- (1.) SHIV Charan, J. Heard Sri Abhishek Kumar learned Counsel for the appellants and Sri Satya Priya Upadhya Advocate for the respondents on the point of admission of Second Appeal for hearing and also perused the judgment of the Court below and other documents, pleadings etc. filed on record.
(2.) FROM the perusal of the record it is evident that O. S. No. 311 of 1981 was instituted by the respondent Janardan Singh and others for permanent prohibitory injunction and also for mandatory injunction for demolition of construction raised on the property in dispute. It was alleged in the plaint that plaintiffs are the owners of plot No. 1174/3 measuring 48 decimal situate at Kasba Maniyar Pargana Khareed District Ballia and the plaintiffs are in possession for the last more than 12 years. Defendants have got no connection and concern with the property in dispute but defendants illegally encroached upon the land in the month of March 1981 as shown in the plaint map. At that time, the plaintiff was out at Lucknow in connection of service and taking the benefit of the absence, the defendants ap pellants encroached upon the land. The defendant appellants contested the suit and filed written statement and it has been alleged that the property in dispute is not part of plot No. 1174/3 measuring 48 decimal. That the defendants are in possession of this property for the last more than 12 years and the property is being used for domestic and agricultural purpose. An alternate plea was also taken of perfecting title by adverse possession. The evidence was produced by both the parties before the trial Court. A survey report was also obtained and the report was confirmed subject to the evidence of the parties. The trial Court vide judgment and order dated 16. 12. 92 dismissed the suit of the plaintiff respon dents. After being aggrieved by the judgment of the trial Court the respondents plaintiff instituted Civil Appeal No. 77 of 1993, Janardan Singh and others v. Shiv Prasad and others in the Court of District Judge, Bailia and this appeal was allowed vide judgment and decree dated 27. 10. 2002 passed by Addl. District Judge, Bailia. The judgment and decree of the trial Court was set aside and plaintiff's suit was decreed. After being aggrieved by the judgment and order of the appellate Court this second appeal was instituted. It has been argued by learned Counsel for the appellants that the plaintiff is required to prove his own case independently and no benefit can be given to the plaintiff respondent due to the latches of the defendant. That it has not been proved by the plaintiff that the property in dispute is part of plot No. 1174/3 and the plaintiff was required to prove that the property in dispute is part and parcel of the plot No. 1174/3 and appellant was not required to disclose that this property is not the part of the plot No. 1174/3 but rather it is part of some another specific plot. And if it is established that the property in dispute is part of plot No. 1174/3 then the plaintiff's case can be decreed. Although alternative plea has also been taken in the written statement for perfecting title by adverse possession. That the appellate Court properly considered the entire material on record and also the survey report and recorded the definite finding that the property in dispute is the part of plot No. 1174/3. The appellate Court held that there is no specific denial of the appellant in written statement regarding ownership of the plaintiff of the prop erty in dispute. That there is evasive denial. That it has also been stated that in the alternative defendants have also perfected title by adverse possession Learned Counsel for the appellant also stated that substantial question of law are involved as formulated in the memo of appeal and substantial questions of law which has been formulated are that: (i) Whether the plaintiff respondents has discharged the burden of prove the case? (ii) Whether the finding of illegal possession of the appellant without con sidering the evidence and ignoring the documentary evidence is perverse? (iii) Whether it has not been established by the plaintiff that the property in dispute is part of plot No. 1174/3? (iv) Whether the property in dispute was also not identified with the help of record? (v) Whether the suit of the plaintiff cannot be decreed with the help of the weakness of the defendants? Learned Counsel for the respondents disputed the argument of learned Counsel for the appellants and further argued that there was a survey report on record and the appellate Court placed reliance on survey report and from the survey report it is established fact that the property in dispute is part of the plot No. 1174/3. It has further been argued that there was no necessity for location of the property because appellant has not stated that the property in dispute is not the part of 1174/3 but it is part of some other plot and necessity for location was actually in that circumstance that if the defendant definitely stated that the prop erty in dispute is not part of the plot as alleged by the appellant that no definite and specific denial was made regarding ownership of the plaintiff.
(3.) I have considered the facts of the case. It will be material to mention that appellate Court recorded a finding on the basis of the oral evidence after perusing the survey report and another evidence. The substantial question of law formulated by the appellant's Counsel cannot be said to be substantial question of law all these points of law formulated depends upon the consideration of oral evi dence and all these points are the question of fact and in view of Section 100 of CPC and several pronouncement of Hon'ble Apex Court that in the second appeal High Court cannot interfered' with unless there must be some substantial ques tion of law. Therefore, the High Court can interfere and admit the appeal if sub stantial question of law is involved for hearing the second appeal. And in the present case in my opinion there is no substantial question of law involved. Ave considered the judgment pronounced by the appellate Court. The appellate Court is fully competent to record the independent finding The appel late Court is not expected to act as critic in order to criticize each and every sentence of the judgment of trial Court and appellate Court in the present case considered the entire material and recorded its finding and in my opinion the appellate Court is perfectly justified in recording the findings.;