Unjustified Interference with Concurrent Findings of Fact

ORDER :

Shivaraj V. Patil, J. - The plaintiff is before this Court in this appeal. He filed a suit for permanent injunction in respect of the suit property. The trial court, after a full-dressed trial, decreed the suit. The defendants challenged the judgment and decree of the trial court in the first appeal. The first appellate court did not find any ground to interfere with the judgment and decree of the trial court. Hence, it affirmed the findings recorded by the trial court and in that view, dismissed the appeal. The defendants pursued the matter further and filed second appeal in the High Court. The High Court, by the impugned judgment, reversed the concurrent findings of fact recorded by the courts below.

2. We have heard the learned counsel for the appellant and the learned Senior Counsel for the respondents at length. The learned counsel, in their arguments, reiterated the submissions that were made before the High Court. The High Court upset the concurrent findings of fact recorded by both the courts below, observing thus:

"In the result, though it is a concurrent finding, I set aside the judgment of the courts below. The courts below have not taken into consideration the material evidence before them. Various decisions in the proceedings to which the plaintiff is a party were ignored by the courts below simply on the ground that they are not res judicata. The lower court also granted an injunction without any attempt to identify the property and without proof of possession. Since there is a material illegality committed by the courts below in passing a decree in favour of the plaintiff, in second appeal, this Court is entitled to have the same reconsidered. The legal effect of the evidence adduced was not taken into consideration which also enables this Court to interfere in the second appeal. The concurrent judgments of the courts below are, therefore, set aside and the suit is dismissed with costs in all the three courts."

3. As can be seen from the judgment of the first appellate court, the first appellate court examined each one of the contentions raised on behalf of the respondents herein as to the identity of the suit property and also as to the effect of the documents, including the judgments in the earlier suit. The learned Senior Counsel appearing on behalf of the respondents strongly contended that the report of the Commissioner filed in another suit was brought on record before the first appellate court after remand. He pointed out that before the High Court in the earlier round, it was submitted on behalf of the appellant that they would not lead any additional evidence and the case could be disposed of on the available material on record. That being the position, it was not open to the appellant to produce additional evidence, namely, the report of the Commissioner in the earlier suit. We may point out at once that the first appellate court considered the report of the Commissioner made in the earlier suit in paragraph 10, incidentally dealing with only the northern boundary of the suit property. The first appellate court in earlier paragraphs of the judgment has discussed at length in regard to the identity of the property. Even ignoring the Commissioner's report produced by way of additional evidence, in our view, the result cannot be altered as to the identity of the property. We are not able to find that the first appellate court either ignored any material evidence having bearing on the decision of the case or considered any evidence which was otherwise not admissible. This being the position, the High Court was not at all justified in interfering with the concurrent findings of fact. It is well settled that even if the first appellate court commits an error in recording finding of fact, that itself will not be a ground for the High Court to upset the same. Having perused the judgments of the trial court, the first appellate court and the High Court, we are of the view that the High Court committed an