1 Neutral Citation No. - 2025:AHC-LKO:43039 Court No. - 8 Case :- SECOND APPEAL No. - 273 of 2011 Appellant :- Triveni Prasad Misra Respondent :- Banshilal Counsel for Appellant :- S.K. Mehrotra,I.D. Shukla,Ishwar Dutt Shukla,Santosh Kumar Mehrotra Counsel for Respondent :- A.P. Singh Vishen,A P Singh Vishen ***** Hon'ble Jaspreet Singh,J. 1. Heard Shri I.D. Shukla, learned counsel for the appellant. 2. The instant second appeal has been preferred by the appellant, under Section 100 CPC, who was the plaintiff before the trial Court, assailing the judgment and decree of reversal dated 17.08.2011 passed in Civil Appeal No.123/2008, whereby the Additional District Judge, Court No.11, Gonda allowed the defendant's appeal, as a consequence, the suit for injunction decreed by the trial Court has been reversed and dismissed by the First Appellate Court. 3. The submissions of the learned counsel for the appellant is twofold. (i) It is urged that the First Appellate Court has misread the pleadings as well as the evidence and completely ignored the admission of DW- 3 which clearly established the possession of the plaintiff and in such circumstances, it was not open for the First Appellate Court to have reversed the judgment passed by the trial Court. (ii) The second limb of the submission is that once the findings of fact had been recorded by the trial Court, it was not open for the First Appellate Court to have allowed the defendant's appeal without reversing the findings recorded by the trial Court. It is also stated that 2 the First Appellate Court has not taken or noticed the controversy in the correct perspective inasmuch as in a suit for injunction primarily it was the case of the plaintiff based on possession which should have been considered and this fact was already admitted as well as the user was also established by a Commissioner's report which was never controverted and in such circumstances, the findings recorded by the First Appellate Court are erroneous and the second appeal deserves to be admitted. 4. The Court has considered the submissions advanced by the learned counsel for the appellant and also perused the material on record. 5. At the outset, it may be noticed that the plaintiff-appellant had filed a suit for injunction, registered as Regular Suit No.691/1995. Paras-1, 2 and 3 of the plaint, a copy of which has been brought on record as Annexure No.1, will be relevant to be noticed for the purposes of evaluating the submissions of the learned counsel for the appellant. 6. In the aforesaid paragraphs, it was stated that the plaintiff as well as defendant were old residents of their respective properties and they had acquired the said land much prior to the abolition of Zamindari in the year 1951 and since then they were residing as well as exercising their rights of beneficial user of appurtenant land (as the sehan). 7. It was also pleaded that the plaintiff has been in possession since last several years prior to the abolition of Zamindari and over the disputed property, the plaintiff had sown Lime Trees, Guava Trees and it was also used for teetering of animals and also for storing fodder amongst other 3 uses. It was pleaded that the defendant had no right, title or interest and he was attempting to encroach upon the said land. Accordingly, a suit for injunction was filed with the aforesaid pleadings. 8. The suit came to be contested by the defendant and upon exchange of pleadings, the trial Court had framed five issues, however, for the purposes of the instant appeal, it is the Issue No.1 which was germane. The said issue was framed as to whether the plaintiff is the owner in possession of the disputed property. The trial Court while dealing with the aforesaid issue, noticed the evidences led by the plaintiff's witnesses and made a mention of the evidence led by the defendant and on the basis of appraisal recorded a finding that the plaintiff was able to establish his case and also noticed that there was an admission in the statement of the DW-3, which was sufficient to establish that the plaintiff's case was duly substantiated and taking note thereof vide judgment and decree dated 18.09.2008, the trial Court decreed the suit. 9. The defendant being aggrieved carried the matter in first appeal bearing No.123/2008 and the First Appellate Court taking note of the evidence led by the plaintiff including his cross-examination wherein certain admissions as well as crucial statement were elicited which cast a doubt that the case as pleaded by the plaintiff including the fact that it amounted to certain concealment of the material facts. It is in the aforesaid backdrop that the First Appellate Court by means of its judgment and decree dated 17.08.2011 allowed the defendant's appeal after setting aside the judgment of the trial Court, as a consequence, the suit for injunction, which was decreed by the trial Court, was dismissed. 4 10. Apparently, considering the basic core where the plaintiff in his plaint had pleaded his right over the disputed property having coming through the time of his ancestors did not find favour with the First Appellate Court for the following reasons:- (a) admittedly, the land in question came into the hands of the plaintiff only after a family settlement and it is in furtherance thereof that the plaintiff had raised constructions somewhere around the year in 1965. (b) the First Appellate Court also noticed that the land which was the subject matter of dispute was not the land which was the subject matter of the plaintiff's residence which belonged to his ancestors. (c) the plea of Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act of 1950') to claim title over the disputed property as land appurtenant (sehan) to only have been proved if it was established that the rights of the plaintiff was there prior to the abolition of Zamindari. 11. As per the own admission of the plaintiff the findings of the First Appellate Court could not be proved to be incorrect for the simple reason that the plaintiff himself stated that he came into the property in question and raised constructions in the year 1965, hence, he could not have claimed a right over the property prior to the abolition of Zamindari which happened in 1951. Moreover, it was an admitted case in terms of Para-1 of the plaint that both the plaintiff as well as the defendant were residents of the place since the time of abolition of Zamindari, hence, that statement as 5 far as the defendant was concerned, was an admitted fact for the plaintiff, hence, he could not have claimed an indirect right against the defendant by having come into possession and raising constructions in the year 1965. It is with the aforesaid finding that the First Appellate Court dismissed the suit after allowing the defendant's second appeal. 12. It is in the aforesaid backdrop, the evidence which has been considered by the First Appellate Court if seen in contradistinction to the manner in which the trial Court has appraised the evidence, it would indicate that the trial Court committed an error in appraising the evidence by noticing a single sentence that the plaintiff has been able to establish his case. Whereas there is no consideration regarding the admissions made by the plaintiff which were elicited from his cross-examination to the effect that he came into the property only after 1965. He also admitted that he got the share in the said property as an outcome of the family settlement during consolidation operations which commenced only in and around the year 1965. 13. Hence, his basic plea that he has been there since the time of his ancestors prior to abolition of Zamindari was patently incorrect, therefore, the findings of the trial Court that the plaintiff has been able to make out a case is against the weight of the material on record. The trial Court also committed a grave error in not considering the evidence of the defendant inasmuch as by single stroke of pen it was stated that the defendant's witnesses were interested but without disclosing as to how their evidence was interested. Even if at all the said witnesses were interested, whether their testimony could have been discarded completely or could have been 6 considered with caution. In law, as prevalent in this country even if an interested witness is in the witness-box, then his testimony has to be examined with a more caution rather to discard it altogether. Thus, the evidence and the manner it was considered by the trial Court, who came to conclusions, were patently erroneous. 14. In contradistinction to the above, once the manner in which the First Appellate Court which is a Court of coextensive jurisdiction and while exercising its powers under Section 96 CPC, it is both authorized to examine the issues of fact and law and in that context once the evidence was appraised and it found that the plaintiff had misrepresented material facts regarding the manner in which he acquired the property and on impression was given that he has been there since the time of his forefathers but failed to plead and disclose that he had received the property only somewhere around the year 1965 and thereafter he had raised the constructions. It is for the aforesaid reasons that these admissions which were elicited during cross-examination become crucial in order to ascertain as to whether the plaintiff could have maintained the suit for injunction for sehan land. 15. It is taking note of the above, the First Appellate Court found that it is not the case of the plaintiff only on the basis of his possession rather the claim title on the premise of the pleading under Section 9 of the Act of 1950 was also not proved as per law. 16. It is for the said reason where the plaintiff could not prove the basic plea of Section 9 of the Act of 1950, the First Appellate Court has allowed the defendant's appeal and set aside the judgment and decree passed by the 7 trial Court. Thus, there is no error committed by the First Appellate Court. This Court is satisfied that no substantial question of law arises in the instant appeal. 17. Accordingly, the second appeal is devoid of merits and it is dismissed at the admission stage itself. Costs are made easy. 18. The judgment and decree dated 17.08.2011 passed by the Additional District Judge, Court No.11, Gonda in Civil Appeal No.123/2008 is affirmed. Order Date :- 25.07.2025 Rakesh/- Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench