Dubaria Vs.
Har Prasad & ANR. [2009] INSC 1562 (10 September 2009)
Judgment
HAR
PRASAD & ANR.
(Civil
Appeal No. 6185 of 2009) SEPTEMBER 10, 2009 [TARUN CHATTERJEE AND AFTAB ALAM,
JJ.] [2009] 14 (ADDL.) S.C.R. 348 The Judgment of the Court was delivered by
TARUN CHATTERJEE, J.
1.
Delay condoned.
2.
Leave granted.
3.
Application for substitution is allowed.
4.
This is an appeal filed at the instance of the plaintiff-
appellant challenging the judgment and decree dated 26th of July, 2006 passed
by the High Court of Judicature at Allahabad in Second Appeal No. 956 of 1976,
whereby the High Court had dismissed the appeal on the ground that the same was
concluded by concurrent findings of fact and, therefore, no substantial
question of law was involved in the same.
5.
The appellant as plaintiff instituted a suit for permanent
injunction restraining the defendants-respondents from interfering with his
possession in respect of a building situated in Plot No. 4934 in Village
Bhavanipurva Muhal Usufzama in the District of Banda (hereinafter referred to
as "suit property") in the Court of Munsif, Banda. He claimed to have
purchased the suit property from one Mr. Rajjan by a sale deed dated 27th of
December, 1966.
When the
Zamindar of the suit property objected to the said sale, the
plaintiff-appellant by way of an abundant caution, once again purchased the
entire building on the suit property from the Zamindar Sekh Anwar-Usufzama and
thus became the owner of the entire suit property on 6th of August, 1967. Since
the respondents had sought to interfere with the possession of the
plaintiff-appellant in respect of the suit property, he was constrained to file
the suit for declaration and permanent injunction.
6.
The respondents entered appearance and contested the suit by
filing a written statement inter alia denying the material allegations made in
the plaint. The respondents denied that the suit property was situated on Plot
No. 4934 alleged to have been purchased by the plaintiff-appellant. They
further pleaded that the suit property was in village Hardwali under the
Zamindari of Pt.
Sukhdeo
Sahay Dubey. The respondents, however, admitted that the plaintiff-appellant
was the rightful owner of only one room in the building on the suit property
that belonged to Mr. Rajjan, which the plaintiff-appellant had purchased from
him. Accordingly, the defendants-respondents sought dismissal of the suit.
7.
Issues were framed and parties went into trial after recording
evidence in respect of their respective claims. The learned Munsif, Banda, on
consideration of the entire evidence on record, oral and documentary, by a
Judgment and decree dated 7th of April, 1973 decreed the suit of the
plaintiff-appellant inter alia holding that the suit property had been
identified by a Survey Commission as described by the plaintiff-appellant and
that the claim of the plaintiff-appellant was supported by the fact that the
possession of the plaintiff-appellant in respect of one room of the building on
the suit property was not disputed by the defendants- respondents.
8.
Feeling aggrieved by the judgment of the trial Court, two sets of
appeals namely, Civil Appeal No. 31 of 1973 and Civil Appeal No. 39 of 1973
were preferred before the Court of the Second Additional District Judge, Banda
at the instance of the defendants-respondents.
9.
The First Appellate Court, after hearing the learned counsel for
the parties and after considering the evidence, oral and documentary, on record
and also the judgment and decree of the trial Court, allowed both the appeals
and set aside the judgment of the trial Court only on the ground that the
Survey Report of the Commissioner was not acceptable and believable and the
respondent No. 7 Ram Kishore was in possession of the suit property. While
setting aside the Judgment of the trial Court, the Appellate Court also held
that the plaintiff-appellant was not the owner of the suit property.
10.
Feeling aggrieved by the judgment of reversal, the plaintiff-
appellant filed a second appeal before the High Court of Allahabad and the High
Court, on consideration of the report of the Commissioner as well as the
findings of the trial Court and after considering the findings of the Appellate
Court also held that the report of the Commissioner would not at all be relied
upon as the fixed points relied upon by him were on the basis of maps, which
were not correctly traced. The High Court further held that since the evidence
on record was entirely in favour of the respondents, the plaintiff-appellant
had failed to prove that the suit property alleged to have been purchased by
the appellant was the same land for which a decree for permanent injunction was
sought for.
Finally,
the High Court, by the impugned judgment, dismissed the Second Appeal only on
the ground that the judgment of the First Appellate Court was concluded by pure
findings of fact and, therefore, the question of interfering with such findings
of fact in Second Appeal would not arise at all.
11.
Feeling aggrieved by this judgment of the High Court, passed in
the Second Appeal, this Special Leave Petition was filed in this Court, which
on grant of leave, was heard in presence of the learned counsel for the
parties.
12.
We have heard the learned counsel for the parties and examined
carefully the judgment of the High Court in Appeal, which is impugned before
us, and also the judgments of the courts below and other materials on record.
Having heard the learned counsel for the parties and after going through the
judgments of the High Court as well as of the courts below and the materials on
record, we are of the view that the High Court was not justified in holding
that the Second Appeal was concluded by the findings of fact without
considering the material and documentary evidence already on record. It appears
that the trial court, after recording evidence, and perusal of documents and
considering the extract of khewat dated 20th of June, 1968 and dated 8th of
February, 1971 and the Report of the Commissioner dated 26th of March, 1970 and
other evidences on record, oral and documentary, had decreed the suit of the
plaintiff-appellant which was reversed by the first appellate court inter alia
on the ground that the Report of the Commissioner was not believable and
acceptable and that Ram Kishore (respondent No.7) was in possession of the
building on the suit property ignoring the documentary evidences and the
location of plot No.4934. The High Court in its impugned judgment had affirmed
the findings of fact arrived at by the first appellate court, which had
reversed the judgment of the trial court and then held that the second appeal
was concluded by the findings of fact.
Unfortunately,
the High Court, while affirming the findings of the Appellate Court, had failed
to consider the khatauni and khewat in respect of the suit property at all,
which, in our view, were material documents to come to a correct finding on the
question of fact in the above-mentioned case. It was the duty of the High
Court, while coming to a finding of fact or to accept the findings of first
appellate court, to take into consideration the record particularly the extract
of khatauni and khewat in respect of the suit property. At the same time, in
our view, the High Court had failed to take into consideration the admission
made by the respondents in their evidence that the appellant was living in one
room, built by one Rajjan who had executed the sale deed in favour of the
plaintiff- appellant. Therefore, in our view, non-consideration of these
materials on record would be a ground to set aside the judgment of the High
Court because the findings of the High Court must be held to be contrary to the
documents already on record. That being the position, we are of the view that
the judgment of the High Court passed in the aforesaid second appeal is liable
to be set aside because the High Court, while affirming the judgment of the
first appellate court, had ignored material, oral and documentary evidence on
record, as noted herein earlier, were material documents to arrive at a just
decision in the appeal.
13.
The learned counsel appearing for the respondent, however,
submitted before us that in exercise of jurisdiction under Article 136 of the
Constitution, it was not open for this Court to interfere with the concurrent
findings of fact which can only be exercised very sparingly and in case of
manifest injustice.
According
to him, so far as this appeal is concerned, there is no such manifest injustice
being caused to the appellant by accepting the concurrent findings of fact
arrived at by the High Court. In Othayath Lekshmy Amma and Another
vs.Nellachinkuniyil Govindan Nair & Ors., JT 1990 (3) SC 230, this Court,
while considering the constitutional power under Article 136 of the
Constitution, following earlier judgments of this Court, namely, Basudev Hazra
vs.Meutiar Rahaman Mandal, 1971 (3) SCR 378 and Bhanu Kumar Shastri vs. Mohan
Lal Sukhadia and others, 1971 (1) SCC 370, held that infirmity of excluding,
ignoring and overlooking the abundant materials and the evidence, which if
considered in the proper perspective would have led to a conclusion contrary to
the one taken by both the High Court as well as the First Appellate Court, it
would be open to this court to interfere with concurrent findings of fact
arrived at by the High Court and the first appellate court. In view of the
aforesaid, we are, therefore, of the view that the submission of the learned
counsel for the respondents cannot be sustained. That apart, the High Court,
while affirming the findings of the first appellate court, had reversed the
findings of the trial court which had also considered the materials on record
including the aforesaid oral and documentary evidences referred to hereinabove.
14.
For the reasons aforesaid, we set aside the impugned judgment of
the High Court and remit the case back to the High Court for fresh
consideration in the light of the observations made hereinabove. Since the
Second Appeal is of the year 1976, we request the High Court to dispose of the
same on merits within three months from the date of communication of this Order
to it.
15.
The appeal is allowed to the extent indicated above. There will be
no order as to costs.
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