JUDGMENT Kamal Kishore, J.
1. This is the second appeal against the judgment and order dated 28.3.1980 passed by the Civil Judge, Pratapgarh by allowing the first appeal and setting aside the judgment passed by the learned Munsif, Pratapgarh in Regular Suit No. 34 of 1975 which was for demolition and possession, etc.
2. This second appeal has been admitted on substantial question of law No. 4 which runs as follows :
"Whether non-consideration of the material evidence on record including the Commissioner's map and report by the lower appellate court and the findings recorded as such stand vitiated?"
3. I have heard arguments of the learned counsel for parties and have gone through the record.
4. It has been argued by the learned counsel for defendants-appellants that the learned first appellate court has erred in not considering the material evidence on record Including the Commissioner's map and report, and hence, the findings recorded by the learned first appellate court stands vitiated. It has, therefore, been urged that the learned lower appellate court has thus erred in setting aside the judgment passed by the learned Munsif and In decreeing the suit for demolition and possession specially when the map of the Commissioner shows that the disputed constructions do not lie in plot No. 1347. I find that there is substance in this argument advanced by the learned counsel for defendants-appellants.
5. The defendants-appellants alleged that the land in suit lies in plot No. 1323 and not in plot No. 1347. There is a survey map which shows that the land in suit lies in plot No. 1323. The aforesaid survey map was confirmed and is a part of decree of the first appellate court. The learned first appellate court has thus erred in not considering the con -firmed survey map on the record and in allowing the appeal, setting aside the judgment of the learned Munsif.
6. The Court (the first 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 authorised to set aside the finding. This is the situation in the present case.
7. The High Court interfered with the finding of the ground of non-consideration of vital evidence and the Hon'ble Supreme Court affirmed the said decision. That was upheld in Jagdish Singh v. Nathu Singh, 1992 (1) SCC 647 : AIR 1992 SCW 1747 : AIR 1992 SC 1604, 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 Vadiyar v. Ramaswami Ayyar, 1995 Supp (4) SCC 534 : AIR 1993 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. Vishram Kumari, 1988 (2) SCC 295 : (AIR 1988 SCW (3)) : AIR 1988 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 : AIR 1991 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 the ruling in Ishwar Das Jain v. Sohan Lal, 2000 (1) AWC (NOC) 2.1 (SC) : AIR 2000 SC 426."
8. As to the jurisdiction of the High Court to re-appreciate evidence in a second appeal, it is to be observed that where the finding 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, therefore, decided in affirmative and the appeal is liable to be allowed.
9. The second appeal is hereby allowed. The judgment and decree passed by the learned first appellate court is hereby set aside while the judgment and decree passed by the learned trial court is hereby maintained. No order as to costs.