Tarun Chatterjee, J.— Delay condoned. Leave granted. Application for substitution is allowed.
2. This is an appeal filed at the instance of the appellant-plaintiff challenging the judgment and decree dated 26-7-2006 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.
3. The appellant as plaintiff instituted a suit for permanent injunction restraining the respondent-defendants 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 “the 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 27-12-1966. When the zamindar of the suit property objected to the said sale, the appellant-plaintiff by way of an abundant caution, once again purchased the entire building on the suit property from Zamindar Sekh Anwar Usufzama and thus became the owner of the entire suit property on 6-8-1967.
4. Since the respondents had sought to interfere with the possession of the appellant-plaintiff in respect of the suit property, he was constrained to file the suit for declaration and permanent injunction. 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 appellant-plaintiff.
5. The respondents further pleaded that the suit property was in Village Hardwali under the zamindari of Pt. Sukhdeo Sahay Dubey. The respondents, however, admitted that the appellant-plaintiff was the rightful owner of only one room in the building on the suit property that belonged to Mr Rajjan, which the appellant-plaintiff had purchased from him. Accordingly, the respondent-defendants sought dismissal of the suit.
6. 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 7-4-1973 decreed the suit of the appellant-plaintiff inter alia holding that the suit property had been identified by a Survey Commission as described by the appellant-plaintiff and that the claim of the appellant-plaintiff was supported by the fact that the possession of the appellant-plaintiff in respect of one room of the building on the suit property was not disputed by the respondent-defendants. 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 respondent-defendants.
7. 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 Respondent 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 appellant-plaintiff was not the owner of the suit property. Feeling aggrieved by the judgment of reversal, the appellant-plaintiff 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.
8. The High Court further held that since the evidence on record was entirely in favour of the respondents, the appellant-plaintiff 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.
9. 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 the presence of the learned counsel for the parties. 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.
10. 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 20-6-1968 and dated 8-2-1971 and the report of the Commissioner dated 26-3-1970 and other evidence on record, oral and documentary, had decreed the suit of the appellant-plaintiff 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 7) was in possession of the building on the suit property ignoring the documentary evidence and the location of Plot No. 4934.
11. 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 abovementioned case.
12. It was the duty of the High Court, while coming to a finding of fact or to accept the findings of the 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 appellant-plaintiff. 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.
13. 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 hereinearlier which were material documents to arrive at a just decision in the appeal.
14. 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.
15. In Othayath Lekshmy Amma v. Nellachinkuniyil Govindan Nair (1990) 3 SCC 374, JT (1990) 3 SC 230 this Court, while considering the constitutional power under Article 136 of the Constitution, following the earlier judgments of this Court, namely, Basudev Hazra v. Matiar Rahaman Mandal (1971) 1 SCC 433, (1971) 3 SCR 478 and Bhanu Kumar Shastri v. Mohan Lal Sukhadia (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 evidence referred to hereinabove.
16. 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.
17. The appeal is allowed to the extent indicated above. There will be no order as to costs.