JUDGMENT Pramod Kumar Srivastava, J – Heard counsel for appellants on point of admission of second appeal and perused the record. 2. Original Suit No. 470/2001, Sughar Singh v. Badan Singh was instituted for restraining the defendants from raising any obstruction over disputed pathway and for removing the obstruction raised by them on this public way. After affording opportunity of hearing to parties, Additional Civil Judge (Junior Division), Court No. 22, Etah had decreed the suit for relief claimed. Against said judgement Civil Appeal No. 47/2011, Badan Singh and others v. Sughar Singh was preferred which heard and dismissed by the judgement dated 10.12.2015 of District Judge, Etah. Aggrieved by the judgements of trial court as well as first appellate court, present second appeal has been preferred by the defendant of original suit. 3. Learned counsel for the appellants contended that one earlier suit no. 1215/92 Sughar Singh v. Badan Singh was filed by the plaintiff/respondent which was dismissed in default on 15.5.1997 and said suit was never restored. He pleaded that since earlier suit was for the same property and same relief between the same parties, therefore, later instituted OS No. 470/01 is barred by principles of res judicata. He further pleaded that earlier suit was dismissed under Order 9, Rule 8 CPC, therefore, later instituted suit is not maintainable under Order 9, Rule 9 CPC. He also contended that this finding of lower court is erroneous the admission of defendants/appellants in written statement of earlier instituted suit cannot be read against him. He also pleaded that lower courts had ignored commissioner's report and other evidences and passed erroneous judgements which are perverse, therefore, appeal should be admitted for being allowed. 4. This contention of learned counsel for appellants is not acceptable since earlier instituted suit no. 1215/1992 was dismissed in default, therefore, letter instituted suit no. 470/01 should be treated as barred by principles of res judicata, because earlier instituted suit was not decided on merits. The Court had not " heard and finally decided" the OS No. 1215/92, therefore provisions of Section 11 CPC does not bar institution of another suit on same grounds. 5. Learned counsel for the appellants cited judgement reported as Udai Raj Singh & Ors. v. Hari Ram & Ors., 2008 AIR SCW 5484 and contended that dismissal of default of earlier suit should be treated as res judicata for letter instituted suit. 5. Learned counsel for the appellants cited judgement reported as Udai Raj Singh & Ors. v. Hari Ram & Ors., 2008 AIR SCW 5484 and contended that dismissal of default of earlier suit should be treated as res judicata for letter instituted suit. This ruling does not help the submission of appellants side because although head note of this citation supports appellants contention but the detail judgement does not deals this matter. It is no where mentioned in this judgement that dismissal of case in default will bar subsequent suit. 6. So far oral arguments of plea of original suit being time barred is concerned, this contention is not acceptable in this matter. In memo of first appeal defendant/appellant had not raised this issue, therefore, it was not considered by first appellate court. In absence of such plea in memo of first appeal, this point could not be considered and decided by lower appellate court. So such plea cannot be taken directly in second appeal. Apart from it the original suit related to cause of action of public path way, earlier suit in that regard was not decided on merit. 7. Such suit cannot instituted any time when cause of action arises for it. It was found that later instituted suit no. 470/01 instituted again when cause of action of said path way arose to plaintiff/respondent. This matter was considered and thereafter judgement on merit was passed by lower court. Apparently, there appears no error or illegality in such judgement. 8. The dispute between the parties relates only to fact as to whether disputed land is a public path-way over which plaintiff/respondents had right on coming and going or not. This is not a question of law but is a question of fact that can be decided on the basis of evidences adduced by the parties, as has been done by the lower courts. In the present matter both the lower courts have considered evidences adduced by the parties and gave independently the findings which are apparently correct and acceptable. It is admitted fact that in earlier instituted suit no. 1215/92, the defendant Badan Singh (present appellant) had admitted the existence of pathway over same disputed property which is also disputed in the present litigation. It is admitted fact that in earlier instituted suit no. 1215/92, the defendant Badan Singh (present appellant) had admitted the existence of pathway over same disputed property which is also disputed in the present litigation. It had been his admission in earlier suit which was also considered as evidence in later instituted suit by trial court as well as the lower appellate court. This contention of learned counsel for appellant is not acceptable that his earlier admission in another suit should not be considered as evidence against him. He is estopped to raise such pleas. 9. 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. The Second appellate court would not re-appreciate the evidence to disturb the concurrent findings of fact recorded by both the courts below. No question of law, much less a substantial question of law, was involved in this case before this 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. 10. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed. Appeal dismissed.