RAM PADARATH Vs. KRISHNA KUMAR

JUDGEMENT

(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. Bholanath and others. THE plaintiff-respondents 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. and 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 chabutra towards west and a stair was situated towards south of chabutra. 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.) I have perused the judgment of the lower appellate court as well as trial court. It goes without saying that the lower appellate court is last court of fact and the findings are to be given on perusal and appraisal of oral evidence as well as other evidence brought on record. On perusal of the judgment passed by the Additional District Judge, Allahabad, it transpires that while setting aside the findings of the trial court, the lower appellate court has taken into consideration the statement of each and every witness and while discarding the finding of the trial court, the learned Judge has given his reasons which cannot be said to be perverse. The lower appellate court has also recorded his conclusion on the Commissioner's report. The appellate court has categorically stated that only because the plaintiffs were residing at Allahabad for some time, it cannot be said that they were not in possession of the disputed property. However, on perusal of the two judgments, I do not find that this Court can enter into the realm of appraisal of evidence since the two courts have already discussed the evidence at length and have arrived at a conclusion, I am of the view that in a second appeal this Court cannot start adjudging the statement of each and every witness and contradictions that was brought forward on cross-examination. Learned counsel could not point out that which of the findings are perverse and calls for an interference in a second appeal. It is also not a case where the judgment is passed on misinterpretation or consideration of inadmissible evidence or ignoring material evidence. Learned counsel has only emphasized that since the trial court had an opportunity to see the demeanour of the witness and therefore, the appellate court was bound to follow the analysis given by the trial court unless and until it was perverse. This contention of the learned counsel might be correct but in the instant case nothing has been pointed in the judgment of the appellate court to substantiate the findings to be perverse each and every statement has been considered and thoroughly thrashed out. I am not in agreement with the submission of the counsel for the appellants and do not find any perversity whatsoever.