Sanjay Misra, J. - (1.) HEARD Sri Neeraj Agarwal, learned Counsel for the defendant -appellants and Sri R.K. Upadhyaya along with Sri D.N. Sharma, learned Counsel for the contesting plaintiff -respondents.
(2.) THIS is a second appeal under Section 100 of the C.P.C. against the judgment and decree dated 21.10.1989/5.11.1989 passed in Civil Appeal No. 14 of 1988 whereby the defendants' appeal has been dismissed and the judgment and decree of the trial court passed in Suit No. 183 of 1977, Radhey Shyam and Ors. v. Dori Lal and Ors. has been affirmed. Learned counsel for the appellants has submitted that substantial questions of law that arises in this appeal is ''whether the report of the Commissioner in Suit No. 33 of 1974, Radhey Shyam v. Dori Lal, wherein the defendant -appellants were not parties would be relevant and admissible in evidence against the defendants and reliance placed upon it to record a conclusion would vitiate the judgment'.
(3.) IN support of his submission learned Counsel for the appellants has referred to the findings recorded by the trial court on issue No. 1, which was as to whether the plaintiff -respondents are owner in possession of the property in suit which is situated in village Ram Nagala and whether the defendants have perfected their title by virtue of Section 9 of the U.P. Zamindari and Land Reforms Act. While referring to the findings recorded by the trial court and as affirmed by the 1st Appellate Court it has been submitted that the Kutumb register, Khatauni, voter list, order dated 31.8.1977 passed by the Pargana Magistrate, evidence of Onkar Nath Tiwari, Advocate Commissioner in Suit No. 55 of 1974, resolution of the Gram Pradhan were all disbelieved by the courts below for the reason that they have either not been proved in accordance with law or that they had no relevance in so far as the possession claimed by the plaintiff -respondents was concerned. Learned Counsel submitted that the courts below have recorded their finding in favour of the plaintiff -respondents only on the basis of a voter list exhibit No. 4, report of the police exhibit No. 4 and oral evidence of Chandrawati, exhibit No. 9, who stated that the plaintiff -respondents were in possession. According to him when all the documentary evidence was of no help to the plaintiff -respondents, the courts below have committed an illegality in relying upon the aforesaid evidence and oral statement for decreeing the suit of injunction against the defendant -appellants.;