- (1.) KAMAL Kishore, J. This is the second appeal against the judgment and decree dated 2-8-1980 passed by Sri N. B. Asthana, the then IInd Additional District Judge, Rae Bareli allowing the first appeal and setting aside the judgment and decree passed by the then III Additional Munsif, Rae Bareli in Suit No. 82 of 1978.
(2.) THE suit was filed upon the allegations that the plaintiff is the Bhumidhar of Plot No. 101 having an area of 8 Bis. , 15 Bis. This plot is in two parts. THE area of one part is 5 Bis. , 10 Bis. , while the other part is 3 Bis. , 5 Bis. He planted Mahuva and mango trees over this plot about 12 or 14 years back. THE area of 3 Bis. , 5 Bis. , of Plot No. 101 is contiguous to Plot No. 100 of the defendants in which his Katahal tree exists. Defendant No. 1 along with some of his companions plucked the Katahals of the aforesaid tree on 9-7-1976 causing a loss of Rs. 150 to the plaintiff. He filed a complaint regarding it. Defendant No. 1 and the other accused were convicted by the trial Court but acquitted in appeal. THE defendant claimed themselves to be the owner of the Katahal tree in question and therefore, the suit. Defendant No. 1 Ram Charan alone filed the written-statement in which he denied that the disputed Katahal tree lies in Plot No. 101 and that it is in possession of the plaintiff. According to him, this tree is about 70 or 80 years old. One Masoom Ali was the owner of this tree. After his death, Mubarak Ali and Mahamoodul Nishan came into possession thereof and appropriated the produce thereof. He got a sale- deed executed from Mubarak Ali and Mahamoodul Nishan and since then is in possession of the tree in question. It was denied that the tree in question lies in Plot No. 101 and it was alleged that he has also perfected his title by adverse possession of this tree. He claimed that the sale-deed by Mubarak Ali was executed with respect to Plot Nos. 100, 102, 104, 105 and 106 and that he is also the cultivator from the times of his father of Plot No. 103 and that the disputed Katahal tree lies in one of these plots. The following of law has been formulated by this Court : Whether the judgment and decree of the first lower appellate Court is perverse as per the grounds B, C, D and E of the memo of appeal?
(3.) I have heard the learned Counsel for the parties and gone through the records. The Court (the first appellate Court) is under duty to examine evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding. This is the situation in the present case.;