BHRIGUNATH SINGH Vs. BRAJ BANSHI SINGH

JUDGEMENT

(1.) THIS second appeal has been preferred by the plaintiffs of Title Suit no. 63 of 1974/14 of 1977. The suit was decreed by the trial court and on appeal by the defendants of the suit, the lower court 's decree was reversed and, hence, this second appeal. The plaintiff -appellants challenged the findings of the first appellate court on the grounds, inter alia, that the first appellate court failed to consider the oral evidence of the parties and it formed a wrong opinion regarding Hukumnama claimed by the defendant -respondents and it also wrongly held that the order of the Magistrate passed in a proceeding under Section 145 Cr. P.C. was final because its revision also failed.

(2.) BEFORE I proceed to examine the judgment of the first appellate court in the light of grounds of appeal set up by the plaintiff -appellants, it would be worth while to state, in substance, the case of the parties which will facilitate the decision on the question involved in the second appeal. The concerned title suit was filed in representative capacity under Order 1 rule 8 C.P.C. and the suit land was 3.13 acres of plot no. 219. Admittedly, this plot was recorded in the cadestral survey as Gairmazarua Malik land being jungle. However, the plaintiff -appellants claimed that in spite of the entry as Gairmazarua Malik, the suit land was treated as Gairmazarua Am land and the general public was using this land as pasturage and as a burial ground for dead infants. Part of the land was also used by the general public, especially potters. Major portion of the land contained reservoir for irrigation purposes. There was a temple of Ram -Janki and Lord Shiva used by the general public. The defendants claimed settlement over the disputed land of plot no. 219 which was baseless. On the basis of aforesaid averments, the plaintiff -appellants filed the suit and the defendant -respondents challenged all the claims or the plaintiff -appellants. The trial court decreed the suit in part and then the defendants went in appeal where they succeeded. So it has to be decided in the second appeal whether the first appellate court committed any legal error in reversing the judgment of the trial court and, whether, of course, the judgment of the first appellate court suffers from non -consideration of oral evidence.

(3.) AT Paragraph 35, the court stated that the suit was decreed in part. The aforesaid statements of the trial court in its judgment were interpreted by the piaintiff -appellants ' lawyer that their suit was decreed in its entirety and all the claims were accepted by the court.