REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6185 OF 2009 [Arising out of SLP [C] No.20497of 2006]

Dubaria                                                                          …Appellant

VERSUS

Har Prasad & Anr.                                                    …Respondents

J U D G M E N T

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  

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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.  

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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  

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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  

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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  

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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  

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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.  

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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.   

….………………………J. [TARUN CHATTERJEE]

New Delhi;                                                      ..………………………J. September 10, 2009.                                                  [AFTAB  ALAM]   

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