ORDER :

1. Heard Shri Prashant Jaiswal, learned counsel for the appellant and Shri Nazam Zafar, learned counsel appearing for the respondent.

2. The instant second appeal has been preferred by the defendant-appellant against the judgment and decree dated 04.04.1983 passed by the 4th Additional District Judge, Gonda in Civil Appeal No. 292 of 1980, whereby the suit filed by the plaintiff-respondent dismissed by the trial court was set aside and the appeal was allowed decreeing the suit in part. The instant second appeal was admitted on the following two substantial questions of law:

“(i) As to whether while exercising powers under Order 47 Rule 1 of the Code of Civil Procedure, it was open to the court below to set aside the findings of fact recorded by the said court in earlier judgment. Regarding these findings no grievance was made in the review petition and also no prayer was made for the review of the said findings in the review petition?

(ii) As to whether the First Appellate Court could have reversed the finding of the trial court without considering the evidence, meeting the reasons of the trial court and was it sound a exercise of jurisdiction in terms of Section 96 read with Section 41 Rule 31 CPC?”

3. In order to answer the aforesaid questions, certain brief facts giving rise to the instant appeal are being noticed first.

4. Smt. Hasmunnisa, the original plaintiff who is now represented by her legal heirs instituted a suit for declaration in the Court of Munsif, Gonda registered as Case No. 319 of 1979 against Smt. Firojannissa, the original defendant now represented by her legal heirs.

5. The pleading as framed by the plaintiff was that the property in question belonged to one Raj Mohammad. Upon his death Qamar Mohammad, Shah Mohammad and Deen Mohammad became the Sirdar. The defendant Smt. Firojannissa was the wife of Raj Mohammad and her name was also recorded. However, it was pleaded that after the death of Raj Mohammad the defendant Smt. Firojannissa re-married with one Mohammad Shafi on 01.01.1973 and started residing in Atraula and thus she lost her right in the property upon remarriage.

6. The said suit came to be contested by Smt. Firojannissa by filing her written statement wherein she categorically denied that after the death of Raj Mohammad, she ever married with Mohammad Shafi. She had also raised other plea that since the plaintiff was not in possession, the suit for injunction was not maintainable also that the suit was bad for non-joinder of parties.

7. Upon the exchange of pleadings, the trial court framed six issues. Issue no. 1 related to the fact as to whether the property was undervalued. Issue no. 2 was whether the defendant had re-married Mohammad Shafi and was residing together as husband and wife and if so, it effect. The third issue was whether the defendant being the mother of the son of Raj Mohammad was entitled to inherit the property and if so, its effect. Issue nos. 4 and 5 related to the fact whether the suit under Section 34 of the SPECIFIC RELIEF ACT was maintainable and the trial court had the jurisdiction to try the same. Issue no. 6 was formal in nature as to what relief the plaintiff was entitled.

8. The trial court after noticing both the oral as well as documentary evidence primarily dealing with the issue no. 2 which was the crux of the controversy held that the defendant had not remarried Mohammad Shafi. Consequently, the issue of inheritance was also decided against the plaintiff and by means of judgment and decree dated 11.11.1980, the suit of the plaintiff was dismissed.

9. The plaintiff preferred regular a civil appeal under Section 96 CPC. The appeal also came to be dismissed by means of judgment and decree dated 02.03.1982. Against the said dismissal of the first appeal, the plaintiff preferred review petition which was registered as Miscellaneous Case No. 8 of 1982. It will also be relevant to notice that simultaneously the plaintiff also preferred a second appeal being aggr