BANARSI DAS versus BRIG MAHARAJA SUKHJIT SINGH AND ANR.

Citation: [1997] SUPP. 4 S.C.R. 580 · Decided: 21-10-1997 · Supreme Court of India · Bench: SUJATA V. MANOHAR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
BANARSI DAS 
v. 
BRIG MAHARAJA SUKHJIT SINGH AND ANR. 
OCTOBER 21, 1997 
[SUJATAV.MANOHARANDD.P. WAD~A,JJ.] 
Civil Procedure Code 1908-Section JOO (as it existed prior to the 
amendment Act of 1976)-Section 41 Punjab Courts Act. 1918 (which is pari 
C materia with the aforesaid Section 100)-Second appeal-Whether 
maintainable-Held, yes. Jurisdiction of High Court invoking of-Held, 
rightly invoked. 
Evidence Act, 1872-0ral evidence-Admissibility of-Held, in the 
absence of the documentary evidence the plaintiff could not rest his case on 
D oral evidence. 
Practice and Procedure-First Appellate Court-Jurisdiction-Held, 
cannot go beyond the limits of the pleadings, evidence and the issues 
involved-Substantial error and defect in the procedure by the First Appellate 
Court-Findings based on mere suspicion and bias-High Court was right 
E in setting aside the judgment of the first appellate court. 
Exercise of jurisdiction-Procedure prescribed by law-Held, when 
law prescribes as to how jurisdiction is to be exercised and power is conferred 
for that purpose, it has to be exercised in that way. 
F 
The Appellant plajntiff instituted a suit seeking a decree for permanent 
injunction against the Respondent-defendants. The appellant-Plaintiff's case 
was that he was in peaceful cultivation of the land which he had got from his 
father; and that the first respondent defendant through his attorney allowed 
the second respondent defendant to take forcible and illegal possession of the 
G suit land who raised construction thereon. It was further the appellant-
plaintiff's case was that the land was an evacuee land belonging to the Central 
Government and that his grandfather was a sub lessee. 
The respondents denied the aforesaid allegations and contended that the 
first respondent herein was the owner of the land though in the revenue record 
H the Central Government was mentioned as cultivator. The Second respondent 
580 
BANARSI DAS v.B.M.S. SINGH 
581 
put forth that he had bought the land from the first respondent by way of a A 
sale deed, the possession of which land was delivered on the same day. 
In support of this case the appellant only examined the witnesses orally 
as evidence whereas the respondents produced documentary evidence in 
support of their case besides adducing oral evidence. The Trial Court 
dismissed the suit of the appellant-plaintiff who went in appeal before the B 
District Judge, who had reserved the findings of the Trial Court and decreed 
the suit. The Sec:md Respondent defendant went in second appeal before the 
High Court. The High Court allowed the appeal and restored the order of the 
Trial Court dismissing the suit. Aggrieved, the appellant plaintiff came up in 
appeal before this Court. 
C 
On behalf of the appellant plaintiff it was contended that the High Court 
was in error in entertaining the Second appeal without there being any 
substantial question of •.aw involved and that the Second appeal was entertained 
in violation of the procedure prescribed under Section 100 C.P.C. On behalf 
of the respondents it was submitted that the Second appeal was filed under D 
Section 41 of the Punjab Courts Act 1918, which was in pari metaria with 
Section 100 of the Code as it existed prior to the amendment. 
Dismissing the appeal, the Court 
HELD : 1. The whole approach of the first appellate court was based E 
merely on suspicion and bias against the second respondent. It was ceraintly 
the case where there was a substantial error or defect in the procedure as 
prescribed by the court and the High Court was justified in entertaining the 
Second appeal. [589-G] 
2.1. The first appellate court lost sight of the fact that there was no F 
documentary evidence to support the case of the plaintiff. No record was 
produced from the office of the rehabilitation department. No Revenue record 
whatsoever was produced to show the possession of the plaintiff. The first 
appellate Court appeared to have made a case of the plaintiff which was neither 
pleaded nor was there anything to support that. [589-E] 
G 
2.2. There was no evidence that the plaintiff was in possession of the 
suit land. Seeing the issues and the evidence on record, the conclusion is 
irresistible that there is no evidence t& show that the plaintiff was in 
possession of the land In the absence of the documentary evidence which could 
have been available, the plaintiff could not rest his case on oral evidence which H 
582 
SUPREME 

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