1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.878 OF 2009 WITH CIVIL APPLICATION NO.3794 OF 2009 Balasaheb S/o Meghaji Shinde ..Appellant V/s Ankush Sahebrao Shinde and another. ..Respondents ------------------------------------------------------ Mr.Y.V. Kakade, Advocate for appellant. Mr.M.R. Sonawane, Advocate for respondent no.1. ------------------------------------------------------ (CORAM : V.R.KINGAONKAR,J.) DATE : 14th December, 2009. PER COURT : 1. By consent, this appeal is heard finally and is being disposed of, at the peremptory stage. 2. The appellant is the original defendant no.2. The respondent no.1 is the original plaintiff. The respondents filed suit (R.C.S. No.197/1966) for recovery of possession in respect of 2 Acres land, which was allegedly encroached by the appellant. He also sought injunction and mesne profits. The suit 2 came to be decreed. The appellant preferred appeal (R.C.A. No.257/2005) against the decree. The appeal has been dismissed by the First Appellate Court. 3. It is not necessary to elaborately consider the rival pleadings and evidence adduced by the parties. Suffice it to say that though the appellant contended that the measurement was carried out in the year 1987 and the boundaries were fixed after about 15 months later on, and the authenticity thereof was unacceptable, yet the relevant question regarding the correctness of the measurement map was not considered by the First Appellate Court. On perusal of the impugned judgment rendered by the First Appellate Court, it is manifest that the same is in flagrant violation of the provisions contained in Order 41 Rule 31 of the Civil Procedure Code. No proper points were framed by the First Appellate Court. The First Appellate Court lost sight of the legal requirements to frame appropriate points for determination as contemplated under Order 41 Rule 31 of the Civil Procedure Code. The First Appellate Court only observed “Considering the arguments advanced both the 3 sides, only point arises for determination of this case is whether the facts findings arrived at by the Civil Judge, Junior Division, Shevgaon in Regular Civil Suit No.197/1996 by Judgment and Decree dated 6.7.2005 requires any interference in this appeal.” 4. The above holdall point does not make out head or tail. It is the duty of the First Appellate Court to frame appropriate points, which are germen to the lis between the parties. The learned District Judge-4 committed patent error by omitting to take into account the relevant grounds of appeal put forth by the appellant and failed to frame points which were required to be formulated. The First Appellate Court did not go in to close quarters of the reasoning of the trial Court nor addressed the rival contentions in appropriate manner as required by the Appellate Court. Under these circumstances, instead of considering the merits, the only proper course open is to remit the matter to the First Appellate Court with direction to frame appropriate points and to decide the appeal afresh on merits thereof. 4 5. In the result, the appeal is allowed. The impugned judgment is set aside. The appeal (R.C.A. No. 257/2005) is restored to its original position. The learned Principal District Judge shall transfer the appeal to some other District Judge than one who decided the same. Thereafter, the learned District Judge shall hear both sides and decide the matter afresh after following due procedure. No costs. The parties are directed to appear in the District Court on 25th January, 2010. 6. In view of the disposal of second appeal, the civil application no.3794/2009 does not survive and hence stands disposed of accordingly. (V.R.KINGAONKAR) JUDGE GAS/sa578.09