JUDGMENT Kamal Kishore, J.
1. This is the second civil appeal against the judgment and decree dated 2.2.1987, passed by Sri Ajijurrahman, the then learned IInd Additional District Judge, Gonda, allowing the appeal and upsetting the findings recorded by Sri Udai Chandra Dixit the then learned Civil Judge, Gonda in Regular Suit No. 46 of 1980, which was a suit for specific performance of contract as well as the suit for cancellation of sale deed executed in favour of the defendants-respondents No. 2 and 3.
2. The following substantial question has been formulated in this appeal :
"Whether in respect of land regarding which the agreement to sell had taken place was a bit increased of deceased in consolidation proceeding amounts to change in property and hence the said agreement can be enforced by suit for specific performance of contract?"
3. The facts giving rise to this second appeal are that the plaintiffs-appellants have filed the suit for specific performance of registered contract to sell dated 8.3.1978, which was registered before the Sub-Registrar on 15.3.1978 paying Rs. 2,500 as the advance money for execution of sale deed. The sale deed was agreed to be executed for Rs. 10,000, thus the balance of amount of Rs. 7,500 was to be paid by the time of sale deed. The aforesaid suit was contested by the defendant No. 1 on the allegations that the permission to sell the land in suit was obtained by the executant, defendant No. 1 from the Settlement Officer Consolidation during the year 1980 itself. Thereafter, he requested the plaintiffs to purchase the land in suit. However, the plaintiffs have not agreed to get the sale deed executed. Thereafter, the defendant No. 1 Jogendra Singh executed the sale deed of the land in suit in favour of the defendants No. 2 and 3.
4. I have heard arguments and have gone through the record.
5. Admittedly, the defendant-respondent No. 1 had executed the impugned agreement to sell the land in suit for Rs. 10,000 and had received Rs. 2,500 at the time of the execution of the aforesaid agreement to sell of the land in suit. It has also been admitted that the defendant No. 1 had obtained Rs. 1,000 twice, i.e., Rs. 2.000 also after execution of the agreement to sell on the condition that the same shall be adjusted at the time of execution of sale deed. It has not been disputed that the permission from the Settlement, Officer, Consolidation was obtained on 23.4.1980, regarding the same land for which the impugned agreement to sell was executed. The learned trial court held that it is wrong that the plaintiffs had waived their rights. The plaintiffs had always been willing and ready to perform their part of contract. The learned trial court has further found that Rs. 2,500 as well as Rs. 2,000 has been paid by the plaintiffs to the defendant No. 1 towards the sale consideration. Accordingly, the learned trial court has decreed the suit for specific performance of contract of sale and for cancellation of sale deed executed in favour of defendants-respondents No. 2 and 3.
6. As against this the learned lower appellate court has allowed the appeal and has set aside the findings recorded by the learned trial court. The learned lower appellate court has placed reliance of exhibit 1 which is the postal certificate allegedly for sending notice to the plaintiffs for getting the sale deed executed. The copy of the notice allegedly sent to the plaintiffs by the defendant No. 1 has not been filed or proved by the defendant-respondent No. 1. Had any notice been really sent, the same should have been sent by the registered post and the copy of the notice should also have been got proved by the defendant-respondent No. 1. Thus, the adverse inference shall be drawn against the defendant-respondent No. 1 in this regard.
7. The next ground on which the reliance has been placed by the defendant-respondent No. 1 and the learned lower appellate court has set aside the findings recorded by the learned trial court, is that the agreement to sell was regarding the land measuring 1 acre 99 decimal only, while after the consolidation operation, the area of the land was increased to 2 acres 02 decimals. The learned lower appellate court has therefore held that the impugned agreement to sell has thus been frustrated. This finding recorded by the learned lower appellate court is also not tenable in view of the ruling of Hon'ble Supreme Court in Smt. Baikunthi Devi and Ors. v. Mahendra Nath and Anr., AIR 1977 SC 1514, that in contract of sale of agricultural land by owner pending during the consolidation proceedings in which the suit for specific performance was filed after consolidation proceedings were closed. It has been held by the Hon'ble Supreme Court that since substantially the same land with a minor variance of 0-06 acres only was allotted to the owner in the new chafe, the same will be no bar to a decree being granted. In view of the aforesaid ruling of Hon'ble Apex Court, I find that the arguments advanced on behalf of respondents to the contrary is not tenable and the lower appellate court has failed in overlooking the aforesaid specific judgment of Hon'ble Supreme Court although the lower appellate court has referred this ruling in his judgment.
8. 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 authorized to set aside the finding. This is the situation in the present case.
9. The High Court interfered with the finding on 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 : 1992 AIR SCW 1747 : AIR 1992 SC 1606, 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 finding". Again in Sundra Naicka Vadiyar 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 Venkatswami, 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 (2) SCC 143 : 1991 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 the rulings in Ishwar Das Jain v. Sohan Lal, 2000 (1) AWC 2.1 (SC) (NOC) : AIR 2000 SC 426 and Dilbagh Rai Punjabi v. Sharad Chandra, 1988 Supp SCC 710.
10. 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 the Hon'ble Supreme Court in another ruling also as 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.
11. The second civil 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 trial court is hereby maintained. No order as to costs.