D. S. Bajpai, J. - (1.) THIS is a plaintiffs second appeal assailing the judgment and decree dated 21-4-79 passed by the Civil Judge, Rea Bareli in Civil Appeal No. 172 of 1978 allowing the appeal and setting aside the judgment and decree dated 16-9-78 passed by the Munsif, Dalmau, Rae Bareli decreeing the plaintiff's Regular Suit No. 92 of 1977 for grant of permanent injunction.
(2.) THE plaint allegations were that on plot no. 2358/2, area 12 Biswas, situated in village Arkha, Pargana and Tahsil Salon in the district of Rae Bareli, which was recorded as Banjar in the revenue record, the plaintiff planted 4 mango trees, 2 Bel trees, 4 Ber trees, 3 Neem trees, 3 Babul trees and Mahuwa and bamboo clump. It was further stated in the plaint that the said plot was surrounded by the plaintiff's plots and that the usufructs of the trees planted by the plaintiff were being enjoyed by him. THE age of the trees is stated to be about 30 years. THE defendant along with two others threatened to cut away the trees some time in August 1977 and hence the necessity of filing the instant suit for permanent injunction. THE defendant contested and took the plea that the disputed land being Banjar and that he having obtained Patta of the said land on 29-12-75 from the Gaon Sabha whereafter he having been recorded as Sirdar of the said land had a right over the land. As regards the trees, it was pleaded that the trees did not belong to the plaintiff. It was also stated that the plaintiff failed to obtain permission from the Gaon Sabha to plant the disputed trees and that the age of the trees had been exaggerated. Jurisdiction of the civil court to try the suit was also challenged. THE trial court framed issues on the pleadings of the parties and recorded a finding that the trees were planted by the plaintiff and that he enjoyed its usufructs and on this finding the suit was decreed. THE lower appellate court on re-appraisal of evidence held that the plaintiff not having succeeded in proving the factum of the trees having been planted by him as also having failed to establish that he enjoyed the usufructs of the trees was not entitled to a decree for permanent injunction. Aggrieved, the plaintiff has come up in second appeal before this Court. I have heard learned counsel for the appellant, Sri P. C. Srimal, at some length and perused the record. The learned counsel contended that the lower appellate court in reversing the judgment and decree of the trial court lost sight of four important circumstances and these were firstly, that it did not take into consideration that the plaintiff's fields surrounded the plot of land on which the trees in dispute were situate ; secondly, that the trees were not of spontaneous growth and had to be planted to grow and that it was established that the plaintiff was enjoying the usufructs of the said trees, thridly, that the lower appellate court also lost sight of the fact that the trees did not find mention in Patta dated 29-12-75 granted by the Gaon Sabha in favour of the defendant and ; fourthly, that the age of the trees had been fully borne out by the Commissioner's report. A reading of the judgment of the lower appellate court clearly indicates that while deciding the appeal, the court considered all aspects of the evidence and after sifting evidence it came to the conclusion that the plaintiff had failed to establish his claim to the effect that it was he who planted the trees and that he enjoyed the usufructs of those trees. Needless to point out that no documentary evidence having been produced by the plaintiff, the Court examined oral evidence produced by the plaintiff in the form of his own testimony, that of the PW 2 Chhabinath and PW 3 Sunder. After discussing this evidence, the court was of the view that the trees were not established to have been planted by him and that the witnesses were not independent witnesses inasmuch as PW 2 Chhabinath had stated in his cross-examination that " he often borrows money from the respondent-plaintiff. Evidently he is an interested witness and his evidence does not in any way support the respondent-plaintiff. " PW 3 Sunder, as stated by the lower appellate court, " in the very first line of his cross-examination has admitted that the trees were not planted in his presence. " This leaves no oral evidence to be considered in favour of the plaintiff except the testimony of the plaintiff and the testimony of the plaintiff has been rejected in view of the fact that at the time of his evidence he stated " that while he was in service of Shiv Mangal Singh Zamindar of the plot in suit, Shiv Mangal Singh had granted permission to the respondent plaintiff to plant trees on the land in suit. It would be seen that the respondent-plaintiff has nowhere pleaded this fact in the plaint. " Thus it can not be said that the lower appellate court's findings were vitiated on account of the fact that the court did not consider the material evidence on record and did not record findings about ownership and possession of the trees in dispute which, on perusal, I find has been carefully considered and no attack can be made on the lower appellate court's judgment.
(3.) LASTLY, the learned counsel contended that in view of the decision of their Lordships of the Supreme Court in the case of M/s. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207 this Court had power to interfere in- a second -appeal even where the concurrent findings of fact are assailed in case injustice has to be remedied. The Supreme Court in paragraph 6 of the said judgment has laid down as a rule of law : " It cannot be overlooked that three courts have held concurrently in this case that the respondent has proved that he requires the suit premises bona fide for his personal need. Such concurrence, undoubtedly, has relevance on the question whether this Court should exercise its jurisdiction under Art. 136 of the Constitution to review a particular decision. That jurisdiction has to be exercised sparingly. But, that cannot possibly mean that injustice must be perpetuated because it has been done three times in a case. The burden of showing that a concurrent decision of two or more Courts or Tribunals is mainfestly unjust lies on the appellant. But once that burden is discharged, it is not only the right but the duty of this Court to remedy the injustice. " In the case in hand it will be observed that the appellant has failed to establish that the concurrent decision of the two courts below is mainfestly unjust inasmuch as the learned counsel has failed to show as to how the court has perpetuated injustice and I also fail to find on appreciation of evidence that the concurrent finding requires any interference, and this Court sitting in second appeal would not exercise the discretion which has to be exercised sparingly for sifting the evidence once again when no case of palpable injustice having been perpetrated is made out. No other point was urged.;