Kamal Kishore, J. - (1.) THIS is the second civil appeal against the judgment and decree dated 12th October, 1992, passed by the then IIIrd Additional District Judge, Sitapur in Civil Appeal No. 24 of 1990, dismissing the appeal and confirming the judgment and decree passed by the Munsif, Sitapur in Regular Suit No. 705 of 1981, which was a suit for possession and damages. The following questions of law have been formulated in this second appeal: 1. "Whether on the facts held by the Appellate Court in the first appeal the appellants are licensees?
(2.) WHETHER the Courts below have erred in not framing any issue as to the right of tenancy as alleged in question No. 5 of substantial questions of law given in the memo of appeal? 2. I have heard the arguments and have gone through the records. It has been argued by the learned counsel for the respondent that since there are concurrent findings of fact recorded by both Courts below against the defendants -appellants, the same cannot be interfered with in second appeal. R.of non -interference in concurrent findings of Lower Courts, held, is not an absolute rule of universal application - -What must be, examined, where second Appellate Court has interfered with such findings, is whether its conclusions are justifiable according to the parameters of consideration for interference under section 100, C.P.C. both Lower Courts dismissed suit of respondents for damages and for recovery of possession. High Court found that judgments of both Courts were vitiated due to perversity of reasoning and due to surmises and misreading of materials on record, having ignored evidence on record as has been held in the recent ruling in : (2001) 7 SCC 189. It has been further held in the aforesaid ruling of Hon'ble Supreme Court that the rule of non -interference in concurrent findings by the High Court in second appeal is not an absolute rule of universal application. Therefore, in cases of mechanical refusal by second Appellate Court to interfere matter may be relegated to such Court to deal objectively with the claims of parties keeping in view the parameters of consideration for interference under section 100, C.P.C. The argument of the learned counsel for the respondent, to the contrary, is not tenable.
(3.) ON the other hand, it has been argued by the learned counsel for the appellants that the defendants -appellants have filed a good number of documents before the learned Trial Court. The same were not considered by the Courts below which were vital evidence and the same could have led to a different conclusions and its omission by the Courts below is illegal and perverse and the Court below has further erred in relying on inadmissible evidence, which if omitted would have led to a different conclusion. In support of this contention, learned counsel for the defendants -appellants has cited the ruling of Hon'ble Supreme Court as in Ishwar Dass Jain v. Sohan Lal, : 2000 (39) ALR 756 (SC) in which it has been clearly held by the Hon'ble Supreme Court that the findings become perverse when vital evidence which could have led to a different conclusion was omitted by the Courts below or when inadmissible evidence was relied upon by the Courts below. If the same were omitted, they would have led to a different conclusion and accordingly the Hon'ble Supreme Court has held that the High Court can very well interfere in the second appeal under such circumstances. The same view has been taken by the Hon'ble Supreme Court in the recent ruling as in Hafazat Hussain v. Abdul Majeed, : 2001 (45) ALR 50 (SC).;