JUDGMENT
1. This appeal is directed against the decree dated 21st September, 1978, passed by District Judge, Sultanpur, in Civil Appeal No. 248 of 1978, arising out of Suit No. 65 of 1974.
2. Ramraj and others, respondents brought a suit against Vishwa Nath and another appellants for perpetual injunction to restrain them from interfering with the former's possession over the land in suit. The respondents also claimed relief for demolition of construction raised by the appellants over the land in suit and for possession- It was alleged by the respondents that they are owners -- in possession of the land in suit and the appellants have no concern with the same. The suit was resisted by the appellants on the ground that the land in suit is in possession of the appellants since the time of their ancestors and the disputed constructions were made by the appellants in place of their 'Marha' which existed on the site.
3. The learned Additional Munsif who tried the suit held that the respondents are not owners of the land in suit and are not entitled to cause the disputed constructions to be demolished or to recover possession of the land in suit. It was further held that the suit is barred by time. Consequently it was decided that the respondents are not entitled to any relief and the suit was dismissed with costs on 25th February, 1978. The learned District Judge reversed the findings of the trial court in appeal. He held that the respondents have acquired title to the land in suit and are entitled to the relief of injunction. He found that the trial court erred in dismissing the suit, with the result that the appeal was allowed and the decree passed by the trial court was set aside on 2Ist September, 1978. The suit for mandatory injunction was decreed and the appellants were directed to remove the constructions existing on the land in suit shown by letters 'A, B, C, D' in Amin's map (paper No. 18-C/2) within a month. The suit was further decreed for permanent injunction and the appellants were restrained from interfering with the possession of the respondents over the said land. The costs incurred by the respondents in both the courts were also ordered to be paid to them by the appellants.
4. The learned counsel for the appellants has urged that the lower appellate court was not justified in reversing the findings of the trial court and in decreeing the suit of the respondents. The contention of the appellants is that the respondents have failed to establish their title to and possession over the land in suit and the finding to the contrary recorded by the lower appellate court is illegal and vitiated by error of law. On the other hand the learned counsel for the respondents has tried to support the judgment and decree of the lower appellate court.
5. The main issue arising for determination in the suit is whether the respondents are owners of the land in suit and have been in possession as such. The trial court held that since the appellants are shown to be in possession of the land in suit and to have raised constructions thereon, the burden of proof lies on the respondents. It further held that the respondents claim to be owners of the land in suit on the basis of a gift deed dated 31st August, 1934, executed by Ramhit in favour of the ancestors of the respondents. By means of this gift deed, Ramhit had conveyed a house situate in 'Abadi' plot No. 250 to the ancestors of the respondents. The description of the property contained in the gift deed indicated that it was bounded by 'Garhi' in east, by house of Samujh Kurmi in west, by house of Budhai Tewari in north and by house of Pagar Kurmi in south. The Amin's map, paper No. 18-C/2 shows that the land in suit is situate on the northern side of the 'Garhi'. The trial court concluded that the land in suit is not included in the property which is covered by the gift deed and hence the respondents cannot claim title to the land in suit on the basis of the same.
6. The trial court further observed that the respondents claim to be owners in possession of the land in suit on the ground that it is 'Sahan' land appurtenant to their house and it will be deemed to have been settled with them under S. 9, U.P. Zamindari Abolition and Land Reforms Act, 1950. It was found that the house of the respondents faces towards south and their 'Sahan' land is also on the southern side of their house. The respondents have also a 'Saria' (Cattle shed) on the eastern side of their house and there is some vacant land, in east of the 'Sana', hut all of it is situate on the western side of the 'Garhi'. There is no door towards east in the house of 'Saria' of the respondents. On the other hand the land in suit is situate on the northern side of the 'Garhi' and adjoining to the said land, towards west, are the 'Dalan' house and 'Khandhar' of the appellants. Further the house of the appellants opens towards the land in suit and there is no vacant land on the western and southern side of their house. In view of the situation of the land in suit and the circumstances of the case, the trial court found that the land in suit is not appurtenant to the house of the respondents. The oral evidence produced by the parties was also discussed and the trial court took the view that the evidence of DW2 Devta Din, aged 65 years, is more reliable as compared to the evidence of PW2 Ram Narain, who is only 25 years of age. The plea of the respondents to have acquired possessory title to the land in suit on the basis of its being appurtenant to their house was also rejected.
7. The lower appellate court examined the gift deed dated 31st August, 1934 and found that the present house of the respondents was conveyed to them in the year 1934 by Ramhit. However, it further found that plot No. 250 was along with trees and bamboo clumps also transferred. The recitals in the gift deed have been misconstrued in-
asmuch as the description of the property shows only this much that it was situated in 'Abadi' plot No. 250. Moreover the transfer of trees will not by itself justify the inference that the land was also transferred. There may be a presumption that when land is transferred, all things attached to the earth, such as trees and shrubs, are also transferred along with the land in view of the provisions of Sections read with S. 3 of the Transfer of Property Act, 1882. But there can be no presumption in a case vice versa. Thus, the inference drawn by the lower appellate court with regard to the title of the respondents to the land in suit was based on a misreading of evidence and misconstruction of the gift deed.
8. The lower appellate court also proceeded to consider whether the land in suit is apputenant to the house of the respondents and has been in their possession. It observed that D W 1 Vishwa Nath could not tell how he got the disputed land. The burden of proof was wrongly placed in the appellants was clearly found by the lower appellate court that the disputed land adjoins the Sahan and Dalan of the appellants. In other words, it was held that the land in suit is not appurtenant to the house of the respondent, still a finding was recorded in favour of the respondents apparently on the basis of conjectures. It was held that the land in suit is not far away from the house of the respondents and 'Garhi' becomes full of water during rains and then the respondents could have no other Sahan land for use except the disputed one which is just lying towards the north of a 'Garhi' by a 'Rasta'. The oral evidence produced by the parties consisting of the statements of the parties PW 1 Ram Ajore and DW 1 Vishwa Nath and the remaining two witnesses, PW 2 Ram Narain and DW 2 Devta Din, were also examined. The lower appellate court preferred to accept the evidence of the respondents' witnesses observing that the trial court was not justified to discard the testimony of PW 2 Ram Narain who in spite of being 25 years old could tell regarding possession for the last 11 or 12 years. As a result of all this, the finding of the trial court was reversed and the respondents were held by the lower appellate court to be owners in possession of the land in suit.
9. In Gujarat Steel Tubes Ltd. v. The Mazdoor Sabha, AIR 1980 SC 1896, it was observed that an appellate power interferes not when the order appealed against is not right but only when it is clearly wrong.
10. In Budhwanti v. Gulab Chand Prasad (1987) 2 SCC, 153 : (AIR 1987 SC 1484), it was held that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong test or on the basis of conjectures or assumption then a High Court well within its rights in setting aside in a second appeal a patently erroneous finding in order to renderjustice to the party affected by the erroneous finding.
11. In Madhusudan v. Smt. Narayanibai (1983) 1 SCC, 35: (AIR 1983 SC 114) it was observed that when there is conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail, unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. There is, of course, no doubt that as a matter of law it or the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misceading of the evidence or on conjectures and surmises; the appellate court is entitled to interfere with the findings of fact. After referring to the materials on record and the errors which vitiated the judgment of the High Court, their Lordships came to the conclusion that there was no adequate ground for the High Court to interfere with the finding of the trial court and so the finding of the High Court was set aside and that of the trial court was restored.
12. It has been seen that in the present case the findings recorded by the lower appellate court are based on misreading of evidence, misapplication of law and conjectures and surmises. The decree passed on such findings cannot be sustained. There is no justification in law on the part of the lower appellate court for interfering with the findings recorded by the trial court that respondents have failed to prove that they are owners of the land in suit or have been in, possession thereof. The findings of the trial court are to be restored. Consequently, the. suit could not have been decreed and no relief; could be granted to the respondents.
13. In the result this appeal is allowed and the decree of the lower appellate court is set aside. The decree of trial court is restored and the suit of the respondents is dismissed with costs throughout.
14. Appeal allowed.