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CASE NO.: Appeal (civil)  7934-7935 of 2001

PETITIONER: SEBA BANERJEE & ORS

RESPONDENT: NIRMALA DAS @ NIRMALA BALA DAS(D) & ORS

DATE OF JUDGMENT: 06/02/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT

                       O R D E R CIVIL APPEAL NOS.7934-7935 OF 2001                  Heard learned counsel for the parties at length.         The plaintiffs’ suit for declaration of easementary right by way of necessity,  prescription and grant has been dismissed by the trial court.  The order of the trial  court has been affirmed in appeal by the first appellate Court.  However, by the  impugned order the High Court sitting in the second appeal reversed the concurrent  finding of facts recorded by the two courts below and decreed the plaintiffs’ suit  albeit without framing substantial question of law.           We have noticed in the judgment of the High Court that the High Court itself  has recorded that the concurrent finding of two courts below with reason cannot be  upset in second appeal. Having recorded that, the High Court turned around and  decreed the suit by re-appreciating the evidence on the record and facts. This is not  permissible.         In the result the judgment and decree of the High Court in second appeal is set  aside and the orders of the trial court and first appellate court are restored.          The appeal are allowed. No costs.