Full Judgment
N.K. Mehrotra, J.
1. This is second appeal under Section 100 of the Code of Civil Procedure against the judgment and order dated 12.11.1982, passed by District Judge, Gonda in Civil Appeal No. 128 of 1982, Raj Dutt v. Shobha Ram allowing the appeal and setting aside the judgment and decree dated 5.5.1982 passed by Munsif, Gonda in Regular Suit No. 454/1981, Raj Dutt v. Shobha Ram.
2. I have heard Shri Mohd. Afzal holding brief of Shri Z. Zilani for the appellant and Shri N.N. Jaiswal for the respondent.
3. It appears that the plaintiff-respondent filed a suit for injunction over the land shown by letters ^^v c l n** known as bamboo clumps for restraining the defendant from interfering in the possession of the plaintiff. The case of the plaintiff was that the disputed land has been in his use and possession and the bamboo clumps was raised by his ancestor over the disputed land. The sahan of the house of the defendant is in the west of his house while the disputed land is in the back of his house and the defendant has no concern either on the land or on the bamboo clumps.
4. The defendant contested the suit with the allegations that the sahan of the house of the plaintiff is in the east in which the plaintiff has constructed a new door a year ago. There is a window in the east of the house of the defendant which is used for going towards the bamboo clumps by his family members and he is the owner in possession over the bamboo clumps.
5. The learned Munsif framed the following issues :
(i) Whether the disputed land
shown by letter '???(I)' in the map prepared by Commissioner is the sahan land of the plaintiff and he is in possession over it?
(ii) Whether the disputed land is the back side of the house of the defendant and it is in use of the defendant as the back of the house?
(iii) Whether the plaintiff is the owner of kothi baans (bamboo clumps)?
(iv) Whether the defendant is the owner of the land in the bamboo clumps standing over it?
(v) To what relief is the plaintiff entitled?
6. Learned Munsif decided all the issues against the plaintiff and dismissed the suit. Plaintiff filed the first appeal which was allowed by the District Judge, Gonda. It is against this judgment, the instant second appeal has been preferred.
7. At the time of admission of appeal following substantial questions of law were formulated :
(i) Whether the findings recorded by the learned lower appellate court without examining the relevant and material evidence available on record, could at all be treated as a finding of fact?
(ii) Whether the finding of the learned lower appellate court stands vitiated on account of misreading of evidence and also because material evidence was ignored by the learned lower appellate court?
8. A perusal of the judgment of the trial court and the first appellate court goes to show that a Commission was issued by the Court for the purpose of showing the spot situation to Bindeshwari Prasad, advocate. He prepared the map paper No. 12C/2 dated 16.12.1981. Later on defendant filed objections, and he got prepared another report by another advocate Shri Jagdish Prasad Srivastava. Learned trial court relied on the Commissioner report prepared by Shri Jagdish Prasad Srivastava who was one of the witnesses of the defendant and who has prepared the map at the instance of the defendant.
9. The learned appellate court after recording reasons relied on the map prepared by Shri Bindeshwari Prasad who was appointed Commissioner by the Court. The 1st appellate court formulated a question 'who planted these bamboo clumps and who have been in possession over the bamboo clumps. After taking into consideration the entire oral evidence and the spot situation shown by the court Commissioner in his map, the learned first appellate court recorded the finding that defendant did not have any door towards the disputed bamboo clumps which is in the back of defendant door. It was also held that the door of the defendant house is towards west. So there is a least probability about the plantation of the bamboo clumps by the defendants in the back of their house where there is no door in their house. The learned 1st appellate court also held that the first report of Shri Bindeshwari Prasad Srivastava is according to the spot situation because it is early in time and later on there is a probability that after opening of a window towards the bamboo clumps, defendant has got prepared this report by Shri Jagdish Prasad Srivastava. So the finding recorded by the 1st appellate court are based on the entire evidence and the circumstances of the spot situation. It is wrong to contend that the learned lower appellate court has not examined the entire material evidence and it is also incorrect to say that there is any misreading of the evidence by the first appellate court. The learned 1st appellate court has preferred to rely on the map prepared by the Court Commissioner which was earlier in time in stead of the map prepared by Shri Jagdish Prasad Srivastava who is the witness of the defendant and who has prepared the map at the instance of the defendant.
10. The learned counsel for the appellant has referred the decision of Supreme Court in Boondar Singh and Ors. v. Nihal Singh and Ors., 2003 (5) AWC 4366 in which it has been held that the High Court can interfere when findings are perverse and contrary to the evidence on record.
11. Learned counsel for the appellant has also referred another decision of the Apex Court in Ishwar Das Jain v. Sohan Lal, 2000 (1) AWC 2.1 (SC) (NOC) : (2000) 1 SCC 464 in which it has been held that a substantial question of law will arise when vital evidence which should have led to a different conclusion, was omitted.
12. So far as the legal proposition laid down in the two decisions aforesaid is concerned, cannot be disputed but at the same time I find that the existence of substantial question of law is the sine qua non for exercise of jurisdiction under Section 100, C.P.C. and the High Court cannot substitute its own finding by re-appreciation of evidence merely on the ground that another view was possible. In Thaigrajan and Ors. v. Shri Venugopalan B. Koel and Ors., 2004 (3) AWC 1988 (SC) : (2004) 6 SCC 762, same legal proposition has been laid down by the Apex Court. Here both the substantial question of law on which the appeal has been admitted relate to the appreciation of the evidence on record. According to the learned counsel for the appellant, the material evidence in the form of report and map prepared by Shri Jagdish Prasad Srivastava a witness of the defendant has not been read by the 1st appellate court and the finding of the first appellate court is the result of the misreading of the evidence. After perusal of the reasoning given by the 1st appellate court, I do not agree with this contention raised by the appellant. The learned 1st appellate court has considered the entire oral evidence. Since there is no documentary evidence, the first appellate court has taken into consideration the map prepared by the Court Commissioner and the map prepared by the defendant witness Shri Jagdish Prasad Srivastava and the appellate court has given the reasonings for discaring the report of the witness of the defendant Shri Jagdish Prasad Srivastava and he has decided the case on the basis of the probable circumstances on the spot. It amounts to appreciation of evidence. Therefore, I am not inclined to interfere in the findings of facts recorded by the learned 1st appellate Court.
13. In view of the above, this second appeal is dismissed with cost to the respondent.