This second appeal is preferred from the judgment and decree of the learned District Judge, Dharmapuri at Krishnagiri dated 4-4-1990 made in A.S. No. 84/88 confirming the judgment and decree of the trial Court viz. the District Munsif, Hosur made in O.S. No. 188 of 1979 dated 26-6-1985.

2. The respondents herein filed a suit in O.S. No. 188 of 1979 seeking for a declaration that they are entitled to use the mamool MN path way cum cart track as shown in the plaint plan, for a consequential permanent injunction along with the relief of mandatory injunction for removal of the varandah construction put up by the appellants and for a declaration that the vacant space shown in the plaint plan is a common space between the parties along with consequential injunction. It is alleged that the first respondent is the owner of the house and vacant site described as ABCD in the plan by way of purchase under a registered sale-deed dated 26-4-1949 while the second plaintiff is the owner of the house described as EFGH in the plaint plan; that on the north of the house of the first respondent, the first appellant is having his house shown as IJKL and on the further north Rajaveedhi running east west is situated; that the appellants 2 and 3 are the sons of the first appellant; that to the east of the houses of the parties, there is a way shown as MN in the plaint plan, which has been used as a foot path as well as a cart track; that the said cart track having 10 feet width has been used for the past 50 years; that the same is the way leading to the houses of the parties from Rajaveedhi, that except the same, there is no other way for the respondents to take their carts from Rajaveedhi and also to take their cattle and also for them to walk; that the said way MN stopped at the house of the second plaintiff and it did not extend further; that the said way MN is an absolute necessity and the plaintiffs/respondents have been using the same for the past 30 years; that even the predecessors in title of the first appellant knew the same and they did not cause any obstruction or any hindrance to the usage of the said MN way; that in fact even in the document viz. the sale deed executed in favour of the first appellant dated 20-11-1978, the said way is shown as the eastern boundry; that in between the houses of the first respondent and the appellants there is a vacant site which is a common space IBCL for both; the first respondent and the appellants and even to this the appellants did not have any exclusive right or possession and they did not have any right to cause obstruction or put up any construction in the said space; that the appellants did not have any right beyond their eastern wall shown as KL; that due to the enmity on 22-5-79, they planted three stone pillars at a distance of 5 to 6 feet from KL wall; that the said construction was well within the said MN path cum cart track; that despite protest, the appellants are proceeding with the construction; that the said illegal construction put up by the appellants in the mamool way MN has caused absolute obstruction to the respondents in exercising their rights; that the said construction is shown as KLQR; that the said illegal construction has got to be removed by way of a mandatory injunction; that the appellants are also making their attempt to close the common space IBCL permanently and hence a declaration that it was the common space has to be granted along with the consequential permanent injunction and therefore they have filed the suit for the abovestated reliefs.

3. The appellants as defendants in the trial Court contested the suit stating that the respondents are not entitled for the reliefs, that the houses came into existence only before four years, that the first appellant purchased the house and vacant space from the previous owner by a sale-deed dated 20-11-1978, but it is false to allege that to the east of the house of the parties, there was a common path way or a cart track, that it was not a plan marked or a mamool one; that there was no cart track and it was never used as cart track, but it was only a path way to reach the house from the road and the north and to go by walk to the houses of the respondents on the south; that in the vacant space in front of the respondents, they tethered their cattle and to the knowledge of the appellants no carts were ever parked or taken through that way; that it is also further false to allege that the said path way was 10 feet wide, that it is not correct to state that the respondents have been using the said path way for the past 30 years or taking their carts or cattle, that between the houses of the respondents, there is a lane and the rain water from the two houses used to fall in the said lane in between and flow towards west and drain itself into a pohd; that it is not correct to state that te said KL will is the eastern wall of the appellants house, that the appellants have put up the varandah only in their portion of the property belonging to them and in their possession and thus they have not encroached into any portion and hence the case of the respondents that the appellants have encroached into the path cum cart track was false and it cannot be called as illegal construction, that on the south of the property purchased by the appellants, they have occupied an extent of 20 links east west on the northern side and an extent of 40 links on the west in the north south direction and the said property which has been in the possession and enjoyment of the appellants, abutting their house on the west is also applied for assignment by the first appellant; that the respondents need not pass in the said passege which is situated to the east of the appellants house portion, since they were using the lane which is to the south of the cattle shed, that the respondents have not been using the space between the house of the Ele Gowdu and the appellants; that the respondents have no right to allow their rain water and guttur water to go into the space shown as IBLL in the rough sketch since all along the water has been flowing only between GFAD and thus the respondents are not entitled for the reliefs asked for, that the causes of action are imaginry and hence, the suit has got to be dismissed.

4. On the rival pleadings, the learned District Munsif, Hosur framed the necessary issues, tried and decreed the suit, granting all the reliefs as asked for. Aggrieved by the same, the defendants/appellants preferred an appeal in A.S. No. 84/88. The learned District Judge Krishnagiri after hearing the submissions of both sides confirmed the judgment and decree of the trial Court. The defendants/ appellants aggrieved by the said judgment and decreed of the lower appellate Court have preferred this second appeal.

5. At the time of admission, the following substantial question of law was formulated for consideration :

"Whether the judgment of the lower appellate Cort did not satisfy the requirements of Order 41, Rule 31 and should therefore, be set aside."

6. As stated above, the respondents herein field a suit seeking for a declaration that they are entitled house the mamool path way cum cart track shown as MN in the plaint plan, for a mandatory injunction for removal of the varandah construction made by the appellants shown as KLQR, for a declaration that the space as ICBL in the plaint plan is a common one and for a consequential permanent injunction. After contest the trial Court decreed the suit in entirety. When the said judgment was challenged by the appellants hereinbefore the District Court, the same has been confirmed in entirety.

7. At the outset it has to be pointed out that this second appeal has arisen when there is a concurrent finding of the Courts below on the question of fact. The learned counsel appearing for the appellants would sumit that the lower appellate Court should not have confirmed the judgment and decree of the trial Court, that the lower appellate Court neither considered the submissions of the appellants nor has given definite reasonsing to confirm the decree of the trial Courts, that the first appellate Court has erred in law in overlooking that it is its duty as the final Court of fact to analyse the evidence afresh and give it is own conclusion independently as provided for under Order 41, Rule 31; that having regard to the fact that the lower appellate Court has summaried the submissions and not considered the points raised independently on facts, the judgment of the learned District Munsif cannot be sustained, that the learned District Judge has not considered the specific plea of the respondents viz. that the path way MN was only a path way intended for their use and they were using the same for over 30 years, a claim of easement of necessity and prescription, that the first appellate Court has not considered the respondents, own plea of right of easement which has vitiated the entire reasonings of the learned District Juge, that the first appellate Court has not appreciated that when once the claim is made as an easement of necessity, it is for the respondents to establish that they have acquired such an easement right, that the respondents had failed to establish that they have acquired any such right as provided under the Easement Act; that Ex. A1 described that the northern boundary, is a common lane which by itself would not confer a right of user, that Ex. A22 a receipt for payment of cart tax would not by itself establish the enjoyment of the path way MN by the respondents, that the lower Court has failed to considered that the right of easement cannot be acquired over a common path way; that without considering the evidence both the Courts have held that the appellants have put up their varandah KLQR over the common path way MN and as such they were to remove the said construction, that it is pertinent to note that the Commissioner appointed by the Court while measuring the extent of the appellants property had also taken into account a portion of poramboke land in the occupation of the appellants and thus the measurement made by the Commissioner was not correct and thus once the area of poramboke occupied by the appellants is deleted it could not be found that the portion KLQR lies within the property of the appellants; that a decree for mandatory injunction cannot be granted while the respondents acquiesced in the construction, that having regard to the fact that the respondents have allowed the appellants to put up the construction, the respondents are estopped by their own conduct from seeking a decree for mandatory injunction, that even assuming that the construction was put up by the appellants, no prejudicie has been caused to the respondents, since even after the construction there was sufficient space to take their carts, that both the lower courts were wrong in holding that the portion marked IBCL in the plaint plan was a common passage and the respondents were entitled to discharge sullage water through the said passage. In support of his contentions, the learned counsel for the appellants relied on the following decisions viz. (1) 1996 (2) Mad LW 574, (2) 1997 (1) Mad LW 704 : 1997 AIHC 1403) and (3) (2001) 2 Mad LJ 68.

8. In answer to the above contentions, the learned counsel for the respondents would submit that the trial Court has granted the relief of declaration, mandatory injunction and permanent injunction only after careful consideration of the pleadings and evidence both oral and documentary; that when the said judgment was appealed against, the learned District Judge has carefully considered the whole evidence and appraised the merits of the case and has confirmed the judgment of the trial Court, that whileso, the contention of the appellants side that the first appellate Court has not analysed the evidence afresh nor has it given its own conclusion independently is not correct, that the reading of the judgment of the first appellate Court would clearly indicate that it has discussed the evidence and has come to its own conclusion and has confirmed the findings of the trial Court and thus the findings of both the Courts on facts were fully based on the evidence on record, that both the Courts have found that the varandah shown as KL wall in the plaint plan was in the common passage; that it was not in the property of the appellants; that the same has been used for a long time; that the varandah has been put up by the appellants and it would definitely obstruct and cause hindrance to the passage being used, that the contention of the appellants side that there was sufficient space for the respondents to take their cart even without demolishing the varandah has to be rejected since the said construction is an encroachment in the common passage, that the appellants who have raised a construction in the common passage by encroachment have not proved that the varandah is well within the property, but on the contrary the respondents have clearly proved that the appellants have made encroachment in the path way, that while the lower appellate Court has carefully analysed the evidence in the case and has arrived at its finding, it cannot be said that the lower appellate Court has not satisfied the requirements of Order 41, Rule 31 and thus there is no merit in the appeal and the same has got to be dismissed.

9. After careful consideration of the rival submissions and the scrutiny of the entire materials, the Court is of the view that the contentions putforth by the appellants side do not merit approval. What is being challenged in this second appeal is the judgment of the learned District Judge confirming the judgment and decree of the learned District Munsif granting the reliefs as asked for by the respondents herein. In the said suit, the respondents as the plaintiffs who sought for a declaration of their right to use a mamool path way cum cart track shown as MN in the plaint plan, for mandatory injunction for removal of a varandah construction, shown as KLQR in the rough plan and put up by the appellants, for a declaration that the space shown as ICBL in the plan is a common space and for consequential perpetual injunctions, in order to substantiate their case, have examined PWs 1 to 4 and marked Exs. A1 to A22. The appellants who contested the suit examined DWs 1 to 4 and marked Ex. B1. The Advocate Commissioner appointed by the trial Court has filed his reports and plans which were marked as Exs. C1, to C4. The trial Court after careful analysis of the oral and documentary evidence adduced by both sides as found that the path way MN is a common passage which has been used as a cart tack and that iti was the only access to the house of the respondents plaintiffs from the Rajaveedhi and it was an absolute necessity for the respondents. A persual of the report filed by the Commissioner would indicate that the varandah was an encorach-ment and it was constructed only on the date of his visit viz. 9-6-1979 i.e. after the suit. It is pertinent to point out that the appellants herein did not raise any objection to the said Commissioners report.

10. The respondents when they filed the suit have specifically pleaded that the appellants have planted three stone pillers within MN cart track. Thus it would be clear that despite the pendency of the suit, the appellants continued their encroachment and have made by the illegal construction of the varandah in the MN path way. Both the Courts below have pointed out that this common passage in question has been shown as eastern boundary in the sale-deed executed in favour of the first appellant. As rightly pointed out by the respondents side, while the respondents have proved that the said varandah has been constructed in the common place, the appellants were unable to show that they had made the construction within their property. It is pertinent to point out that the appellants have well admitted that MN portion was not used as cart track, but was used only as a foot path. Both the Courts below have pointed out that the respondents have adduced satisfactory evidence to show that MN portion has been used as cart track and that the same has been in use for a long period. The contention of the appellants side that they have put up the varandah only in a portion of their property and the measurements given by the Commissioner in his reprot are incorrect and even without demolishing the varandah, there was sufficient space for the respondents to take their carts through MN path way has got to be rejected as devoid of merits. The respondents have proved the existence of the cart track, the right of easement by long user, the encroachement by the appellants by illegal construction and the infringment of the respondents right caused thereon. Both the Courts have found on evidence that the space in between the house of the parties shown as ICBL in the plan has been used in common.

11. Relying on a decision reported in 1996-2 Mad LW 574 (Munviel v. Munusamy Mudaliar), the learned counsel for the appellants with vigour and vehemence would submit that the lower appellate Court as the final court of fact was duty bound to analyse the evidence afresh and give its own concusion independently, which it has failed to do so and that the ground of reasoning and the inference of the lower appellate Court cannot be sustained. In the said decision (1996 2 Mad LW 574), this Court has held as follows :

"Order 41, Rule 31, of C.P.C. reads thus;

" 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.

The Madras High Court Amendment to Rule 31 reads thus :

"31. 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 bear the date on which it is pronounced and shall be signed by the Judges concurring therein;

Provided that, where the presiding Judge is specially empowered by the High Court to pronounce his Judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge."

(1917)

In this case, the first appellate Court has not conformed strictly to the provisions of Rule 31. This Court has held that the provisions of this Rule are mandatory. A judgment whcih does not comply with the provisions of Rule 31 is no judgment in law. The judgment of the appellate Court should briefly but clearly set out the allegations of the plaintiff, the pleas in defence and the findings of the Court below on the issues arising out of the pleadings and then it should give the points for determination, the decision thereon and the reasons."

This Court has to necessarily disagree with the above contention of the appellants side, since the decision cited supra is not applicable to the instant case. It is not correct to state that the lower appellate Court has neither considered the evidence nor given its reasons. It is true that the lower appellate Court has summarised the submissions of the respective counsel. But a perusal of the judgment of the lower appellate Court would indicate that only after careful consideration of the available materials, it has arrived its own conclusion. What has been done by the lower appellate Court is not a mere affirmation of the findings of the trial Court, but an affirmation of the trial Courts findings on an analysis and careful consideration of the available evidence. In the instant case, it cannot be stated that the first appellate Court has not conformed strictly to the provisions of Order 41, Rule 31. It is true that the provisions of the aforesaid Rule are mandatory and a duty is cast upon the first appellate Court to strictly follow the said provisions . There cannot be any dispute that a judgment which does not comply with the provisions of the aforesaid Rule viz. Order 41, Rule 31 is not a judgment in law. The judgment of the first appellate Court whichp is under challenge, when looked into, would clearly reveal that the said court has clearly set out the case of the plaintiffs, the pleas in defence, the findings of the trial Court on the issues, statements of points for determination and the decisions thereon with its reasons. Under such circumstances, it cannot be stated that the judgment of the first appellate Court in the instant case is not in accordance with the provisions of Order 41, Rule 31, of C.P.C. The Court is of the view that there is nothing to interference in the judgment of the courts below. The above substantial question of law is answered accordingly.

12. In the result, this second appeal fails and the same is dismissed with costs. Consequently, connected CMP is also dismissed.

Order accordingly.