Judgment:
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 Ors. 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. 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 cannot 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.
4. Reliance has been placed on a number of decisions of this Court as well as the Apex Court, Mahendra Singh v. Niranjan Singh 1995 (26) ALR 581 ; Jasmel Singh v. Rqjendra Prasad Saxena and Ors. 1998 (33) ALR 84 : 1998 (1) AWC 319 and Madhusudan Das v. Smt. Narayani Bai and Ors. : [1983]1SCR851 . The only emphasis of the learned Counsel for the appellant on the basis of the aforesaid decisions is that in an appeal against the trial court decree, the appellate court must bear in mind that it does not enjoy the advantage which the trial court had in having the witness before it. When there is a conflict of oral evidence on any matter in issue, unless and until the appellate court finds special feature about particular witness has escaped the notice of the trial court, the evidence should not be set aside.
5. 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.
6. The Apex Court in the case of Rajeshwari v. Puran Indoria (2005) 7 SCC 60 : 2005 (4) AWC 3869C. has elucidated and explained the term 'Substantial question of law' it was held that the proper test for determination whether question of law raised in a case is substantial and would affect rights of the parties, if so whether it is either an open question in the sense it was not finally settled by Hon'ble Supreme Court or Privy Council or federal court, or is not free from difficulty or calls for discussion or alternative views. Similar view was expressed by the Apex Court in the case of Govindaraju v. Mariamman : AIR2005SC1008 , as well as Santosh Hazari v. Purushottam Tiwari : [2001]251ITR84(SC) . The question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have material bearing as to the rights of the parties before the court. The foundation is to be laid in the pleadings and the questions are emerged from sustaining findings of fact arrived at by the Court after the appraisal of evidence.
7. In view of the above decisions, I am not inclined to interfere as no substantial question of law arises worth consideration in the instant appeal. The second appeal lacks merit and is accordingly dismissed. There shall be no order as to cost.