JUDGMENT Kamal Kishore, J.
1. This is the second civil appeal against the judgment and decree dated 16.10,1982 passed by Sri Raman Prakash, the then IVth Additional District Judge, Faizabad in Civil Appeal No. 20 of 1980 allowing the appeal of defendants-respondents and dismissing the Suit (No. 9 of 1979) of the plaintiff-appellant. The suit was for permanent injunction.
2. The following question of law has been formulated in this second appeal :
"Whether the learned first appellate court has erred in not granting the relief to the plaintiff-appellant although it has upheld the findings of the trial court on the issue of possession over the house and sehan in suit in favour of the plaintiff-appellant?"
3. I have heard the arguments and have gone through the records.
4. It has been argued by the learned counsel for the plaintiff-appellant that the learned lower appellate court has erred in allowing the appeal and dismissing the suit of the plaintiff-appellant although the lower appellate court has confirmed the findings of possession of the plaintiff-appellant in his judgment also and the lower appellate court has further erred in making out a third case of licence and licensee. I find that there is substance in this argument advanced by the learned counsel for the appellant. A person can very well maintain the suit for injunction on the basis of possession. In its judgment, the lower appellate court has observed as under :
"So far as the finding of possession is concerned that does not appear to have been wrongly arrived at. It was admitted by the witness of the defendants named Budhoo that after destruction of the building in fire, a thatched covering was put up by the plaintiff over the site of the disputed house and he was in occupation of the same, the extracts of the Kutumb-register were rightly discarded by the learned lower court. There was nothing to show that the plaintiff had been ejected in due course of law or had vacated of his own accord at any particular time. The presumption of continuance of possession could very well be raised and the finding has been correctly arrived at."
5. The. learned lower appellate court has thus erred in setting aside the judgment and decree of the learned trial court, although the lower appellate court has also found the possession of the plaintiff-appellant. The learned lower appellate court has further erred in making a third case of licence. In Dilbagrai Punjabi v. Sharad Chandra. 1988 Supp SCC 710 : AIR 1988 SC 1858, while dealing with a Second Appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981, L.M. Sharma, J. (as he then was) observed that :
"The Court (the 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.
In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiffs title and the description of the plaintiff as 'owner' of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court Interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld in Jagdish Singh v. Nathu Singh, (1992) 1 SCC 647 : (1992) AIR SCW 1747 : AIR 1992 SC 16O4, with reference to a second appeal of 1978 disposed of on 5.4.1991, Venkatachaliah, J. (as he then was) held :
"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 Vediyar 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, an 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 not based on earlier notices, was vitiated and the High Court could interfere with such a finding. The second situation in which interference with findings 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 : 1993 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 Ishwar Das Jain v. Sohan Lal, 2000 (1) AWC 2.1 (SC) (NOC) B : AIR 2000 SC 426.
"As to the jurisdiction of the High Court to reappreciate evidence in a second appeal, it is to be observed that 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 as has been held by the Hon'ble Supreme Court in the ruling in Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647. The same view has been taken by Hon'ble Supreme Court in another ruling also in AIR 1987 SC 1484 that the erroneous findings of fact recorded by the Court below can be set aside by High Court in second appeal. The question of law formulated above is being answered accordingly in favour of the appellant."
Thus, it is clear that the finding recorded by the lower appellate court is perverse and is liable to be set aside as per the aforesaid rulings of Hon'ble Supreme Court, etc.
6. The appeal is hereby allowed. The judgment and decree of the lower appellate court is set aside, while the judgment and decree passed by the learned Munsif is being maintained. No order as to costs.