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Vishwanath v. Chandrika - SECOND APPEAL No. 298 of 1976 [2007] RD-AH 14199 (17 August 2007)


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Vishwanath Ahir (deceased)  through

his LR's & Others                                   ........... Defendants-Appellants


Chandrika Ahir                                        ............ Plaintiff-respondent


Hon'ble Pankaj Mithal, J.

A suit for permanent injunction and for removal of sugar cane crushing machine from the disputed land was filed by the plaintiff-respondent against the defendants-appellants. The suit was dismissed by the trial court as barred by time as well as by principles of estoppal and acquiescence and a finding was returned that the plaintiff-respondent was not the owner of the disputed land and, therefore, the  Sugar Cane Crushing Machine is not liable to be removed. However, in appeal, preferred by the plaintiff-respondent, the judgment and order of the trial court was set aside and the suit was decreed.

Learned counsel for the appellant has contended that the suit was not liable to be decreed as has been done by the lower appellate court as it was barred by time and the finding to this effect recorded by the trial court has not been set aside. He has further submitted that the lower appellate court has not set aside any of the findings recorded by the trial court and, therefore, the appeal was not liable to be allowed.

I have perused the judgments and orders of the Courts below. The trial court on issues No. 3, 4 and 5 in its judgment and order dated 17.3.1975  recorded that the plaintiff-respondent failed to prove his case and he is not the owner in possession of the disputed land. The defendants-appellants have matured their rights/title over it by adverse possession. Therefore, the sugar cane crushing machine installed on the said land is not liable to be removed . On issues No.6 and 7 the trial court held that as the defendants-appellants are in possession of the disputed land for more than 31 to 32 years therefore, the suit is patently barred by time and principles of estoppal and acquiescence.

A perusal of the judgment and order of the lower appellate court reveals that it has not dealt with issues No. 6 and 7 in any manner. The finding on these two issues have remained untouched by the lower appellant court with the result that the findings that the suit is barred by time and by estoppal and acquiescence become final and conclusive. Therefore, in view of the findings on the above two issues which have not been set aside, the lower appellate court was not competent to allow the appeal and decree the suit on merits.

Even on issues No. 3, 4 and 5 the lower appellate court neither recorded any categorical finding that the plaintiff-respondent is the owner in possession nor has reversed the finding of the trial court that the defendants-appellants have not perfected their rights by adverse possession. Therefore, again the trial court erred in law in allowing the appeal and decreeing the suit without specifically setting aside the finding of the trial court on the said issues. In AIR 1983 SC 114 Madhusudan Das Vs. Smt. Narayani Bai and others it has been observed that as a general rule the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient documentary evidence to record a finding otherwise. No such special feature existed before the lower appellate court for taking a contrary stand to that of the trial court.

Sri S. L. Yadav, learned counsel appearing for the plaintiff-respondent placing reliance upon a Single Judge judgment of this court reported in (1995) 1 C.R.C. 53 Ram Kumar and another Vs. Ram Keshar contended that the findings recorded by the first appellate court should not be disturbed by the appellate court unless found illegal. The said ruling is not applicable under the facts and circumstances of the present case. The second appellate court is not considering the correctness of the findings of the lower appellate court but is ceased with the matter as to whether the lower appellate court was competent to allow the appeal and decree the suit without setting aside the findings recorded by the trial court either on merits of the case or on the technical issues relating to suit being barred by time, estoppal and acquiescence. Undisputedly, the finding of the trial court that the suit was barred by time, estoppal and acquiescence have not been disturbed by the lower appellate court. Therefore, the conclusion is inevitable that the lower appellate court exceeded its jurisdiction in allowing the appeal without upsetting the aforesaid findings.

In view of the above, the appeal succeeds.  The judgment and order of the lower appellate court dated 17.3.1975 passed in Civil Appeal No. 51 of 1975 (Chandrika Ahir Vs. Vishwanath Ahir and others) is set aside with costs upon the parties.


Dt.    17th August 2007


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