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2001 DIGILAW 898 (ALL)

Sunder Lal v. Ram Charan

2001-09-04

KAMAL KISHORE

body2001
JUDGMENT : - Kamal Kishore, J. This is the second appeal against the judgment and decree dated 2-8-1980 passed by Sri N.B. Asthana, the then IInd Additional District Judge, Rae Bareli allowing the first appeal and setting aside the judgment and decree passed by the then III Additional Munsif, Rae Bareli in Suit No. 82 of 1978. 2. THE suit was filed upon the allegations that the plaintiff is the Bhumidhar of Plot No. 101 having an area of 8 Bis. , 15 Bis. This plot is in two parts. THE area of one part is 5 Bis. , 10 Bis. , while the other part is 3 Bis. , 5 Bis. He planted Mahuva and mango trees over this plot about 12 or 14 years back. THE area of 3 Bis. , 5 Bis. , of Plot No. 101 is contiguous to Plot No. 100 of the defendants in which his Katahal tree exists. Defendant No. 1 along with some of his companions plucked the Katahals of the aforesaid tree on 9-7-1976 causing a loss of Rs. 150 to the plaintiff. He filed a complaint regarding it. Defendant No. 1 and the other accused were convicted by the trial Court but acquitted in appeal. THE defendant claimed themselves to be the owner of the Katahal tree in question and therefore, the suit. Defendant No. 1 Ram Charan alone filed the written-statement in which he denied that the disputed Katahal tree lies in Plot No. 101 and that it is in possession of the plaintiff. According to him, this tree is about 70 or 80 years old. One Masoom Ali was the owner of this tree. After his death, Mubarak Ali and Mahamoodul Nishan came into possession thereof and appropriated the produce thereof. He got a sale- deed executed from Mubarak Ali and Mahamoodul Nishan and since then is in possession of the tree in question. It was denied that the tree in question lies in Plot No. 101 and it was alleged that he has also perfected his title by adverse possession of this tree. He claimed that the sale-deed by Mubarak Ali was executed with respect to Plot Nos. 100, 102, 104, 105 and 106 and that he is also the cultivator from the times of his father of Plot No. 103 and that the disputed Katahal tree lies in one of these plots. 3. He claimed that the sale-deed by Mubarak Ali was executed with respect to Plot Nos. 100, 102, 104, 105 and 106 and that he is also the cultivator from the times of his father of Plot No. 103 and that the disputed Katahal tree lies in one of these plots. 3. THE following of law has been formulated by this Court : Whether the judgment and decree of the first lower appellate Court is perverse as per the grounds B, C, D and E of the memo of appeal? 4. I have heard the learned Counsel for the parties and gone through the records. The Court (the first appellate Court) is under duty to examine evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding. This is the situation in the present case. 5. IN the instant case, the learned lower appellate Court has not considered the vital evidence. The map and report 27 Ga-2/1 to 27 Ga-2/4 dated 7-8-1979 prepared by Sri Hardutt Prasad Tiwari, Advocate Commissioner shows a Katahal (jack fruit) tree is situated in Plot No. 101 in suit and another Kathal tree is situated on Plot No. 102. The averments of the sale-deed in favour of the defendants-respondents show the existence of merely one Katahal tree on Plot No. 102. The learned lower appellate Court has erred in not considering this vital evidence. IN a case of like nature, the High Court interfered with the finding on the ground of non-consideration of vital evidence and the Hon'ble Supreme Court affirmed the said decision. That was upheld in Jagdish Singh v. Nathu Singh, (1992) 1 SCC 647 : 1992 AIR SCW 1747 : AIR 1992 SC 1604 , with reference to a Second Appeal of 1978 disposed of on 5-4-1991, Vankatachaliah, J. (as he then was) held : Where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. " 6. AGAIN in Sundra Naicka Vadiyarn v. Ramaswami Ayyar, 1995 Suppl. " 6. AGAIN in Sundra Naicka Vadiyarn v. Ramaswami Ayyar, 1995 Suppl. (4) SCC 534 : 1993 AIR SCW 3978 : AIR 1994 SC 352, it was held that where certain vital documents for deciding the question of possession were ignored such as a compromise, an order of the Revenue Court reliance on oral evidence was unjustified. In yet another case in Mehrunissav. Visham Kumari, (1998) 2 SCC 295 : 1998 AIR SCW 3 : AIR 1998 SC 427 , arising out of second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh, (1992) 1 SCC 143 : 1991 AIR SCW 2813 : AIR 1992 SC 123 , it was held that the High Court was right in interfering in Second Appeal, as has been held by Hon'ble Supreme Court in the ruling reported in AIR (2000) Supreme Court 426, Ishwar Das Jainv. Sohan Lal. As to the jurisdiction of the High Court to reappreciate evidence in a Second Appeal it is to be observed that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings as has been held by the Hon'ble Supreme Court in the ruling reported in (1992) 1 SCC 647 , Jagdish Singh v. Natthu Singh. The same view has been taken by Hon'ble Supreme Court in another ruling also as reported in AIR 1987 SC 1484, that the erroneous findings of fact recorded by the Court below can be set aside by High Court in second appeal. The question of law formulated above is answered in favour of the plaintiff-appellant accordingly. 7. The same view has been taken by Hon'ble Supreme Court in another ruling also as reported in AIR 1987 SC 1484, that the erroneous findings of fact recorded by the Court below can be set aside by High Court in second appeal. The question of law formulated above is answered in favour of the plaintiff-appellant accordingly. 7. UNDER these circumstances, I find that the judgment and decree of the first appellate Court is perverse and the same is liable to be set aside, while the judgment and decree passed by the learned trial Court is liable to be maintained. 8. THE second appeal is hereby allowed with costs. THE judgment and decree passed by the first appellate Court is set aside with the modification that one Katahal tree which is situated in Plot No. 101 belongs to the appellant. THE suit regarding the Katahal tree standing on Plot No. 101 only is hereby decreed. Appeal allowed.