The court emphasized the discretion of the court to consider or ignore survey reports and the proper test for determining substantial question of law.

( 1 ) THE second appeal has been filed against the judgment and decree dated 5. 5. 1992 and 20. 7. 1992 passed by Sri R. R. Jatav, the then District Judge, Jalaun at Orai, in Civil Appeal No. 33 of 1991 arising out of Original Suit No. 87 of 1986 by which he allowed the said appeal.

( 2 ) BRIEF facts of the case is that Original Suit No. 87 of 1986 was filed by Deena Nath plaintiff-appellant for permanent injunction.

( 3 ) THE contention of the appellant was that the disputed land which is a part of plot No. 1 of mohal Zia Jal Patti situated in Mauza Ikhlaspura, within limits of Municipal Board, Orai and plaintiff-appellant is the owner and in possession.

( 4 ) THE suit was decreed and defendant was restrained from interference by the judgment dated 15. 5. 1991.

( 5 ) AGGRIEVED by that judgment, Civil Appeal No. 33 of 1991, Shreedhar Dayal and Anr. v. Deena nath, was filed, which was decided by the then District Judge, Jalaun at Orai, Sri R. R. Jatav by which he allowed the appeal and set aside the judgment dated 15. 5. 1991 passed by the then Civil judge, Orai.

( 6 ) AGGRIEVED by the said judgment, the second appeal has been filed.

( 7 ) HEARD Sri Udai Kant Saxena, learned counsel for the appellant and Smt. Poonam Srivastava assisted by Sri Avnish Misra, learned counsel for the respondents at length.

( 8 ) IT has been argued by the learned counsel for the appellant that the first appellate court did not rely upon the report of survey commission regarding identity of the disputed plots and without issuing fresh survey commission rejected the contention of the appellant, while order for issue of fresh survey commission should have been passed.

( 9 ) IN this connection, attention of the Court has been drawn by the learned counsel for the appellant towards the decision in Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Ori 240, in which it has been held that appellate court must appoint fresh commission before deciding the appeal, if it finds it necessary to reject the report of the trial court commissioner.

( 10 ) IN this connection, attention of the Court has also been drawn by the learned counsel for the appellant towards the decision in Shreepat v. Rajendra Prasad and Ors. , JT 2000 (7) SC 379, in which it has been held that "it was not proper on the part of the courts below to uphold the decree without getting the identity of the land established, by issuing some survey commission. Reliance of the courts below on the oral evidence was also rejected as not sufficient because serious dispute regarding the identity of the land was raised and matter was remanded to the trial court for fresh disposal. "

( 11 ) IT has also been argued by the learned counsel for the appellant that the statement of Bala prasad, who sold the property to the plaintiff appellant given in a celling case in 1963 is not admissible by filing the certified copy and in absence of the record of the celling, it should not be relied upon. Moreover, it does not relate to the disputed land.

( 12 ) IT has also been argued by the learned counsel for the appellant that the disputed land is not agricultural area, it is an abadi land and there is no Notification regarding abolition of zamindari with regard to the abadi land situated within the limit of Municipal Board.

( 13 ) IT has been argued by the learned counsel for the respondents that so far as the rejection of the survey commission regarding identity of the disputed land is concerned, it is a factual matter and even if there is gross error in deciding the factual matter then as it does not raise any substantial question of law, hence in the second appeal interference cannot be made.

( 14 ) IN this connection, attention of the Court has been drawn by the learned counsel for the respondents towards the decision in Pakeerappa Rai v. S. Hengsu, 2001 (3) AWC 2314 (SC) : (2001) 9 SCC 521, in which it has been held that "erroneous finding of fact, even if grave in nature cannot be interfered with in seco