SUBBIAH Vs. ESTHER PONNAMMAL

JUDGEMENT

(1.) DEFENDANT is the appellant in this second appeal. The Courts below concurrently held against the defendant. In this appeal, the appellant is referred to as the defendant and the respondent as the plaintiff.

(2.) THE suit in O.S.No.249 of 1985 was filed by the plaintiff for bare injunction restraining the defendant from interfering with her possession and enjoyment of the suit property which was a poramboke land. THE said suit was decreed in favour of plaintiff on 28.1.1987 and the defendant has filed fist appeal which was also dismissed on 23.2.1990, hence the present second appeal is preferred. Pending the second appeal, the defendant has filed C.M.P. No.15733 of 1995 for receiving additional evidence and this Court directed to post the said petition along with the main case.

(3.) THIS Court well aware that in the second appeal it is not correct to reappreciate the documents and oral evidence, but have thoroughly failed to consider the material evidence. The omission to consider material evidence is a valid ground for interference by this Court in the second appeal though concurrent findings are made by the Courts below. THIS Court is also conscious of the dictum laid down by the Hon"ble Supreme Court relating to the power of the High Court under Sec.100, C.P.C.