Poonam Srivastava, J. - (1.) Heard Radhey Shyam, learned Counsel for the appellants.
(2.) The instant second appeal has been preferred against the judgment and decree dated 16.3.2007 passed by Additional District Judge, Court No. 13, Allahabad in Civil Appeal No. 213 of 2005-Krishna Kumar and others v. Pholanath and others. The plaintiff-respondent instituted Original Suit No. 688 of 2000 for a relief of permanent injunction. The claim of the plaintiffs was that they had their house, Baithaka Goruwar, Well, Trees, Nad, Khunta and Sahan and they tied their cattle over the land in dispute which was already settled under Section 9 of the U.P.Z.A. & L.R. Act. The defendant-appellants filed their written statement and contested the suit claiming their title, it was disputed that the plaintiffs were neither owner nor in possession and the defendants claimed to have constructed three pucca rooms and pucca Chabutara towards West and stair was situated towards South of Chabutara. It was also claimed that pucca boundary wall is in existence. No documentary evidence was produced, only a report of Commissioner was on record. The suit proceeded on the basis of oral evidence alone. The trial Court dismissed the suit on 28.11.2005 which was challenged in appeal. The appeal was allowed which is impugned in the instant second appeal.
(3.) The submission of the learned Counsel for the appellants is that since there is no documentary evidence, the lower appellate Court could not have reversed the findings of the trial Court which had an opportunity to watch the demeanour of the witnesses and once the trial Court after taking into consideration the oral evidence dismissed the suit, it can not be reversed in the manner as has been done by the lower appellate Court. It has also been argued that the trial Court had taken into consideration the Commissioner's report dated 3.11.2003. A number of substantial questions of law has been framed in the memorandum of appeal but the learned Counsel has pressed mainly two questions of law:- First, when there is no conflict of oral evidence on any matter in issue and the decision turns upon the credibility of witness, the general rule is that the appellate Court shall permit the findings of fact rendered by trial Court to prevail, and the second question is that the -lower appellate Court misread the Commissioner's report as well as statement of the witnesses and recorded perverse findings.;