High Court of Judicature at Allahabad
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Ram Manohar & Others v. Motilal S/O Sikhai - SECOND APPEAL No. - 952 of 2007  RD-AH 15632 (17 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon. Dilip Gupta, J.
The defendants have filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Fatehpur by which the Civil Appeal that had been filed by the plaintiff was allowed and the suit was decreed.
The issue that arose in the suit was whether the Kothari was constructed by the defendants on the public road or on the Sehan of the defendant. The Trial Court recorded a finding that the Kothari had been constructed not on the public road but on the Sehan of the defendants. The Lower Appellate Court, however, on a careful perusal of the oral evidence of the witnesses and on the basis of the report of the Commissioner has recorded a finding that the Kothari was built in the middle of the road.
Learned counsel for the appellants submitted that the finding recorded by the Lower Appellate Court is perverse and in support of his contention he has placed reliance upon the decision of the Supreme Court in Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114.
A perusal of the judgment of he Lower Appellate Court clearly shows that it has considered the oral evidence of the witnesses produced on behalf of the plaintiff and the defendants and has also taken into consideration the report of the Advocate Commissioner which clearly mentions that the Kothari had been constructed right in the middle of the road. It has also discussed the findings recorded by the Trial Court and has given cogent reasons for reversing the same.
The contention of the learned counsel for the appellants is that the Lower Appellate Court does not enjoy the advantage which the Trial Court has in observing the manner in which the witness gives the testimony and, therefore, once the Trial Court, on the basis of the oral evidence had recorded a finding that the Kothari was not constructed on the road, the Appellate Court was not justified in reversing the finding. In the present case, the Lower Appellate Court has elaborately dealt with the evidence of the witnesses produced on behalf of the plaintiff and defendants and has then recorded a finding. The findings of the Trial Court have also been considered and adequate reasons have been given for reversing the same. The decision of the Supreme Court in Madhusudan Das (supra) does not help the appellants.
In this view of the matter, no substantial question of law arises for consideration in this Second Appeal, It is, accordingly, dismissed at the admission stage.
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