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2000 (5) TMI 1042 - SUPREME COURTWhether the suit of the appellant was rightly decreed by the First Appellate Court or not? Held that:- Having perused the order of the High Court dated 20th April, 1994 and the record of the case we find no infirmity in the view expressed by the High Court. We are unable to accept the contention of the learned counsel for the appellant that the High Court has re- appreciated the evidence as if it was deciding the first appeal. Though the High Court has observed that findings arrived at by the First Appellate Court are not based on proper appreciation of the evidence on record and the same are set aside but for all intents and purposes and in substance the conclusion of the High Court is that the decision of the First Appellate Court is based on no evidence and is perverse. We are in complete agreement with the conclusions of the High Court. The High Court has rightly drawn adverse inference on account of nonexamination of respondent no.4 as a witness by the appellant. On the facts and circumstances of the case that was vital and was rather the heart of the entire matter going to the root of the whole case. There was no explanation for non-examination of respondent no.4. Clearly, the decree of the First Appellate Court is based on no evidence and is perverse. The appellant had admittedly knowledge of the eviction petition filed by respondent no.1 against his brother respondent no.1. On the facts of the case, it was over simplification for the First Appellate Court to observe that what transpired between the appellant and his brother was of no consequence in so far as the appellant is concerned. It is evident that the appellant was set-up by his brother after having lost in the eviction petition upto High Court and the suit was filed in the year 1976 during the pendency of the execution proceedings of the eviction order. We fail to understand what appellant was doing from 1968 upto 1976. The net result of all this has been that despite lapse of nearly 30 years since filing of the eviction petition, respondent no.1 was unable to recover the possession and that is despite the respondent no.1 having succeeded up to High Court in the eviction case nearly a quarter century ago. For the aforesaid reasons we dismiss the appeal with costs.
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