Judgment :-

Tarun Chatterjee, J.

1. Delay condoned.

2. Leave granted.

3. Application for substitution is allowed.

4. This is an appeal filed at the instance of the plaintiff-appellant challenging the judgment and decree dated 26th of July, 2006 passed by the High Court of Judicature at Allahabad in Second Appeal No. 956 of 1976, whereby the High Court had dismissed the appeal on the ground that the same was concluded by concurrent findings of fact and, therefore, no substantial question of law was involved in the same.

5. The appellant as plaintiff instituted a suit for permanent injunction restraining the defendants-respondents from interfering with his possession in respect of a building situated in Plot No. 4934 in Village Bhavanipurva Muhal Usufzama in the District of Banda (hereinafter referred to as "suit property") in the Court of Munsif, Banda. He claimed to have purchased the suit property from one Mr. Rajjan by a sale deed dated 27th of December, 1966. When the Zamindar of the suit property objected to the said sale, the plaintiff- appellant by way of an abundant caution, once again purchased the entire building on the suit property from the Zamindar Sekh Anwar- Usufzama and thus became the owner of the entire suit property on 6th of August, 1967. Since the respondents had sought to interfere with the possession of the plaintiff-appellant in respect of the suit property, he was constrained to file the suit for declaration and permanent injunction.

6. The respondents entered appearance and contested the suit by filing a written statement inter alia denying the material allegations made in the plaint. The respondents denied that the suit property was situated on Plot No. 4934 alleged to have been purchased by the plaintiff-appellant. They further pleaded that the suit property was in village Hardwali under the Zamindari of Pt. Sukhdeo Sahay Dubey. The respondents, however, admitted that the plaintiff-appellant was the rightful owner of only one room in the building on the suit property that belonged to Mr. Rajjan, which the plaintiff-appellant had purchased from him. Accordingly, the defendants-respondents sought dismissal of the suit.

7. Issues were framed and parties went into trial after recording evidence in respect of their respective claims. The learned Munsif, Banda, on consideration of the entire evidence on record, oral and documentary, by a Judgment and decree dated 7th of

.April, 1973 decreed the suit of the plaintiff-appellant inter alia holding that the suit property had been identified by a Survey Commission as described by the plaintiff-appellant and that the claim of the plaintiff-appellant was supported by the fact that the possession of the plaintiff- appellant in respect of one room of the building on the suit property was not disputed by the defendants-respondents.

8. Feeling aggrieved by the judgment of the trial Court, two sets of appeals namely, Civil Appeal No. 31 of 1973 and Civil Appeal No. 39 of 1973 were preferred before the Court of the Second Additional District Judge, Banda at the instance of the defendants-respondents.

9. The First Appellate Court, after hearing the learned counsel for the parties and after considering the evidence, oral and documentary, on record and also the judgment and decree of the trial Court, allowed both the appeals and set aside the judgment of the trial Court only on the ground that the Survey Report of the Commissioner was not acceptable and believable and the respondent No. 7 Ram Kishore was in possession of the suit property. While setting aside the Judgment of the trial Court, the Appellate Court also held that the plaintiff-appellant was not the owner of the suit property.

10. Feeling aggrieved by the judgment of reversal, the plaintiff-appellant filed a second appeal before the High Court of Allahabad and the High Court, on consideration of the report of the Commissioner as well as the findings of the trial Court and after considering the findings of the A