Heard learned counsel for the appellants on the point of admission of second appeal and perused the records.
Admittedly, disputed property is situated in Abadi of village Mirzapur. The plaintiffs had filed original suit no. 226 of 2005 with averment that they are owner of this disputed property relating to plot no. 5386 as detailed at the foot of plaint. The plaint case was that since defendants have no right over this disputed property of plot no. 5386, therefore, defendants be restrained from interfering in possession of plaintiffs and also directed to remove their construction and possession of it.
After admitting written statement, framing issues and accepting evidence of the parties, the Additional Civil Judge, (S.D.), Shahjahanpur had decreed the suit of plaintiffs by its judgment dated 25.04.2015, by which relief sought in the plaint was granted in toto. Against the judgement of trial court, civil appeal no. 60 of 2015 was preferred by defendants of original suit. This appeal was heard and dismissed by the judgment dated 24.12.2015 of Additional District Judge, court No. 7 Shahajahanpur. In this judgment, first appellate court had given finding that disputed land does not belong to plot no. 5387 of defendants but it is a land of plaintiffs, so plaintiffs have right to get prohibitory and mandatory injunction for this property. With these findings, first appellate court had confirmed the judgment of trial court.
Against the judgements of trial court as well as first appellate court, this second appeal has been preferred by defendants of the original suit.
Learned counsel for the appellant contended that that disputed property is a part of plot no. 5387 which belong to defendants whereas the plaintiffs' property is a part of plot no. 5386, therefore, judgement of lower courts are erroneous, so appeal should be admitted for being allowed.
In this matter, there has been no dispute that plaintiffs are owner of plot no. 5386 as detailed in plaint and have no concerned with plot no. 5387. The trial court as well as first appellate court has appreciated the evidences of the parties independently and gave separate but concurrent finding of fact that disputed property, for which decree was passed, is a part of plot no. 5386. These findings are based on appreciation of all the available evidences on record and are apparently concurrent and acceptable. Such findings cannot be interfered by re-appreciation of evidence in second appeal.
So far as the statement of learned counsel for the appellant regarding plot no. 5387 is concerned, it is made clear that decree passed by lower courts in this matter is for the property and construction present on plot no. 5386 and not for any other plot or plot no. 5387 of appellant. Since lower courts had appreciated these points and passed decree in favour of plaintiffs, therefore, there appears no error, infirmity or perversity in the impugned judgments.
The dispute between the parties in this matter relates to the fact as to whether plaintiffs are owner of disputed property situated in abadi or not. This is not a question of law, but is a question fact that could be decided on the basis of evidence, as has been done by the lower courts. There appears no error or perversity in the finding of lower courts in that regard.
On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law was involved in the case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained.
In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
Order Date :- 8.4.2016 Sanjeev