- (1.) KAMAL Kishore, J. This is the second civil appeal against the judgment and decree dated 30-9-1983 passed by the then District Judge, Lucknow maintaining the judgment and decree passed by the learned trial Court. The Substantial Questions of Law Nos. 4, 5 and 7 were formulated as the questions of law at the time of admission of this appeal on 5-10-1983. These questions of law are as follows: (4) Whether the appellant can at all be termed as an unauthorized occupant on the face of Paper No. C- 25. (5) Whether there was any encroachment by the plaintiff in view of the specific report given by the Advocate Commissioner to the effect that the shop over the land in suit was well within the park. (7) Whether the findings recorded by the Courts below are at all tenable in view of the fact that the same are based on complete misreading of evidence on record.
(2.) I have heard the arguments and have gone through the record. It has been argued by the learned Counsel for the appellant that the findings recorded by the Courts below are perverse and illegal and since the plaintiff-appellant was in possession of the land in question by virtue of valid allotment order (Paper No. C-25) etc. and since the Advocate Commissioner has also found possession of the plaintiff, the findings recorded by the Courts below are not tenable at all and the Courts below have erred in misreading the evidence on record. I find that there is substance in this argument advanced by the learned Counsel for the plaintiff- appellant. The plaintiff- appellant Smt. Sukh Rani is admittedly carrying on business of sale of sweets under the name and style of 'mangal Prasad Wale'. The plaintiff-appellant has alleged that she is regularly paying lease charge to the defendant for the last 13 years for which receipts were being issued by the Nagar Palika. The evidence on record supports this fact. Paper Nos. C/1 to C/11 are the receipts relating to permit fee of the shop in suit. A commission was also issued in this case and the Commissioner's report (Paper No. C-13) is dated 11-3-1981. In the aforesaid report, the Commissioner has found that a tin-board was affixed on the disputed shop in which it has been written 'mangal Prasad Wale' 'proprietor Smt. Sukh Rani' in the park of Hanuman temple situated in front of Allahabad Bank, Aminabad. It has been further written in this Commissioner's report that the plaintiff- appellant Smt. Sukh Rani was herself present in the shop in which she sells the sweets etc. All these show that the plaintiff- appellant was in possession of the shop in suit even after filing the suit for injunction. A person in possession can very well maintain the suit for injunction on the basis of her possession etc. The Courts below have thus erred in holding otherwise.
(3.) THE Court (the first appellate Court) is under a 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 as 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. Where the findings by the Court of facts is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar, 1995 Suppl. (4) SCC 534; 1993 AIR SCW 3978; AIR 1994 SC 532, it was held that where certain vital documents for deciding the question of possession were ignored such as a compromise, on order of the Revenue Court reliance on oral evidence was unjustified. In yet another case in Mehrunissa v. Visham Kumari, (1998) 2 SCC 295; 1998 AIR SCW 3; AIR 1998 SC 427, arising out of Second Appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was (sic) based on earlier notices, was vitiated and the High Court could interfere with such a findings. The second situation in which interference with finding of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh, (1992) 1 SCC 143: 1991 AIR SCW 2813: AIR 1992 SC 123, it was held that the High Court was right in interfering in Second Appeal, as has been held by Hon'ble Supreme Court in the ruling reported in AIR (2000) Supreme Court 426, Ishwar Das Jain v. Sohan Lal.;