DUBARIA versus HAR PRASAD & ANR.

Citation: [2009] 14 S.C.R. 348 · Decided: 10-09-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Remitted to Lower Court

Judgment (excerpt)

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[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.] 
~ 
Suit -
Suit for injunction -
Decreed by trial court -
-L 
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 -
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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, 
~ 
upholding the finding of first appellate court and held that 
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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 c 
considered in the proper perspective would have led to 
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 
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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 
F 
I 
.. 
and Ors. 1971(1) SCC 370, referred to 
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 PELLA TE 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. 
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The Judgment of the Court was delivered by 
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c 
" 
TARUN CHATTERJEE, J. 1. Delay condoned. 
2. Leave granted. 
3. Application for substitution is allowed. 
I , 
D 
,..J. 
4. This is an appeal filed at the instance of the plaintiff-
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appellant challenging· the judgment and decree dated 26th of 
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July, 2006 passed by the High Court of Judicature at Allahabad 
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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 
5. The appellant as plaintiff instituted a suit for permanent 
-l. 
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 purch

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