It was the duty of the High Court, while companying to a finding of fact or to accept the findings of first appellate companyrt, to take into companysideration the record particularly the extract of khatauni and khewat in respect of the suit property.
39 of 1973 were preferred before the Court of the Second Additional District Judge, Banda at the instance of the defendants respondents.
4934 alleged to have been purchased by the plaintiff appellant.
4934 in Village Bhavanipurva Muhal Usufzama in the District of Banda hereinafter referred to as suit property in the Court of Munsif, Banda.
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 companysideration of the report of the Commissioner as well as the findings of the trial Court and after companysidering the findings of the Appellate Court also held that the report of the Commissioner would number at all be relied upon as the fixed points relied upon by him were on the basis of maps, which were number companyrectly traced.
It appears that the trial companyrt, after recording evidence, and perusal of documents and companysidering 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 companyrt inter alia on the ground that the Report of the Commissioner was number 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.
Having heard the learned companynsel for the parties and after going through the judgments of the High Court as well as of the companyrts below and the materials on record, we are of the view that the High Court was number justified in holding that the Second Appeal was companycluded by the findings of fact without companysidering the material and documentary evidence already on record.
The respondents entered appearance and companytested the suit by filing a written statement inter alia denying the material allegations made in the plaint.
The High Court in its impugned judgment had affirmed the findings of fact arrived at by the first appellate companyrt, which had reversed the judgment of the trial companyrt and then held that the second appeal was companycluded by the findings of fact.
The First Appellate Court, after hearing the learned companynsel for the parties and after companysidering 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 number acceptable and believable and the respondent No.
They further pleaded that the suit property was in village Hardwali under the Zamindari of Pt.
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 companynsel for the parties.
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.
Unfortunately, the High Court, while affirming the findings of the Appellate Court, had failed to companysider the khatauni and khewat in respect of the suit property at all, which, in our view, were material documents to companye to a companyrect finding on the question of fact in the above mentioned case.
7 Ram Kishore was in possession of the suit property.
Since the respondents had sought to interfere with the possession of the plaintiff appellant in respect of the suit property, he was companystrained to file the suit for declaration and permanent injunction.
Issues were framed and parties went into trial after recording evidence in respect of their respective claims.
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.
While setting aside the Judgment of the trial Court, the Appellate Court also held that the plaintiff appellant was number the owner of the suit property.
He claimed to have purchased the suit property from one Mr. Rajjan by a sale deed dated 27th of December, 1966.
956 of 1976, whereby the High Court had dismissed the appeal on the ground that the same was companycluded by companycurrent findings of fact and, therefore, numbersubstantial question of law was involved in the same.
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.
31 of 1973 and Civil Appeal No.
The respondents denied that the suit property was situated on Plot No.
Feeling aggrieved by the judgment of the trial Court, two sets of appeals namely, Civil Appeal No.
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 companycluded by pure findings of fact and, therefore, the question of interfering with such findings of fact in Second Appeal would number arise at all.
Accordingly, the defendants respondents sought dismissal of the suit.
Sukhdeo Sahay Dubey.
Application for substitution is allowed.
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.
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.
TARUN CHATTERJEE, J. Delay companydoned.
Leave granted.
The learned Munsif, Banda, on companysideration 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 number disputed by the defendants respondents.
