High Court · 2025

Heard Sri Arun Saxena learned counsel for the appellants and Sri Abhisht Saran learned counsel for the respondents. The instant second appeal has been filed by the defendants under Section 100 CPC assailing the judgment of reversal dated 24.02.2011 passed by the Additional District Judge, Court no.5, Unnao in Civil Appeal no.50 of 2008 whereby the first appellate court set aside the judgment and decree dated 07.04.2008 passed in Civil Suit no.119 of 2001, as a consequence, the suit for permanent injunction filed by the plaintiffs which was dismissed by the trial court has been decreed by the first appellate court. Submission of learned counsel for the appellants is that the plaintiffs could not establish their right over the disputed property in question i.e 'gond' (place which is utilized in villages for keeping animals, storing fodder and cutting hay etc). It is urged that the trial court has rightly dismissed the suit, however, the first appellate court allowed to get a fresh survey done. This was opposed by the appellants, however, without examining the survey commission, the said report has been accepted, as a consequence, no opportunity was granted to the appellants to contest the said survey report and the first appellate court has based its finding on the said survey report which is impermissible, accordingly, the judgment passed by the first appellate court cannot be sustained. It is urged that the plaintiffs have to stand on their own leg and noticing the aforesaid proposition the trial court had dismissed the suit. The first appellate court did not consider the evidences on record in a correct perspective and squarely relied upon the survey commission report, hence, the findings recorded are not sustainable and the instant second appeal deserves to be allowed. Learned counsel for the respondent submits that the suit of the plaintiffs was incorrectly dismissed, since there were admissions of the defendant himself establishing the possession of the plaintiffs. The location of the property was not disputed and in such circumstances, a suit for injunction based on possession could not be dismissed. This aspect has been rightly considered by the first appellate court. The survey commission report was only to satisfy the other corroborative evidence which was already led by the parties. The objections as raised by the appellants before the first appellate court was only in respect of the procedure relating to the survey commission and not on the intrinsic merits of the said report thus if the first appellate court which is also the court of jurisdiction along with trial court, it had ample power to call for a survey commission report and noticing the same, findings of fact have been recorded which is not assailable in exercise of powers under Section 100 CPC, consequently, the second appeal deserves to be dismissed. The Court has heard learned counsel for the parties and also perused the material on record. The record indicates that the instant second appeal was admitted by a coordinate Bench of this Court vide order dated 13.04.2011 on the substantial question of law as framed at Serial. no.1 in the memo of second appeal which for the ease of reference is being reproduced hereinunder:- "1.) Whether appellate court can reverse the well founded finding of trial court mere on the basis of disputed survey report." In the aforesaid backdrop, it will be relevant to notice that the plaintiffs respondent instituted Regular Suit no.119 of 2001 before the Civil Judge (Junior Division) North Unnao. It was pleaded that the plaintiffs were in possession of 'gond' marked by letters A, B, C, D which was part of old ahata no.5 which was morefully shown in the site plan annexed with the plaint in suit. It was further alleged that the defendant were attempting to interfere in the possession of the plaintiffs-respondent. Earlier the father of the defendant in collusion with one Ashok Kumar, who had been impleaded as defendant no.3 in the instant suit, attempted to take over the said land by filing the suit bearing no.310 of 1997. It was also pleaded that since the plaintiffs had moved an application in the said suit seeking their impleadment, the same could not be disposed of, hence, in order to protect its own right the plaintiffs instituted the instant suit bearing no.119 of 2001. In the aforesaid backdrop, it was prayed that the defendant be restrained from interfering in the possession of the plaintiff in respect of the 'gond' of the plaintiffs morefully described in the site plan forming part of the plaint in suit. The suit came to be contested by the defendant no.1 and 2 (the appellants herein) wherein they had denied the contentions in the plaint and further stated that they were the owners and in possession of the disputed 'gond' which was part of their property and not that of the plaintiffs. Upon the exchange of pleadings, the trial court framed three issues, however, for the purpose of instant appeal, it was only issue no.1 which was relevant and to the effect, as to whether the plaintiffs are owner in possession of disputed 'gond' as shown in the site plan annexed with the plaint. The parties led evidence and after analyzing the evidence of the respected parties the trial court found that the plaintiffs were unable to indicate their ownership and the possession over the disputed property and by means of judgment and decree dated 07.04.2008 dismissed the suit. The plaintiffs filed a Regular Civil Appeal under Section 96 CPC before the District Judge, Unnao which came to be registered as Civil Appeal no.50 of 2008. The first appellate court after hearing the parties and considering the survey report found that locationally the property in question could be identified, which was the near plaintiffs house, coupled with the fact that the possession was also found that of the plaintiffs and in the aforesaid backdrop, it allowed the appeal by means of the judgment and decree dated 24.02.2011 and it is this judgment of reversal which is under challenge in the instant appeal. Having considered the aforesaid submissions and from a perusal of the material on record, keeping in mind the substantial question of law as framed, it would reveal that the plaintiffs had filed the suit for injunction specifically stating that the disputed 'gond' was part of old ahata no.5 which was there in the family of plaintiffs since time of their forefathers and they continued to enjoy the possession and since defendants were attempting to encroach or disturb the possession, it necessitate the filing of the suit. This Court further finds that as far as the defendant no.1 is concerned, he entered into witness box and in his cross examination, he had clearly identified the property which was in consonance with the property as shown in the site plan forming part of the plaint in suit. In his cross examination, D.W.-1 also admitted that the plaintiffs were in possession of the same. In light of the aforesaid, admission which was elicited during the cross examination the finding of the trial court that the plaintiffs could not establish their possession apparently is perverse. The first appellate court being a court of co-extensive jurisdiction, it had the powers of reappraisal of the evidence which has been done and thereafter finding has been recorded in favour of the plaintiffs. Much emphasis was laid by the learned counsel for the appellants to state that the first appellate court committed an error in getting a survey commission done. At the outset, it may be noticed that the first appellate court which is both a court of law and fact, exercises the same powers as that of a trial court co-extensively and in order to clarify and to fix the location, it allowed the survey commission which cannot be faulted nor can it be construed to be in transgression of the powers conferred on the first appellate court in law. The appellants had also filed their objections to the said survey commission report bearing paper Ga-73 which came to be considered by the first appellate court and by means of a reasoned order dated 02.02.2011, it rejected the same. From a perusal of the said order, it appears that the appellants had merely assailed the report not on the factual aspect but on procedural aspect indicating that the settled principles for conducting a survey was not adhered. From a perusal of the order dated 02.02.2011, it would reveal that the first appellate court has taken note of the aforesaid objections and by a detailed and a reasoned order, it found that the survey commissioner had aptly submitted its report which was in consonance with the principles of survey, while locating the property, where triangulation were made which was compared with the settlement map and in this view of the matter, it cannot be said that the first appellate Court committed an error in rejecting the objections. three points Be that as it may, substantively the first appellate court having satisfied itself regarding the location of the disputed 'gond' and considering the evidence of the other witnesses and including the statements of D.W.-1 regarding the possession of the plaintiffs, it set aside the judgment passed by the trial court and decreed the suit. For the aforesaid reasons, this Court does not find that there is any patent illegality which can vitiate the judgment passed by the first appellate court. A feeble submission was also advanced by the learned counsel for the appellants to the effect that even if at all the first appellate court was entitled to get survey commission done but at the same time it ought to have examined the survey commissioner and then opportunity should have been granted to the appellants to cross examine and only, thereafter, it could have relied upon the said report or in the alternate, it could have remanded the matter to the trial court for fresh consideration. The aforesaid submissions of the learned counsel for the appellants is also fallacious for more than one reasons, apparently, the objections were invited on the said application which was availed by the appellants who filed their objections as already noticed above. Moreover, the objections did not hit on the merits rather it was on the process of commission. It is also relevant to notice that the judgment passed by the first appellate court is not based solely on the survey commission report rather it has taken note of other material evidence led by the parties during trial. In this view of the matter, there was no requirement for the first appellate court to have examined the survey commissioner. Any report submitted would naturally be subjected to the evidence available on record. It has not been demonstrated by the counsel for the appellants that any finding given by the Survey commissioner is contrary to other evidences led by the respective parties, including by the appellants and his witnesses. Even otherwise, this submission does not come to the aid of the appellants unless they establish that they suffered severe prejudice which has led to consequential failure of justice. In absence of the aforesaid ingredients, this Court is not inclined to accept the submission which is, accordingly, turned down. This Court is of the view that the judgment and decree passed by the first appellate court dated 24.02.2011 passed in Civil Appeal no.50 of 2008 does not suffer from any error which is accordingly, affirmed. The second appeal is dismissed. The record be returned forthwith. Costs are made easy. Order Date :- 31.7.2025 Harshita HARSHITA High Court of Judicature at Allahabad, Lucknow Bench

Heard Sri Arun Saxena learned counsel for the appellants and Sri Abhisht Saran learned counsel for the respondents. The instant second appeal has been filed by the defendants under Section 100 CPC assailing the judgment of reversal dated 24.02.2011 passed by the Additional District Judge, Court no.5, Unnao in Civil Appeal no.50 of 2008 whereby the first appellate court set aside the judgment and decree dated 07.04.2008 passed in Civil Suit no.119 of 2001, as a consequence, the suit for permanent injunction filed by the plaintiffs which was dismissed by the trial court has been decreed by the first appellate court. Submission of learned counsel for the appellants is that the plaintiffs could not establish their right over the disputed property in question i.e 'gond' (place which is utilized in villages for keeping animals, storing fodder and cutting hay etc). It is urged that the trial court has rightly dismissed the suit, however, the first appellate court allowed to get a fresh survey done. This was opposed by the appellants, however, without examining the survey commission, the said report has been accepted, as a consequence, no opportunity was granted to the appellants to contest the said survey report and the first appellate court has based its finding on the said survey report which is impermissible, accordingly, the judgment passed by the first appellate court cannot be sustained. It is urged that the plaintiffs have to stand on their own leg and noticing the aforesaid proposition the trial court had dismissed the suit. The first appellate court did not consider the evidences on record in a correct perspective and squarely relied upon the survey commission report, hence, the findings recorded are not sustainable and the instant second appeal deserves to be allowed. Learned counsel for the respondent submits that the suit of the plaintiffs was incorrectly dismissed, since there were admissions of the defendant himself establishing the possession of the plaintiffs. The location of the property was not disputed and in such circumstances, a suit for injunction based on possession could not be dismissed. This aspect has been rightly considered by the first appellate court. The survey commission report was only to satisfy the other corroborative evidence which was already led by the parties. The objections as raised by the appellants before the first appellate court was only in respect of the procedure relating to the survey commission and not on the intrinsic merits of the said report thus if the first appellate court which is also the court of jurisdiction along with trial court, it had ample power to call for a survey commission report and noticing the same, findings of fact have been recorded which is not assailable in exercise of powers under Section 100 CPC, consequently, the second appeal deserves to be dismissed. The Court has heard learned counsel for the parties and also perused the material on record. The record indicates that the instant second appeal was admitted by a coordinate Bench of this Court vide order dated 13.04.2011 on the substantial question of law as framed at Serial. no.1 in the memo of second appeal which for the ease of reference is being reproduced hereinunder:- "1.) Whether appellate court can reverse the well founded finding of trial court mere on the basis of disputed survey report." In the aforesaid backdrop, it will be relevant to notice that the plaintiffs respondent instituted Regular Suit no.119 of 2001 before the Civil Judge (Junior Division) North Unnao. It was pleaded that the plaintiffs were in possession of 'gond' marked by letters A, B, C, D which was part of old ahata no.5 which was morefully shown in the site plan annexed with the plaint in suit. It was further alleged that the defendant were attempting to interfere in the possession of the plaintiffs-respondent. Earlier the father of the defendant in collusion with one Ashok Kumar, who had been impleaded as defendant no.3 in the instant suit, attempted to take over the said land by filing the suit bearing no.310 of 1997. It was also pleaded that since the plaintiffs had moved an application in the said suit seeking their impleadment, the same could not be disposed of, hence, in order to protect its own right the plaintiffs instituted the instant suit bearing no.119 of 2001. In the aforesaid backdrop, it was prayed that the defendant be restrained from interfering in the possession of the plaintiff in respect of the 'gond' of the plaintiffs morefully described in the site plan forming part of the plaint in suit. The suit came to be contested by the defendant no.1 and 2 (the appellants herein) wherein they had denied the contentions in the plaint and further stated that they were the owners and in possession of the disputed 'gond' which was part of their property and not that of the plaintiffs. Upon the exchange of pleadings, the trial court framed three issues, however, for the purpose of instant appeal, it was only issue no.1 which was relevant and to the effect, as to whether the plaintiffs are owner in possession of disputed 'gond' as shown in the site plan annexed with the plaint. The parties led evidence and after analyzing the evidence of the respected parties the trial court found that the plaintiffs were unable to indicate their ownership and the possession over the disputed property and by means of judgment and decree dated 07.04.2008 dismissed the suit. The plaintiffs filed a Regular Civil Appeal under Section 96 CPC before the District Judge, Unnao which came to be registered as Civil Appeal no.50 of 2008. The first appellate court after hearing the parties and considering the survey report found that locationally the property in question could be identified, which was the near plaintiffs house, coupled with the fact that the possession was also found that of the plaintiffs and in the aforesaid backdrop, it allowed the appeal by means of the judgment and decree dated 24.02.2011 and it is this judgment of reversal which is under challenge in the instant appeal. Having considered the aforesaid submissions and from a perusal of the material on record, keeping in mind the substantial question of law as framed, it would reveal that the plaintiffs had filed the suit for injunction specifically stating that the disputed 'gond' was part of old ahata no.5 which was there in the family of plaintiffs since time of their forefathers and they continued to enjoy the possession and since defendants were attempting to encroach or disturb the possession, it necessitate the filing of the suit. This Court further finds that as far as the defendant no.1 is concerned, he entered into witness box and in his cross examination, he had clearly identified the property which was in consonance with the property as shown in the site plan forming part of the plaint in suit. In his cross examination, D.W.-1 also admitted that the plaintiffs were in possession of the same. In light of the aforesaid, admission which was elicited during the cross examination the finding of the trial court that the plaintiffs could not establish their possession apparently is perverse. The first appellate court being a court of co-extensive jurisdiction, it had the powers of reappraisal of the evidence which has been done and thereafter finding has been recorded in favour of the plaintiffs. Much emphasis was laid by the learned counsel for the appellants to state that the first appellate court committed an error in getting a survey commission done. At the outset, it may be noticed that the first appellate court which is both a court of law and fact, exercises the same powers as that of a trial court co-extensively and in order to clarify and to fix the location, it allowed the survey commission which cannot be faulted nor can it be construed to be in transgression of the powers conferred on the first appellate court in law. The appellants had also filed their objections to the said survey commission report bearing paper Ga-73 which came to be considered by the first appellate court and by means of a reasoned order dated 02.02.2011, it rejected the same. From a perusal of the said order, it appears that the appellants had merely assailed the report not on the factual aspect but on procedural aspect indicating that the settled principles for conducting a survey was not adhered. From a perusal of the order dated 02.02.2011, it would reveal that the first appellate court has taken note of the aforesaid objections and by a detailed and a reasoned order, it found that the survey commissioner had aptly submitted its report which was in consonance with the principles of survey, while locating the property, where triangulation were made which was compared with the settlement map and in this view of the matter, it cannot be said that the first appellate Court committed an error in rejecting the objections. three points Be that as it may, substantively the first appellate court having satisfied itself regarding the location of the disputed 'gond' and considering the evidence of the other witnesses and including the statements of D.W.-1 regarding the possession of the plaintiffs, it set aside the judgment passed by the trial court and decreed the suit. For the aforesaid reasons, this Court does not find that there is any patent illegality which can vitiate the judgment passed by the first appellate court. A feeble submission was also advanced by the learned counsel for the appellants to the effect that even if at all the first appellate court was entitled to get survey commission done but at the same time it ought to have examined the survey commissioner and then opportunity should have been granted to the appellants to cross examine and only, thereafter, it could have relied upon the said report or in the alternate, it could have remanded the matter to the trial court for fresh consideration. The aforesaid submissions of the learned counsel for the appellants is also fallacious for more than one reasons, apparently, the objections were invited on the said application which was availed by the appellants who filed their objections as already noticed above. Moreover, the objections did not hit on the merits rather it was on the process of commission. It is also relevant to notice that the judgment passed by the first appellate court is not based solely on the survey commission report rather it has taken note of other material evidence led by the parties during trial. In this view of the matter, there was no requirement for the first appellate court to have examined the survey commissioner. Any report submitted would naturally be subjected to the evidence available on record. It has not been demonstrated by the counsel for the appellants that any finding given by the Survey commissioner is contrary to other evidences led by the respective parties, including by the appellants and his witnesses. Even otherwise, this submission does not come to the aid of the appellants unless they establish that they suffered severe prejudice which has led to consequential failure of justice. In absence of the aforesaid ingredients, this Court is not inclined to accept the submission which is, accordingly, turned down. This Court is of the view that the judgment and decree passed by the first appellate court dated 24.02.2011 passed in Civil Appeal no.50 of 2008 does not suffer from any error which is accordingly, affirmed. The second appeal is dismissed. The record be returned forthwith. Costs are made easy. Order Date :- 31.7.2025 Harshita HARSHITA High Court of Judicature at Allahabad, Lucknow Bench