Holding

The Supreme Court held that the High Court erred by ignoring material documentary evidence and its judgment is set aside, with the case remitted for fresh consideration.

Summary

The plaintiff, Dubaria, sued for a permanent injunction claiming ownership of a building on Plot No. 4934 in Banda, alleging purchase from Rajjan and later from the Zamindar. The trial court decreed in his favour after considering oral testimony and documentary evidence including khatauni, khewat and a survey report. The first appellate court reversed the decree, holding the plaintiff was not the owner, primarily on the basis that the survey report was unreliable and the respondent was in possession. The High Court affirmed the appellate court's findings, stating they were pure findings of fact and not open to interference. The Supreme Court, hearing a Special Leave Petition, held that the High Court erred by ignoring material documents and admissions, and therefore set aside its judgment, remitting the matter for fresh consideration.

Issues considered

Whether the High Court was justified in affirming the first appellate court's findings of fact without considering the khatauni, khewat and admissions of the parties.
Whether the Supreme Court may interfere with concurrent findings of fact under Article 136 of the Constitution.
Whether the trial court's decree granting permanent injunction should be restored.

Legislation cited

Constitution of Indias. Article 136

Subjects

injunctionproperty ownershipkhataunikhewatfindings of factArticle 136Supreme Court reviewcivil appealpermanent injunctionland dispute

Judgment

•

[2009] 14 (ADDL.) S.C.R. 348

A DU BARIA )I.
I

v.
HAR PRASAD & ANR.
(Civil Appeal No. 6185 of 2009)

B SEPTEMBER 10, 2009
[TARUN CHATTERJEE AND AFTAB ALAM, JJ.]
~

-L
Suit - Suit for injunction - Decreed by trial court -
c Dismissed by first appellate court - In second appeal, High
Court affirming finding of first appellate court - On appeal,
held : Order of High Court not justified - Order of first
appellate court was affirmed by ignoring material oral and
documentary evidence - Matter remitted to High Court.
.L
D Constitution of India, 1950 ..,;, Article 136 - Scope of - ~

Discussed.

Appellant-plaintiff filed a suit for permanent
injunction against respondents-defendants, claiming
E himself to be owner of the suit property. Trial court
decreed the suit. First appellate court reversed the order
of trial court. High Court dismissed the second appeal, ~
.-l
upholding the finding of first appellate court and held that
judgment of first appellate court was concluded by pure
F finding of fact and, therefore, interference with such
finding was not required. Hence the present appeal.

Partly allowing the appeal and remitting the matter to
High Court, the Court

G HELD: 1. While affirming the findings of the Appellate
)..
Court, High Court had failed to consider the Khatauni and
Khewat in respect of the suit property, which were material
documents to come to a correct finding on the question
of fact. The High Court had also failed to take into
H 348 ._
,...
DUBARIA v. HAR PRASAD & ANR. 349

i consideration the admission made by the respondents in A
their evidence that the appellant was living in one room,
built by one 'R' who had executed the sale deed in favour
of the plaintiff-appellant. Therefore, non-consideration of
these materials on record would be a ground to set aside
the judgment of the High Court because the findings of B
the High Court must be held to be contrary to the
documents already on record. [Para 12) [353-F-H; 354-A]
;

> 2. Infirmity of excluding, ignoring and overlooking
the abundant materials and the evidence, which if
considered in the proper perspective would have led to
c
a conclusion contrary to the one taken by both, the High
Court was well as first appellate court, it would be open
to Supreme Court to interfere with concurrent fundings
-)/
) of fact arrived at by the High Court and the first appellate
... court. That apart, the High Court, while affirming the D
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. [Para 13) [354-E-G]
E
Othayath Lekshmy Amma and Anr. vs. Nellachinkuniyil
~ Govindan Nair and Ors. JT 1990 (3) SC 230, relied on.
j

Basudev Hazra vs. Meutiar Rahaman Manda/ 1971 (3)
SCR 378 and Bhanu Kumar Shastri vs. Mohan Lal Sukhadia
.. and Ors. 1971(1) SCC 370, referred to
I
F

Case Law Reference :
JT 1990 (3) SC 230 Relied on Para 13
1971 (3) SCR 378 Referrred to Para 13 G
J
1971(1) sec 370 Referred to Para 13

CIVIL AP PELLATE JURISDICTION : Civil Appeal No.

-, H
...
350 SUPREME COURT REPORTS (2009) 14 (ADDL.) S.C.R.

A 6185 of 2009. 1 ',__
From the Judgment & Order dated 26.07.2006 of the High
Court of Judicature at Allahabad in Second Appeal No. 956 of
1976.
B Dr. Nafis A Siddiqui, for the Appellant.

Sanjay Kumar Dubey, AS. Bhasme, for the Respondents.
.~

The Judgment of the Court was delivered by --(

c TARUN CHATTERJEE, J. 1. Delay condoned. "

2. Leave granted.

3. Application for substitution is allowed.
,I
,..J.

D 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 ·
... E
~. concluded by concurrent findings of fact and, therefore, no
substantial question of law was involved in the same.
1
-l.
5. The appellant as plaintiff instituted a suit for permanent
injunction restraining the defendants-respondents from
F interfering with his possession in respect of a building situated
in Plot No. 4934 in Village Bhavanipurva Muhal Usufzama in .'h

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 ,,.
G
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

H

-.
DUBARIA v. HAR PRASAD & ANR. 351
[TARUN CHATTERJEE, J.]

August, 1967. Since the respondents had sought to interfere A
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
8
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
-4
been purchased by the plaintiff-appellant. They further pleaded
> that the suit property was in village Hardwali under the
c
. 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
) D
sought dismissal of the suit.
A.
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 E •A,
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- F
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 G
-"- 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 H
_..
352 SUPREME COURT REPORTS [2009] 14 {ADOL.) S.C.R.

A and documentary, on record and also the judgment and decree
j
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
B 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 --i,
plaintiff-appellant filed a second appeal before the High Court
c 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 •
D basis of maps, which were not correctly traced. The High Court .A I

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
E 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
F 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.
G
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 I
courts below and other materials on record. Having heard the
H learned counsel for the parties and after going through the
DUBARIA v. HAR PRASAD & ANR. 353
[TARUN CHATTERJEE, J.]

judgments of the High Court as well as of the courts below and A
' '
> 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 B
perusal of documents and considering the extract of khewat
dated 20th of June, 1968 and dated 8th of February, 1971 and
..I the Report of the Commissioner dated 26th of March, 1970 and
>- other evidences on record, oral and documentary, had decreed
c
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
'i evidences and the location of plot No.4934. The High Court in
D
""' 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 ~nd then held that the second appeal was
concluded by t_Q.e-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 E
property at all, which, in our view, were material documents to
~
j 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 F
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 G
~ 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 H

r
354 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

A 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
B 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 ....i.
Court to interfere with the concurrent findings of fact which can
c 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
D 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
Manda/, 1971 (3) SCR 378 and Bhanu Kumar Shastri vs.
E 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 •
A_
perspective would have led to a conclusion contrary to the one
taken by both the High Court as well as the First Appellate
F 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,
G'" 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
H
DUBARIA v. HAR PRASAD & ANR. 355
[TARUN CHATTERJEE, J.]
j judgment of the High Court and remit the case back to the High A
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. B

15. The appeal is allowed to the extent indicated above .
..,,. ,. There will be no order as to costs.
>-
KK.T.
.
Appeal partly allowed .
.,