The first appellate court has the jurisdiction to re-appreciate evidence and record its own findings of fact by reversing the findings of the trial court if found to be perverse.

JUDGMENT

1. Appellant-defendants have preferred this second appeal under Section 100 of CPC against the judgment and decree dated 13.09.2018 in Civil First Appeal No.14/2016 (CIS No.36/2016) by the Additional District Judge No.1, Bharatpur, allowing appeal set aside the judgment and decree dated 26.03.2016 in civil suit No.02/2015 by Additional Civil Judge No.4 Bharatpur whereby and whereunder the following decree for permanent injunction has been passed in civil suit No.02/2015 instituted by respondent- plaintiff:-

2. Heard learned counsel for the appellant and perused the judgment and material available on record.

3. It appears from the record that a simplicitor civil suit for permanent injunction in relation to the '???" in question. It is not in dispute that between parties and admitted position that '???" in question is a government lane. The decree impugned has been passed to the effect that appellant-defendant should not made any encroachment over the '???" and simultaneously respondentplaintiff has also restrained not to open any way and to flow the water in the gali in question. The impugned decree is an equitable in nature whereunder both parties have been restrained, to maintain government lane intact.

4. Learned counsel for the appellant-defendant argued that plaintiff-respondent has made encroachment over the part of government lane, hence by the impugned decree such construction would restrain and the size of Gali has become narrowed.

5. The defendant has not raised any such contention in his written statement nor filed any counter claim or counter suit against the respondent-plaintiff, hence, such arguments at the stage of second appeal cannot be entertained, which do not arise from pleadings of parties.

6. Having considered the nature of impugned decree, which is innocuous in nature, this Court is not inclined to interfere in this second appeal. More so, no substantial question of law has been arise in this case.

7. In such situation, the fact findings recorded by the first appellate court, do not suffer from any perversity or jurisdictional error rather than the same are well within jurisdiction.

8. Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has held as under :-

'It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so.'

9. The Supreme Court in case of Santosh Hazari Vs. Purushottamn Tiwari [(2001) 3 SCC 179], State Bank of India Vs. Emmsons International Limited [(2011) 12 SCC 174], Jagannath Vs. Arulappa [(2005) 12 SCC 303], Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar [(1999) 3 SCC 722], Arumugham Vs. Sundarambal [JT 1994 (4) SC 464], Umerkhan Vs. Bismillabi [(2011) 9 SCC 684] and Guranm Singh and Ors. Vs. Lehna Singh Reported in [(2019) 7 SCC 641] has observed that the first appellate court is well within its jurisdiction to re-appreciate the evidence as a whole and to record its own findings of fact by reversing the findings of the trial court if the findings of the trial court are found to be perverse.

10. This Court finds that the first appellate court has acted well within its jurisdiction and the reversal of findings are based on due appreciation of evidence and assigning reasons. Such findings do not suffer from any perversity. Learned counsel for appellant also could not point out that the findings of first appellate court suffer from any infirmity/illegality or misreading/non-reading of evidence. In such circumstances, no substantial question of law arises in this second appeal. Subse