1971. 10. Issue no. 2, whether defendants are residing as licensees in the disputed house, was decided in favour of plaintiff by the trial court. The question that the defendant no. 1 is residing in the property since childhood and therefore license cannot be given to a minor was considered by the trial court. It recorded the finding that defendants have no right and title in the suit property. The question that the defendant no. 1 is residing in the property since childhood and therefore license cannot be given to a minor was considered by the trial court. It recorded the finding that defendants have no right and title in the suit property. There is no relation of lessee-lessor or landlord-tenant between them therefore he is residing in the suit property with the consent of the plaintiff and the only conclusion can be drawn that the defendant no. 1 is residing with the plaintiff with her consent and on the basis of the Section 52 of the Easement Act that defendants are licensees which can be expressed or implied as per Section 54 of the aforesaid act. 11. Issue no. 3, whether the license of the defendants was terminated by the notice dated 22.11.2007, was decided in favour of plaintiff by the trial court. It recorded the finding that the notice was duly served by way of refusal by the defendants and the averment to the contrary by the defendant is incorrect. The court below has also considered the decisions of the courts which have provided that the termination of license should not be viewed very technically and it can be terminated orally also. 12. Issue no. 6, whether the suit of the plaintiff is barred by Section 39 and 41 of the Specific Relief Act was decided in favour of plaintiff holding that the plaintiff sent the notice dated 22.11.2007 to the defendants terminating their license and the suit was instituted on 2.01.2018 within short time and therefore the suit is not barred by Section 39 and 41 of the act aforesaid. 13. Issue no. 5, regarding valuation and court fees was decided in favor of plaintiff. 14. Issue no. 4, regarding pendente lite and future mesne profit, was decided in favour of the plaintiff holding that the defendants are in possession over the entire first floor and three rooms on the ground floor and also in possession over the kitchen, latrine, bathroom, gallery, etc., on the ground floor jointly and defendant no. 2 is running a beauty parlor in one room and therefore they are liable to pay Rs. 10,000/- per month for use and occupation of the aforesaid portion of the property. 15. Issue no. 2 is running a beauty parlor in one room and therefore they are liable to pay Rs. 10,000/- per month for use and occupation of the aforesaid portion of the property. 15. Issue no. 8, whether suit is barred by Order 7, Rule 3 C.P.C., was decided holding that the property in dispute is identified as per decision of issue no. 1. 16. Issue no. 9, regarding suit being barred by Order 15, Rule 4 C.P.C., was decided holding that the suit is not barred by Order 15, Rule 4 C.P.C., since the certified copy of the sale deed of the suit property has been brought on record. 17. Issue no. 7, regarding relief to the plaintiff, was decided holding that the plaintiff is entitled to the reliefs prayed and her suit was decreed by the trial court. 18. Aggrieved by the judgment of the trial court the defendants preferred Civil Appeal before the lower appellate court which has confirmed the decree of the trial court and dismissed the civil appeal of the defendants and hence this second appeal has been preferred by the defendants. 19. Learned counsel for the defendants-appellants has submitted that the lower appellate court has enumerated the grounds of appeal in the judgment in the opening paragraphs but no points of determination have been framed on their basis. The lower appellate court has framed only one very general point of determination as to whether decree of the trial court is erroneous or not. If it is erroneous, then whether there is any need of its modification or of its setting aside, if yes, then to what extent? The submission is that the requirements of Order 41, Rule 31 have not been complied by the court below which is mandatory and being the first appellate court, it was required to asses the evidence on record in the light of the grounds raised in the civil appeal and then finding should have been recorded on each and every point. 20. He has further submitted that the trial court did not consider that the sale deed produced by the plaintiff mentioned the property no. 40-B/3, municipal number 36/160, New Agra, Agra but in the plaint the relief was sought regarding property no. B-10-A municipal number 36/160. 20. He has further submitted that the trial court did not consider that the sale deed produced by the plaintiff mentioned the property no. 40-B/3, municipal number 36/160, New Agra, Agra but in the plaint the relief was sought regarding property no. B-10-A municipal number 36/160. He has further submitted that at the stage of hearing of the suit the plaint was amended and “Nagar Nigam No. 36/160” was mentioned against the property no. B-10-A, when there was no evidence to established that the property no. 40-B/3 is property no. B-10-A and their common municipal no. is 36/160. 21. Counsel for the appellants has vehemently argued that there was no evidence on record to prove that the plaintiff had the capacity to purchase the disputed house for a sale consideration of Rs. 36,000/- in the year 1971, when she could only prove her income from 1966 as teacher of a girl's school of Rs. 175 plus Rs. 40 per month from 1962 to 1977 which cannot exceed even Rs. 13,000/-and the trial court as well as the appellate court has not recorded any finding in this regard. The courts have conveniently avoided the recording any finding in this regard. 22. The finding of the trial court is that too technical view of the procedure of revocation of license cannot be taken is not mentioned in Section 62 of the Easements Act. 23. Finally, arguments regarding the opportunity of depriving the defendants from rebutting the documents filed by the plaintiff and the admissibility of documents filed by plaintiff have also been raised. 24. Per contra, counsel for the plaintiff-respondent has argued that the trial court as well as the lower appellate court have recorded concurrent findings of fact after consideration of the material on record. The argument of the counsel for the appellant that the lower appellate court did not framed the points of determination in the appeal as per the mandate of Order 41, Rule 31 C.P.C. is incorrect. The lower appellate court has framed the point of determination and has considered the finding of the trial court issue wise and after consideration of the issues again has recorded the findings of confirmation which cannot be faulted with. 25. The lower appellate court has framed the point of determination and has considered the finding of the trial court issue wise and after consideration of the issues again has recorded the findings of confirmation which cannot be faulted with. 25. He has further submitted that the court below have recorded concurrent findings of fact regarding all the argument raised by the counsel for the defendants-appellants and this court in exercise of its power under Section 100 C.P.C. cannot interfere with the same. 26. Counsel for the plaintiff-respondent has submitted that both the courts below have considered all the arguments raised by the counsel for the defendants-appellants before this court. He has relied upon the judgment of this court in the case of Vijay Kumar Gupta v. Moolchand Gupta (dead), through LRS & Another 2012 (5) AWC 5108 , where in the allegation of abusing torturing misbehaving and committing cruelty by the defendant sons was leveled by the plaintiff father and this court held that the conduct of the sons cannot be pardoned and they do not deserves any mercy and the second appeal preferred by defendants-son was dismissed. 27. Further reliance has been placed on the judgment of Calcutta High Court in the case of Ram Narayan Ray vs. Aloke Ray passed in second appeal no. 597 of 2008 on 04.06.2013, wherein the court held that the son living in the house of his father was at the most gratuitous licensee in the house of his father who was undisputedly the absolute owner of the property and therefore once his license has been revoked, the son has no right to live in the property. 28. Learned counsel for the defendant-appellant has relied upon certain other judgment regarding service of notice, scope of second appeal and Section 39 and 41 of the Specific Relief Act which are not required to be considered in view of the order being passed in this appeal. 29. After hearing rival contentions, this court finds that the judgment of the lower appellate court is neither in accordance with Order 41, Rule 31 C.P.C., nor the issues decided by the trial court have been considered in the light of the grounds raised in appeal. A very cursory and general point of determination was framed by the lower appellate court and even the same has not been answered anywhere in the judgment. A very cursory and general point of determination was framed by the lower appellate court and even the same has not been answered anywhere in the judgment. The issues decided by the trial court have only been reiterated none of the issues have been discussed with reference to the objections raised on behalf of the defendants. Such a cursory approach of the appellate court, which is the first court of appeal and can very well go into any question of law and fact both raised before it, cannot be justified. 30. In view of the above the judgment and decree passed by the lower appellate court is set aside. The matter is remanded for decision of the Civil Appeal of the defendants-appellants in accordance with law within a period of three months. The parties are directed to appear before the lower appellate court on 03.10.2018. The lower appellate court shall hear and decide the Civil Appeal within three months from 03.10.2018 and no adjournment shall be granted to the defendants-appellants on cost of less than Rs. 1,000/-. 31. This second appeal stands allowed to the extent stated above. 32. Parties shall bear their own costs.