SHIV PRASAD Vs. JANARDAN SINGH

JUDGEMENT

(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.

(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.