HARINATH Vs. VIRENDRA NATH PANDEY

JUDGEMENT

(1.) MRS. Poonam Srivastava, J. Heard learned counsels for the parties.

(2.) THE instant second appeal has been filed against the judgment and order dated 19. 11. 1981 passed by the VIth Additional District and Sessions Judge, Varanasi in Civil Appeal No. 121 of 1981 reversing the judgment and decree of the Trial Court dated 26. 2. 1981 in Original Suit No. 3 of 1978. Civil Suit was instituted by Ram Adhar alias Rama and Hari Nath, minor adopted son of Ram Adhar alias Rama claiming relief for cancellation of sale deed dated 31. 10. 1977 registered on 14. 11. 1977 in favour of Ram Sagar Pandey and others, defendant-respondents. THE plaintiff No. 1 died during the pendency of the suit on 9. 8. 1978 leaving behind only adopted son namely Hari Nath, appellant. Substitution application was allowed 'on 24,7. 1978. Two written statements were filed, one by defendant Nos. 1 to 5 on 21. 3. 1978- and the other by defendant Nos. 6 to 9 on 30. 8. 1978. THE suit was decreed by 13th Munsif, Varanasi vide its judgment and decree dated 26. 2. 1981 which was challenged in civil appeal filed by Virendra Nath Pandey and others. THE first appeal was allowed by the District and Sessions Judge, Varanasi setting aside the judgment and decree passed by the learned Munsif, Varanasi. THE judgment of the lower appellate Court is challenged in the instant second appeal which was admitted on the following substantial question of law: "whether the judgment of the lower appellate Court is vitiated by mis placing the burden of proof entirely on the plaintiff and also reversing the finding of the trial Court which is based entirely on the appraisal of the oral evidence".

(3.) THE next decision relied upon is, Madhusudan Das v. Smt. Narayani Bai and others, AIR 1983 SC 114. Paragraph 8 of the said judgment is quoted below: "in an appeal against a trial Court decree, even when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance or improbability to displace its opinion as to where the credibility lies. "