08 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 Tawab Ahmad Ganie ….. Appellant (s) Through: Mr. Nisar Ahmad, Adv. V/s Mst. Saja and Ors. ….. Respondent(s) Through: Mr. Owais Ashraf Shah, Adv. Coram: Hon’ble Mr. Justice Sanjay Dhar, Judge ORDER 26.05.2025 1. Through the medium of present appeal, the appellant has challenged judgment and decree dated 25.04.2025 passed by the learned Additional District Judge, Budgam (hereinafter referred to as 1st Appellate Court) whereby the judgment and decree dated 30.09.2015 passed by the learned Sub Judge, P a g e | 2 RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 Chadoora (hereinafter ‘the trial court’), has been upheld and the appeal filed by the appellant, has been dismissed. 2. Learned counsel for the appellant has contended that the impugned judgment passed by the 1st Appellate Court is mere reproduction of the judgment passed by the trial court. He has contended that while passing the impugned judgment, the 1st Appellate Court has not applied its mind nor has the said court framed points for determination as mandated under Order 41 Rule 31 of Code of Civil Procedure. 3. After having gone through the judgment and decree of the learned trial court, the judgment and decree of the 1stAppellate Court and the grounds of appeal, it appears that following question of law arises for determination: i) Whether it is open to the 1st Appellate court to uphold the judgment and decree of the trial court without re- appreciating the evidence led before the trial court and without framing points for determination in accordance with provisions contained under Order 41 Rule 31 of CPC? P a g e | 3 RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 4. The appeal is admitted to hearing. 5. Issue notice to the respondents 6. Mr. Owais Ashraf, Advocate who is on caveat accepts notice on behalf of the respondents. Caveat is accordingly discharged. 7. Learned counsels for the parties have accorded their consent to hearing of the case at this stage itself on the question of law framed hereinbefore. 8. Heard and considered. 9. A perusal of the impugned judgment and decree passed by the 1st Appellate Court would reveal that the 1st Appellate Court has, after reproducing the judgment of the trial court from page No. 4 up to page No. 57, recorded that the appellant has failed to mention as to how the judgment and decree of the trial court is based on conjectures and surmises. It has been further recorded that it is not mentioned in the memo of the appeal as to how and where the trial court has fallen into error while passing the impugned judgment and decree. The learned 1st Appellate court has, also recorded that P a g e | 4 RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 the counsel for the appellant has failed to pinpoint as to how the judgment of the trial court is bad and as to how the evidence has not been discussed properly by the trial court. The learned 1st Appellate Court has further recorded that evidence led by the parties has been properly appreciated by the trial court, as such, there is no ground to interfere with the judgment and decree of the trial court. 10. I am afraid the approach adopted by the learned 1st Appellate Court is not in accordance with law. Order 41 Rule 31 of Code of Civil Procedure lays down the guidelines as to what should be contained in the judgment of appellate court. As per this provision, the judgment of the 1st Appellate court has to state: a) The points for determination; b) The decision thereon; c) The reasons for the decision; d) Where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. P a g e | 5 RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 11. In the present case, the learned 1st Appellate Court has, not framed points for determination nor any decision thereon has been rendered. The reasons for the decision recorded by the 1st Appellate court are cryptic and mechanical in nature. The 1st Appellate Court being the last court on facts, has to re- appreciate the entire evidence led before the trial court and thereafter frame its own opinion on each issue framed by the trial court. The 1st Appellate Court cannot simply record that there is no ground to interfere in the finding recorded by the trial court without discussing the evidence on record and without assigning reasons for its opinion. 12. In the instant case, a perusal of the memo of appeal filed by the appellant before the 1stAppellateCourt would reveal that it was specifically projected that the evidence of the parties has not been discussed properly by the trial Magistrate. It was also urged in the memo of appeal that the decree is based upon conjectures and surmises and that significance of the will deed executed by the mother of the parties was not appreciated by the trial court. Several other grounds were P a g e | 6 RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 projected in the memo of appeal including the grounds relating to adverse possession and estoppel and applicability of customary law but none of these grounds have been properly dealt with by the 1st Appellate Court with reference to the evidence on record and legal position governing these issues. 13. In view of the foregoing discussion, question of law framed hereinbefore is answered by holding that a judgment and decree passed by the 1st Appellate Court without re- appreciating the evidence led before the trial court and without following mandate of Order 41 Rule 31 of Code of Civil Procedure, is not sustainable in law. 14. In view of the aforesaid answer to the question of law framed by this Court, the impugned judgment and decree passed by the 1stAppellate Court is set aside and the matter is remanded to the learned 1st Appellate Court with a direction to decide the appeal afresh after hearing the parties and after taking note of the observations made hereinabove. P a g e | 7 RSA No. 9/2025 CM No. 3221/2025 Caveat 1118/2025 15. Having regard to the fact that the case is very old, the learned 1st Appellate Court shall do well to decide the appeal afresh within a period of six months from the date a copy of this order is made available to the said court. (Sanjay Dhar) Judge SRINAGAR 26.05.2025 Aasif