Point of Law :
1. It is not the principle of law that where the High Court finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal
2. A trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called “concurrent finding of fact

JUDGMENT :

1. Heard Mr. Rajendra Kumar Tripathi, learned counsel for appellant ex-parte as none is responding on behalf of the respondents.

2. The present second appeal has been preferred by the appellant assailing impugned judgment and decree dated 26.3.2010 delivered by learned District Judge, Court No.-2 Gonda in Civil Appeal No. 135 of 2008 (Ram Naresh Vs. Banshraj and another) by which learned first appellate court has set aside the judgment and decree dated 12.9.2008 delivered by trial court of learned Additional Civil Judge (Jr. Div.) III, Gonda in Original Suit No. 253 of 1994 (Ram Naresh Vs. Banshraj and another).

3. The trial court had dismissed the suit of plaintiff/respondent no. 1 and first appellate court has decreed the suit of plaintiff/respondent no. 1 by setting aside impugned judgment and decree dated 12.9.2008 and held 1/3 share of plaintiff and both the defendants. It is directed by first appellate court to prepare preliminary decree accordingly.

4. It is pleaded in grounds of appeal that first appellate court has not appreciated oral and documentary evidence minutely and in correct perspective, as it was done by the trial court. It is also mentioned that disputed property was comprising of ancestral property, land purchased by means of sale deed and new Abadi. It was not appreciated by first appellate court that property purchased by means of sale deed gives rise to only purchaser and none-else.

5. Likewise first appellate court has not correctly appreciated the provisions of Uttar Pradesh Panchayat Raj Act, 1947 regarding jurisdiction of Nyay Panchayat. The findings of the first appellate court is incorrect that Nyay Panchayat was not competent to deliver judgment regarding disputed property. The plaintiff/respondent no. 1 could participate in proceedings conducted by Nyay Panchayat, but he had not opted to participate knowingly. He was bound by the decision given by Nyay Panchayat. The provisions of Section 11 of the C.P.C. applies to the proceedings of present dispute between the parties.

6. It is further pleaded that since disputed property also comprised land of New Abadi, therefore, Gram Sabha was the necessary party.

7. On the basis of aforesaid pleadings, the impugned judgment and decree dated 26.3.2010 has been sought to be set aside.

8. On 26.2.2020 present appeal was heard ex-parte and the following order was passed:-

“Heard learned counsel for the appellant ex-parte, because none is responding on behalf of respondents.

It was directed vide order dated 05.12.2019 as follows:

"List revised. Learned counsel for appellant is present. None is responding on behalf of respondents today.

On 14.11.2019 this Court has passed the following order:

"List revised. Case called out twice.

None is responding on behalf of the respondents.

Learned counsel for appellant is present. In this case record of first appellate court and trial court has been received.

In the interest of justice, the case is adjourned.

List on 05.12.2019.

Learned counsel for respondents has to appear and argue the case on the next date of listing, otherwise this case shall be decided in accordance with law."

Learned counsel for respondents has to appear and argue the present second appeal on the next date of listing, otherwise, it shall be heard exparte.

List on 08.01.2020."

After 05.12.2019, on next date of listing i.e. 08.01.2020, 14.01.2020, 17.01.2020, 24.01.2020 and 11.02.2020, learned counsel for respondents did not appear for arguments, therefore, today ex-parte arguments of learned counsel for the appellant heard and concluded.

Judgment reserved.”

9. Learned counsel for respondents has not appeared during proceedings of present appeal after 19.12.2017. On 19.12.2017 Mr. Dinesh Kumar Shukla, Advocate informed his illness on behalf of the respondents.

10. Notices issued against respondent nos. 1/1/1 and 1/1/2 were served sufficiently. In absence of respondents, the following substantial questions of law were formulated on 3.1.2018:-

1-Whether judgment give