JUDGEMENT
JASPREET SINGH, J. -
(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 dtd. 4/4/1983 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 Sec. 96 read with Sec. 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.
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