- (1.) S. K. Phaujdar, J. This second appeal is at the instance of the defendant, who are aggrieved by the judgment of the 1st Additional District Judge, Jaunpur, in Civil Appeal No. 58 of 1974, dated 11-9-79. The first appellate court had modified the decree of the trial Court passed in original Suit No. 202 of 1968 by the Munsif, Shahganj, on 11-4-74, whereby the suit of the plaintiff Ramdev was dismissed.
(2.) THE plaintiff Ramdeo, predecessor of the present respondents, filed the suit for plot No. 293 situated in village Kheta Sarai measuring -09 acres claiming the land to be his tenancy plot. It was stated that in the western portion of this land, as shown by letters ABC and D in the map annexed to the plaint, he had his own construction. Appurtenant to this construction there lay a portion of the- land marked by the letters B C D E and F which was being used by him as a Sahan- and Pichwara, to the further east of this Pichawara there was a well and a Paudar belonging to the plain tiff. Next to the well and Paudar a further portion of 0. 02 acres of this very plot was there. THE defendants purchased this 0-02 acres of land from the plaintiff by means of a sale-deed and were in possession thereof. But. they had no concern with the western portion of the land beyond the above said 0-02 acres land. It was alleged that in June, 1986 when the plaintiff wanted to make a construction on the portion marked by letters B, C, D, E and F, th'e defendant threatened to interfere. According ly, the plaintiff filed the suit for prohibitory injunction to restrain the defendant from such act. The defendant contested the suit and stated that plot No. 293 with an area 0-09 acres was a Bhumidhari of the plaintiff and his house lay on the western portion thereof. It was alleged that on 18- 11-64 the plaintiff had a talk with the defendant for the sale of the entire 0-09 acres land of plot No. 293 to the defendant and in fact a sale deed was executed for Rs. 96/ -. The plaintiff also delivered possession to the defendant over a portion except the house. The well and paudar lay in the land purchased by the defendant by means of the sale-deed. When the defendant tried to make some construction on the land so purchased, one Ram Adhar, a witness to the sale deed, demanded a portion of the land from the defendant and on refusal he influenced the plaintiff to file the suit. It was stated that no portitipn of the disputed land was the Sahan or Pichawara of the plaintiff's house. The legality of the suit was challenged on the ground of limitation and estoppel and also under the provisions of Sections 31, 38 and 41 of the Specific Relief Act. The trial Court framed issues touching the title and possession of the plaintiff on the suit properties as also of the defendant on the portion of the suit property purchased by him. The question of maintainability of the suit on the legal pleas were also raised before the court below and the court had further framed an issue on the question of jurisdiction. The trial Court found that the plaintiff was not the owner in possession of the disputed plot while the "defendant was transferred the possession for the same to the extent of the land lying east of the plaintiff's house. The maintainability of the suit. on legal points was not challanged at all. The suit was held maintainable but on a decision on facts it-was dismissed with costs. The first appellate court found on facts that the disputed portion of the land did not fall fully in plot No. 293. According to him only some portion of it towards East shown by letters Pa, Pha, Ka and Kha in the 2 maps and also some portion towards South West situated between the Paudar and the house of Din Mohd. lay in plot No. 293 while a major portion of the suit property lying towards the East and West of the Paudar in plot No. 292 and the plaintiff (as also the defendant) laid no claim on plot No. 292. The learned first appellate court came to a finding that the suit of the plaintiff had to fail in respect of plot No. 292 forming part of the suit property. The first appellate court also considered the case for the portion of the land in suit that lay between the eastern wall of Din Mohammad and the western line of the Paudar as shown in the maps. He found the plaintiff to be the owner thereof and the same was never transferred to the defendant. The first appel late court also found on fact that the plaintiff never intended to sell his 0-09 acres of land in plot No. 293 and he had put his thumb impression under the belief that he was only signing an "yaddast" for writting a document subsequently. The suit was partly decreed by the first appellate court for that portion of the disputed land which was found to be belonging to the plaintiff. This portion was described by letters Pa, Pha, Ka, Kha and was also described to be lying towards East of Din Mohammad and West of the Paudar. The defendants were restrained from interfering with the plaintiff's possession on that portion of the suit property. The appeal was admitted on 2 substantial question of law (1) Whether the plaintiff could be granted a decree for injunction without cancellation or rectifica tion of the sale deed under which the defendants claimed to purchase the land from the plaintiff, and (2) Whether the lower appellate court was justified in granting a decree for injunction without recording a clear finding that the plaintiff was in actual possession of land in respect of which the injunction was granted.
(3.) IT was argued that the first appellate court while reversing the judgment of the court below failed to give reasons for his conclusion and when it was only an appreciation of the oral testimony, the trial Court finding should be given more weight than that of the first appellate court as the trial Court had a chance to look to the demeanure of the witness examined before it. The appellant further contended that no injunction could have been granted without cancellation of the deed for which the plaintiff had not made any prayer and when there was no finding of possession, no injunction should have been granted. IT was further contended that the learned first appellate court had overlooked certain admissions made by the plaintiff. On behalf of the respondents it was contended that the plaintiffs have sold only 2 decimals and not all the 9 decimals in plot No. 293 and the paper was wrongly prepared. No possession was delivered to the defendants. According to the learned counsel, no prayer for cancellation was necessary as the plaintiffs knew that it was only a Yaddast that was being written. The learned counsel also took me through certain decisions in support of their contentions. As indicated above, the appellants raised a point that when the suit was decided on appreciation of the oral evidence the finding of the trial Court should be given more weight than that of the first appellate court. The learned counsel relied on the judgment of the Supreme Court in the case of Madhumdhan Dass v. Smt. Narain Bala, AIR 1983 SC 114. In this decision the Supreme Court held that in an appeal against a trial court decree, when the appellate court considered and issue turning on oral evidence, it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they had given their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses the general rule was that the appellate court should permit the findings of fact rendered by the trial court to prevail, unless it clearly appeared that some special features about the evidence of a particular witness had escaped the notice of the trial Court or there was a sufficient balance of improbability to displace, its opinion as to where the credibility lay.;