MANI RAM Vs. SRI RAM

JUDGEMENT

(1.) THIS is a plaintiffs second appeal assailing the judgment and decree dated 21-4-79 passed by the Civil Judge, Rea Bareli in Civil Appeal No. 172 of 1978 allowing the appeal and setting aside the judgment and decree dated 16-9-78 passed by the Munsif, Dalmau, Rae Bareli decreeing the plaintiff's Regular Suit No. 92 of 1977 for grant of permanent injunction.

(2.) THE plaint allegations were that on plot no. 2358/2, area 12 Biswas, situated in village Arkha, Pargana and Tahsil Salon in the district of Rae Bareli, which was recorded as Banjar in the revenue record, the plaintiff planted 4 mango trees, 2 Bel trees, 4 Ber trees, 3 Neem trees, 3 Babul trees and Mahuwa and bamboo clump. It was further stated in the plaint that the said plot was surrounded by the plaintiff's plots and that the usufructs of the trees planted by the plaintiff were being enjoyed by him. THE age of the trees is stated to be about 30 years. THE defendant along with two others threatened to cut away the trees some time in August 1977 and hence the necessity of filing the instant suit for permanent injunction. THE defendant contested and took the plea that the disputed land being Banjar and that he having obtained Patta of the said land on 29-12-75 from the Gaon Sabha whereafter he having been recorded as Sirdar of the said land had a right over the land. As regards the trees, it was pleaded that the trees did not belong to the plaintiff. It was also stated that the plaintiff failed to obtain permission from the Gaon Sabha to plant the disputed trees and that the age of the trees had been exaggerated. Jurisdiction of the civil court to try the suit was also challenged. THE trial court framed issues on the pleadings of the parties and recorded a finding that the trees were planted by the plaintiff and that he enjoyed its usufructs and on this finding the suit was decreed. THE lower appellate court on re-appraisal of evidence held that the plaintiff not having succeeded in proving the factum of the trees having been planted by him as also having failed to establish that he enjoyed the usufructs of the trees was not entitled to a decree for permanent injunction. Aggrieved, the plaintiff has come up in second appeal before this Court.

(3.) LASTLY, the learned counsel contended that in view of the decision of their Lordships of the Supreme Court in the case of M/s. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207 this Court had power to interfere in- a second -appeal even where the concurrent findings of fact are assailed in case injustice has to be remedied. The Supreme Court in paragraph 6 of the said judgment has laid down as a rule of law :