Baba Sarabojot Singh Bedi vs Sada Ram

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree passed by learned Additional District Judge, Una, vide which the appeal filed by the appellant (the plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking possession by ejectment of the defendants from the shop in disputed premises denoted by letters A B C D E F G H, shown in the site plan, being part of the land measuring 0-13-15 hectares, bearing Khasra No. 1382 and 1388, situated in Village Ishpur, Tehsil and District Una, H.P., as entered in Misal Hakiat for the year 1994-95. It was pleaded that this land was earlier owned and possessed by Smt. Jeeto. She constructed many shops on the suit land and leased out the shop in dispute to the defendant at a monthly rent of ₹ 100/-. She gifted the shop to the plaintiff on 30. 11.1995 The defendant attorned to the plaintiff after the execution of the gift deed. The defendant failed to pay the rent to the plaintiff for more than three years. The defendant is in arrears of rent w.e.f. 1.02.1997 to 31.01.2000 and a sum of ₹3,600/- is due from the defendant. The plaintiff issued a notice terminating the tenancy of the defendant and calling upon him to vacate the premises within 15 days from the date of the receipt of the notice. The defendant failed to vacate the premises, hence, the suit was filed for the recovery of the possession and the mesne profit.

The suit was opposed by filing a written statement denying the contents of the plaint. It was asserted that the defendant dealt with Lalji, the real nephew of Smt. Jeeto. There is a dispute about the title of the shop premises between the plaintiff, Kishan Chand and Pritam Singh. A Civil Suit is pending before the learned Sub Judge, Court No.2, Una. Kishan Chand and Pritam Singh also served notice upon the plaintiff and supplied the copy of the stay order passed by Sub Judge, Court No.2, Una in case titled Krishan Chand Vs. Jeeto, vide which plaintiff and Smt. Jeeto were restrained from receiving the rent of the shop in question. The parties used to visit the shop and asked the defendant not to pay the rent until the settlement of a dispute between the parties. The defendant approached Jagdish Lal Saini, Power of Attorney of the plaintiff and asked him to issue the receipt but he refused to do so. Subsequently, Jagdish Lal Saini and Lali Ji Power of Attorney of Kishan Chand and Pritam Singh, visited the shop and advised the defendant not to pay the rent till the decision of the Court. The plaintiff has not disclosed the correct facts to the Court. The defendant is ready to pay the arrears of rent to the owner. Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

Learned Trial Court framed the following issues on 06.01.2001: -

Whether the plaintiff is entitled to the possession of the disputed shop by ejectment of the defendant? OPP.

Whether the plaintiff is entitled to the use and occupation chares, if so, to what extent? OPP

Whether plaintiff is not the owner of the suit premises, if so, who is owner of the suit premises?OPD.

Relief.

The parties were called upon to produce the evidence and the plaintiff examined Jagdish Lal, (PW-1). The defendant examined himself as (DW-1) and Sh.Bishan Chand(DW-1) (sic).

The learned Trial Court held that the plaintiff did not induct the defendant as a tenant. Smt.Jeeto had inducted the defendant as a tenant. The plaintiff failed to prove any deed showing his title. There was a dispute regarding the title and a Civil Suit was pending before the Court. The Court had directed the parties to maintain the status quo and the plaintiff was restrained from collecting the rent. The defendant never attorned in favour of the plaintiff. Hence, the relationship between the parties was not proved. The learned Trial Court answered issues no.1 to 3 negative and dismissed the suit.

Aggrieved by the judgment and decree passed by the learned Trial Court, an appeal was filed before the learned Additional District Judge, Una.The learned Additional District Judge, Una held that indisputably, the shops were rented by the predecessor-in-interest of the plaintiff to the defendant. There was nothing on record to show that the defendant had attorned in favour of the plaintiff. A competent Court had granted a status quo order; hence, the plaintiff was not entitled to seek possession, arrears of rent and mesne profit. Resultantly, the learned Trial Court dismissed the appeal.

Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned Courts below did not appreciate the evidence in its right perspective.

The defendant specifically stated in his written statement that he was ready and willing to pay the rent. He also admitted that he had not paid the rent due to the dispute regarding the ownership. It was duly proved that the shop was owned by Smt. Jeeto, who had donated it to the plaintiff. The tenant had attorned in favour of the plaintiff. The litigation between Kishan Chand and Smt. Jeeto has no bearing on the present litigation. A tenancy can be terminated as per law and was rightly terminated by the plaintiff. Hence, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned Courts below be set aside.

The appeal was admitted on 16.04.2007 on the following substantial question of law:-

Whether both the Courts below misread and misappreciated the evidence, more particularly, statement of PW-1 and also copy of MisalHaquait Bandobast Jadid Sani for the year 1994-95 thereby vitiating the impugned judgments and decree.

Two applications have been filed for leading additional evidence, one for producing the Jamabandis for the years 1994-95 and 2010-2011 and the second to produce the Copy of the judgment and decree passed in Civil suit No. 66 of 1996.

The applications were opposed by the respondent/defendant.

I have heard Mr Ajay Sharma, learned Senior Advocate, assisted by Ms. Kavita Kajal, Advocate, for the appellant and Mr. Peeyush Sharma, Advocate for the respondent.

Mr. Ajay Sharma, learned Senior Advocate, assisted by Ms. Kavita Kajal, Advocate, for the appellant submitted that the learned Trial Courts erred in dismissing the suit of the plaintiff. It was duly proved by the oral and documentary evidence that the plaintiff is the owner of the shop in question. The defendant did not deny the tenancy or the arrears of rent; therefore, the learned Courts below should have decreed the suit. Copy of the judgment and decree passed by the learned Civil Judge (Senior Division), Una, District Una, H.P. shows that the suit filed by Nand Lal etc., was dismissed and now there is no dispute between the parties regarding the title. The documents are necessary to adjudicate the dispute pending between the parties. Hence, he prayed that the present application for leading additional evidence and appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside and the suit of the plaintiff/appellant be decreed.

Mr. Peeyush Verma, Advocate, learned counsel for the respondent/defendant supported the judgments and decrees passed by the learned Courts below and submitted that no interference is required with them. He submitted that the judgment and decree sought to be produced do not pertain to the disputed land or the shop, hence they are not necessary for the adjudication of the dispute pending between the parties. The copies of Jamabandis are public records and could have been produced before the learned Courts below after the exercise of due diligence; therefore, it was prayed that applications for leading additional evidence and the appeal be dismissed.

I have given considerable thought to the rival submissions at the Bar and have gone through the records carefully.

Additional Evidence:

Before adverting to the substantial question of law, it is necessary to dispose of the applications for leading additional evidence.

Order 41 Rule 27 of CPC deals with the additional evidence in appeal. It reads as under:

“27. Production of additional evidence in Appellate Court

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

In the present case, the applicant/plaintiff is seeking to produce on record copies of Jamabandi for the year 2010-11 and Misal Hakiat Bandobast for the year 1994-95. The record of the learned trial Court shows that the plaintiff had filed a copy of Misal Hakiat Bandobast Jadid for the year 1994-95, before the learned Trial Court; however, the same was not exhibited. Therefore, the document was not only available with the plaintiff/applicant but it was also filed before the learned Trial Court. Hence, the condition that the applicant/plaintiff was unable to produce the document despite the exercise of due diligence is not satisfied. It was laid down by the Hon'ble Supreme Court in Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779= 2004 SCC OnLine SC 505 that a party is not entitled to produce additional evidence unless it shows that evidence could not be produced before the learned Trial Court despite the exercise of due diligence. It was held:

“The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.”

Similar is the judgment of the Hon’ble Supreme Court in Jagdish Prasad vs. Shivnath 2019 (6) SCC 82, wherein it was held:

Under Order XLI Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) Where the trial Court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite the exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for the production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.

In Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148, this Court held as under:-

"36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in the appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526, Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965 SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)

The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. (1978) 2 SCC 493)

.......

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."

"47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed."

The necessity to produce the additional evidence arose because the Courts below held that the plaintiff had failed to prove the gift deed in his favour. The purpose of filing the application is to get rid of the findings recorded by the Courts below. This is not permissible. It was laid down by the Hon’ble Supreme Court in N. Kamalam Vs. Ayyaswamy 2001 (7) SCC 503 = 2001 SCC OnLine SC 905 that the additional evidence cannot be led to fill in the lacuna left before the learned trial Court. It was observed:

“19. Incidentally, the provisions of Order 41, Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal - It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In paragraph 9 of the judgment, this Court observed:

". . . . . . . . . . . . . . . . This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand, what it says is that certain documentary evidence on record supports "in a large measure" the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that, we must point out that the power under Cl. (b) of sub -r. (1) of R. 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision".

Further in Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia, AIR 1980 SC 446 this Court also in more or less in an identical situation laid down that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, the question of interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage would not arise. The time lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April 1983 but the application for permission to adduce additional evidence came to be made only in August 1993. Needless to record that the Courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of Order 41, Rule 27 would depict that the rejection of the claim for production of additional evidence after 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the Will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it, to be a stage-managed affair in order somehow to defeat the claim of the respondents and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court cannot be found fault with for rejecting the prayer of the appellant for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs being the appellant herein.”

The suit was filed regarding Khasra Nos. 1382 and 1388 in the year 25.02.2000. The learned trial Court passed the judgment and decree on 4. 06.2003, and the learned Additional District Judge, Una passed the judgment and decree on 30. 05.2006. The applicant/plaintiff is seeking to produce a copy of Jamabandi for the year 2010-11 for a period after the pronouncement of the judgment and decree by the learned Trial Court and the learned First Appellate Court.

It was laid down by the Hon’ble Supreme Court in Hukum Chandra v. Nemi Chand Jain, (2019) 13 SCC 363 = 2018 SCC OnLine SC 2812, that rights and liabilities stand crystallized on the date of institution of the suit and any subsequent event has to be brought on record by amendment. It was observed:-

“15.The rights of the parties stand crystallised on the date of institution of the suit. However, in appropriate cases, the court can take note of all the subsequent events. Observing that the court may permit subsequent events being introduced into the pleadings by way of the amendment as it would be necessary to do so for the performance of determining the rule in controversy for the parties provided certain conditions are being satisfied, in Om Prakash Gupta v. Ranbir B. Goyal, 2002 2 SCC 256, it was held as under:-

"11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has the power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied:

(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor &General Traders, 1975 1 SCC 770, this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is an absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed."

The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. Whenever, there are subsequent events of fact or law, which have a material barring on the rights of the parties to relief or the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognizance of the subsequent changes of fact and law to mould the relief (vide Ramesh Kumar v. Kesho Ram, 1992 Supp2 SCC 623)”

It is not shown that the rights and liabilities have changed after the passing of the judgments and decrese passed by the learned Courts below; therefore, the document sought to be produced on record is not relevant for the adjudication of the dispute pending between the parties and the same cannot be taken on record.

The appellant/plaintiff is seeking to produce a copy of the judgment and decree passed by learned Civil Judge, Senior Division, Una, in Civil Suit No. 66 of 1996 decided on 01.06.2007. A perusal of the opening paragraph of the judgment shows that it pertains to Khasra Nos. 1383, 1385 1386, 1387, 1379,1389, 1363, 1378, 1384 and 1380. The present suit, on the other hand, was filed regarding Khasra Nos. 1382 and 1388.Both these Khasra numbers have not been mentioned in the judgment and decree sought to be produced by way of additional evidence; therefore, the judgment and decree will not be relevant for the adjudication of the dispute pending between the parties.

It was submitted that the learned Trial Court had referred to some dispute between the parties and the judgment and decree are being filed to show that dispute stands terminated. A perusal of the written statement shows that the defendant had referred to case No. 230/1996. He had also filed a copy of the plaint (Ext.DW-1/A) and the order (Ext.DW-1/B). The judgment and decree sought to be produced before this Court by additional evidence was delivered in case No. 66 of 1996 and the same does not pertain to the Civil Suit referred by the defendant in written statement. The relevance of the documents sought to be produced has not been established, therefore, this document cannot be taken on record.

Consequently, both the applications fail and the same are dismissed.

Substantial questions of law:

It was laid down by the Hon’ble Supreme Court of India in Naresh Kumar v. Hemant, 2019 SCC Online SC 1490 that the jurisdiction under Section 100, Civil Procedure Code, is confined to substantial question of law alone. It is not permissible for the Court to upset the pure findings on facts. It was observed:

“12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.

In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673, this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows:

"12.....The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in a second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for the decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions, it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling, and that is a reproach which the judicial process must constantly and scrupulously endeavour to avoid."

Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur and others vs. Kaki and others, (2007) 1 SCC 546, holding as follows:

"71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that justice has to be administered in accordance with the law.

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The Judicial Committee of the Privy Council as early as 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has the power to add to, or enlarge, the grounds specified in Section 100.

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Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case, the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.

In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs."

Similar view was taken by this Court in Shanta Devi v. Kaushalya Devi, 2020 SCC OnLine HP 1828= 2020 (2) Latest HLJ 1304, wherein it was observed:

Hon’ble Apex Court in Civil Appeal Nos.2843/2844/2010 titled Nazir Mohamed Vs. J. Kamala & ors decided on 27.08.2020, held that a second appeal only lies on a substantial question of law. It is not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a second appeal. Section 100 of the Code of Civil Procedure restricts the right of second appeal only to those cases, where a substantial question of law is involved. Relevant paras of the aforesaid judgment read as under:-

"25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If the statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.

Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC."

A question of law must arise from the pleadings. It becomes a substantial question of law, if it is debatable, not previously settled by law of land or any binding precedent, and must have a material bearing on the decision of the case. A pure finding of fact is not open to challenge in a second appeal even if appreciation of evidence is palpably erroneous & finding of fact incorrect.

"29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., where this Court held:-

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion,be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

In Hero Vinoth v. Seshammal, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.

The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out herein below:-

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta, (1928) AIR PC 172 [(1927-28) 55 IA 235 ] the phrase substantial question of law as it was employed inthe last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case, (1962) Supp3 SCR 549: AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, (1951) AIR Madras 969 : (1951) 2 MLJ 222 (FB), (Sir Chunilal case, (1962) Supp3 SCR 549: AIR 1962 SC 1314, SCR p. 557)

"When a question of law is fairly arguable, where there is room for difference ofo pinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law.

On the other hand, if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."

To be "substantial", a question of law must be debatable,not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.

To be a question of law "involved in the case", there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami.

Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari.

In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in a second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam.An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.

The principles relating to Section 100 CPC relevant to this case may be summarised thus:

(i)An inference of fact from the recitals or contents of adocument is a question of fact, but the legal effect of the terms of a document is a question of law. The construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or a wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, or answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that the High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence does not refer only to cases where there is a total dearth of evidence, but also refers to cases, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

Therefore, in view of the binding precedent of the Hon’ble Supreme Court, it is not permissible for the Court to go into the appreciation of evidence, unless the same is found to be perverse.

The learned Courts below concurrently held that the plaintiff had relied upon the gift deed, which was not produced and there was a dispute regarding Khasra No. 1382 and 1388 between Kishan Chand, Pritam Chand on the one hand and Smt. Jeeto, Baba Sarbjot Singh, Ranjeet Singh and Asha Devi on the other hand regarding their khasra numbers. They also found that the competent Court had passed an order of injunction (Ext.DW-1/B); which was extended (Ext. DW-1/C); therefore, the title of Smt. Jeeto was in dispute and it was necessary for the plaintiff to establish that the defendant had attorned in favour of the plaintiff to establish the relationship of landlord and tenant between himself and defendant.

The plaintiff did not appear in the witness box, he examined his General Power of Attorney Jagdish Lal Saini, (PW-1), who stated in para 3 of his proof affidavit that the defendant has attorned in favour of the plaintiff after the execution of the gift deed. However, he admitted in his cross-examination that the shops were rented before the plaintiff became the owner. He also admitted that the shop was taken from Lal Singh, husband of Smt. Jeeto. He has not specified the date or time when the defendant attorned in favour of the plaintiff. He did not produce any receipt to corroborate his version. Therefore, both the learned Courts below had correctly held that in the absence of the evidence of attornment, the relationship between the plaintiff and the defendant was not established.

Jagdish Lal Saini stated that the defendant had attorned in favour of the plaintiff. He never stated that the defendant attorned in favour of the plaintiff by making payment to Jagdish Lal Saini. It was laid down by the Hon’ble Supreme Court in Iqbal Basith & others Vs. N.Subballakshmi & others 2021 (2) SCC 715, that when a party does not appear in person to depose and examine his power of attorney, an adverse inference has to be drawn. It was observed:-

“9. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44/6. The respondents in their written statement claimed ownership and possession of property no. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no. 1 did not appear in person to depose and be cross-examined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was furnished as to why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant no. 1 in the circumstances.

In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 this Court observed as follows:-

"17.....Having not entered into the witnessbox and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."

In the present case, the plaintiff asserted that the defendant had attorned in his favour. He never examined himself, therefore, an adverse inference has to be drawn that the version of the plaintiff regarding the attornment is not correct. Once, it is so held, the plaintiff cannot be held entitled to the possession and mesne profits and there is no infirmity in the findings recorded by the learned Courts below. Hence ,the substantial question of law is answered accordingly.Final order :

In view of the above, the present appeal fails and the same is dismissed. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.