DUBARIA v.

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.