1976 Supreme(MP) 175

IN THE HIGH COURT OF MADHYA PRADESH
G.P. Singh, R.K. Tankha, JJ.
Bairagilal - Appellant
Vs.
Narottam & others - Respondents
S.A. No. 18 of 1970 (J)
Decided On : 31-12-1976

Headnote:Civil Procedure Code, 1908 - S.100 - findings of fact arrived at by the first appellate Court - proceeded upon a misreading of evidence and not taking into account important circumstances - interference made.

       Short Note

       It was a second appeal by the plaintiff in a suit for damages which was decreed by the trial Court, but was dismissed in appeal.

       2. Held : The first appellate Court dismissed the suit on the reasoning that the plaintiff was not entitled to claim damages for demolishing the embankment or for digging drain or for cutting the trees because he failed to establish that the embankment was on his Khasra number. It was further held that the plaintiff admitted that a thorn fencing was erected by him to the west of the embankment which was part of Khasra Nos. 302 and 307 and that the defendants did not act illegally in demolishing the thorn fencing. It will be seen that the first appellate Court did not differ from the trial Court on the question that the defendants did demolish the embankment and the thorn fencing and that they cut the trees and removed the same as alleged by the plaintiff. The quantum of damages assessed by the trial Court was also not varied by the first appellate Court. The main ground on which the suit was dismissed was that the plaintiff failed to prove that the embankment was on his Khasra number. In the opinion of this Court, the finding reached by first appellate Court cannot be accepted because, it proceeds upon a misreading of evidence and does not take into account important circumstances. After discussing the evidence, the Court allowed the appeal partly. Appeal partly allowed.