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Bombay High CourtIndian Cases

Govind S/O Raoji Katole vs Ganpati S/O Tukaramji Khanke Dead … on 21 September 2001

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Bombay High Court
Govind S/O Raoji Katole vs Ganpati S/O Tukaramji Khanke Dead … on 21 September, 2001
Equivalent citations: 2002(1)BOMCR124
Author: P.S. Brahme
Bench: P.S. Brahme
JUDGMENT

P.S. Brahme, J.

1. This second appeal is preferred by original defendant in Regular Civil Suit No. 82 of 1977 challenging the judgment and decree passed by the Additional District Judge, Wardha, in Regular Civil Appeal No. 59 of 1982 dated 14-6-1985 reversing the judgment and decree of dismissal of the suit dated 29-6-1982 and granting decree for possession in favour of the plaintiff.

2. The subject matter of the suit was portion of land admeasuring 0.35, decimal, i.e. 13.84 Are out of land Survey No. 143/1 and 144/1 as shown by letters A, B, C, D in the map (Exhibit 30). It is admitted that by registered sale-deed dated 13-3-1955 the plaintiff/respondent purchased field Survey Nos. 143/2, 144/2, 145-146/2, 155 and 150/3 in all measuring 15.09 Are from one Sitaram Parmanand. He also purchased 0.70 decimal of land out of Survey Nos. 143/1 and 144/1, which is the field adjoining the above said fields to the northern side. At the same time, the defendant also purchased 8.80 acres out of field Survey No. 143/1 and 144/1 from Sitaram Parmanand by the same registered sale-deed. It is the case of the plaintiff that on the date of purchase of the lands by plaintiff and defendant from Sitaram Parmanand, respective portions of the land were taken into possession by them after having got measured by the Patwari of the village and got demarcated by placing a common East-West boundary. It is the case of plaintiff that 0.70 decimal of land out of field Survey No. 143/1 and 144/1 was purchased by him from Sitaram Parmanand on that date with a view to make the Dhura between the lands purchased by the plaintiff and the defendant to make it straight. Some time before filing the suit it is revealed by the plaintiff that defendant has illegally made encroachment upon his land when he dug a drainage for water. He, therefore, got his land measured by cadastral surveyor on 24-5-1974 and it was revealed that the portion of the land measuring 0.35 decimal, i.e. 13.84 Are of his field Survey No. 143/1 and 144/1 has been encroached upon by the defendant as shown by letters A, B, C, D in the plaint map. After giving notice to the defendant which came to be replied by him dated 17-9-1974, the plaintiff brought action against the defendant by filing the aforesaid suit in the Court of Civil Judge, Sr. Dn., Wardha, and claimed possession of the encroached land so also damages for three years amounting to Rs. 300/-.

3. The appellant/defendant resisted plaintiff’s claim by his written statement (Exhibit 11). He admitted that they had purchased their respective land on the same day from Sitaram Parmanand. He, however, denied that plaintiff got measured his land and it was found that defendant has made encroachment upon plaintiff’s land acquiring possession of 0.35 decimal of land. He contended that he had no knowledge of the measurement of the land by the plaintiff. He contended that he had filed Civil Suit No. 35 of 1975 against the plaintiff for a way through his field. He has further contended that it is the plaintiff who has encroached upon the field of defendant to the extent of 14 Are. He got his land measured on 22-10-1975 and thereby it was ascertained that plaintiff has occupied 14 Area of land out of his land bearing Survey No. 143-144/1. Defendant has claimed possession of that encroached portion of the land from plaintiff and for that he has preferred counter-claim.

4. Plaintiff and defendant led oral and documentary evidence and went on trial with the issues framed at Exhibit 14. Plaintiff placed reliance on the evidence of Krushna Deotale (P.W. 1) who measured the land of plaintiff and found that there was encroachment by defendant to the extent of 13.84 Are (0.35 decimal). As against this, defendant led the evidence of Vishnu Ramchandra Bhusari (D.W. 5) who measured defendant’s land and found that plaintiff has made encroachment in defendant’s land to the extent of 14 Ares. The learned trial Court on appreciating the evidence led by plaintiff and defendant found that plaintiff failed to prove that encroachment by the defendant and, therefore, plaintiff’s suit was dismissed. The trial Court also dismissed the counter claim of the defendant holding that the defendant has failed to prove that plaintiff has made encroachment in defendant’s land to the extent of 14 Acres.

5. The respondent/plaintiff aggrieved by the dismissal of the suit preferred Civil Appeal No. 181 of 1985. The appellant/defendant while resisting the appeal also preferred cross-objection, being aggrieved by the dismissal of his counter claim. The first Appellate Court, as stated earlier, allowed the appeal and reversed the decree of dismissal of the suit and finding that plaintiff has proved that defendant has committed encroachment to the extent of 13.84 Ares of the land passed a decree for possession directing the appellant/defendant to deliver possession. The first Appellate Court, however, confirmed the dismissal of the claim for damages as also the counter claim of the respondent by dismissing the cross objection. The first Appellate Court accepted plaintiff’s evidence and held that the defendant has committed encroachment, as has been proved by plaintiff’s witness Krushna Deotale (P.W. 1) who, as cadastral surveyor, measured plaintiff’s fields and shown the portion of the land encroached upon by the defendant in the map (Exhibit 30). At the same time, the first Appellate Court discarded the evidence of the defendant and his witness Bhusari (D.W. 5) who prepared the map (Exhibit 67) for the reasons given in paras 7 and 8 of the judgment. It is pertinent to note that the trial Court while appreciating the evidence of the plaintiff’s witness Krushna Deotale (P.W. 1) has dicarded the measurement taken by him and doubted the correctness of the map (Exhibit 30) drawn by him. The first Appellate Court while reversing this finding and accepting the evidence of plaintiff’s witness Deotale observed that this witness in his cross-examination has admitted that while making measurement of the land he did not ascertain whether the two points fixed by him were correct and he did not measure the distance between these two points and the trial Court while appreciating the evidence has given much weight on this lacuna and discarded the measurement. The first Appellate Court in this regard observed that defendant has not shown by any cogent evidence or even by cross-examination that these points were not correct. The first Appellate Court also referred to the evidence of defendant’s witness Bhusari (P.W. 5) who also did not say that he had fixed any point before starting the measurement and, therefore, the first Appellate Court observed that if the evidence of both the cadastral surveyors cannot be discarded on this ground alone, i.e. how the first Appellate Court felt justified in accepting the evidence of plaintiff’s witness, namely Deotale (P.W. 1) and the measurement made by him holding that there was encroachment in the field of plaintiff.

6. This Court admitted the second appeal on 6-2-1986 formulating the substantial question of law as contended in ground No. 3 of the memo of appeal which is stated precisely as under :

While the measurement of the land is made, permanent and traverse marks are to be fixed with reference to “Chabutra” and not with reference to imaginary points. This method in fixing the two points has not been explained by the witness Deotale (P.W. 1) in his evidence. Hence, his measurement has no legal basis. Those two points on the land can be fixed without reference to “Chabutra” and as such it should not have been and could not have been accepted by the first Appellate Court. In view of this legal position, the finding of the first Appellate Court “when the measurements were taken by plain table method, if two points are fixed and then measurements are started, I do not feel that there is any possibility of error”, is absolutely illegal. Therefore, the evidence of cadastral surveyor, who measured the land of the plaintiff, is not a conclusive piece of evidence.
7. The learned Counsel, Ms. Tilwani, appearing for the appellant, in the course of her arguments, brought to the notice of the Court the additional grounds raised by the appellant as substantial questions of law involved in this appeal. She, however, pressed for one additional ground, which reads as under :

“Whether the suit can be decreed in the absence of proving the cause of action on the basis of which the whole suit was resting, specially when the trial Court has given a positive finding that the cause of action was not proved by the plaintiff.”
8. The learned Counsel for the appellant, Ms. Tilwani, submitted that the first Appellate Court has erred in law in accepting the evidence and map of measurement Exhibit 30 prepared by Deotale (P.W. 1), the cadastral surveyor, by totally ignoring the fact that he did not follow the asserted and prescribed method of measurement required to be followed under the revenue system. In his evidence, he has admitted that he did not ascertain whether the two points fixed were correct and he did not measure the distance between these two points. He did not locate the permanent fixed points in the field of plaintiff before actually starting the measurement. He candidly stated that there were no trees on common Dhura. She pointed out that the plaintiff in his evidence admitted that there are Babul trees and one Beri tree on the Dhura in between his field and the field of the defendant, but in the map Exhibit 30 prepared by plaintiff’s witness Deotale neither the common boundary nor the trees thereon are shown. She also pointed out that plaintiff’s witness Deotale (P.W. 1) did not actually measure the entire land of plaintiff, as in the map Exhibit 30 total area of the lands belonging to plaintiff has not been shown. She further pointed out that defendant’s witness Deorao Pole has stated in his evidence that the Dhura (East-West common boundary) between the land of plaintiff and defendant was in the same position as it was in the year 1950-51 when the plaintiff and defendant purchased the lands from Sitaram and this fact is admitted by plaintiffs. It is submitted that the first Appellate Court ignored this evidence depicting the factual position which is contrary to the claim of plaintiff that defendant committed encroachment on his land. She submitted that the first Appellate Court has given finding of fact as to encroachment alleged to have been committed by defendant, reversing the finding of fact given by the trial Court. It is submitted that non-consideration of record by the first Appellate Court which was contrary and falsifying the evidence of Deotale (P.W. 1) has resulted into wrong conclusion of facts as to the encroachment by the defendant. It is also submitted that as to the issue of encroachment there is no concurrent finding inasmuch as the trial Court has found that there was no encroachment committed by defendant, while it is the first Appellate Court which found that there was encroachment committed by defendant accepting the evidence of plaintiff’s witness Deotale and map Exhibit 30 as conclusive proof. She submitted that the map drawn by the surveyor plaintiff’s witness Deotale is not admissible in evidence, as he has not followed the correct procedure. The basis of measurement is erroneous. Non-consideration of relevant evidence by the first Appellate Court has vitiated the findings of fact.

9. The learned Counsel submitted that plaintiff alleged that defendant committed encroachment by doing particular act, i.e. by digging a channel. There is no evidence to show that the Nali was in existence in the portion of the land alleged to have been encroached upon. In addition to this the trial Court has given specific finding of fact as to the cause of action holding that plaintiff has failed to prove that defendant dug Nali in his land. The first Appellate Court has not reversed this finding of fact given by the trial Court. In the circumstances, finding of fact as to encroachment is based on only evidence of plaintiff’s witness Deotale and the map Exhibit 30 drawn by him. It is, therefore, submitted that the first Appellate Court has committed an error in accepting the evidence of plaintiff’s witness Deotale as conclusive proof to establish the factum of alleged encroachment. She has placed reliance on a decision Gopal Behera & others, petitioners v. Lokanath Sahu & others, respondents, to support her proposition that the report of the Commissioner regarding measurement of the land should not be accepted by the Court if there are serious discrepancies in Commissioner’s report and his evidence recorded in the Court. It is observed that if a defective report is accepted brushing aside the serious discrepancies in the evidence of the Commissioner and his report and materials recorded during local investigation, such a report instead of assisting the Court is likely to mislead it.

10. She also placed reliance on a decision Badan Prasad Jaiswal, petitioner v. Bira Khamari & another, opposite parties. It is observed that when the report of the Commissioner measuring the land in dispute clearly states that as there was no fixed point available near the disputed plot and it was not possible to carry out the measurement from the point that was available as no line was properly visible from there and, therefore, he has set up two imaginary points with the help of the map and carried out the measurement of the land in dispute, the report of the Commissioner suffers from fundamental error as there could not be any guarantee of accuracy of the measurement in the process adopted by the Commissioner. The learned Counsel, placing reliance on these decisions, submitted that the first Appellate Court committed an error in accepting the map Exhibit 30 and as such there is substantial question of law involved in this appeal even as to the finding of fact recorded by the first Appellate Court as to the encroachment committed by the defendant.

11. The learned Counsel for the appellant also placed reliance on a decision Dilbarai Punjabi, appellant v. Sharad Chandra, respondent, in which the Apex Court has held that the Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding.

12. The learned Counsel for the appellant also placed reliance on the decision of the Apex Court in Hira Lal & another appellants v. Gajjan and others, respondents, to support the proposition that when there is substantial error or defect in procedure, the High Court can interfere in finding of fact. Section 100(1)(c) of Civil Procedure Code refers to a substantial error or defect in the procedure. The error or defect in the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits. Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. However, when the first Appellate Court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the Court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision.

13. The learned Counsel for the appellant submitted that there is positive evidence that the Dhura (East-West common boundary) is intact. The trial Court has given a finding that plaintiff has failed to prove the cause of action for the suit and that finding has not been reversed by the first Appellate Court. Therefore, in the absence of proof of cause of action the first Appellate Court should not have decreed the suit by reversing the finding of fact as to encroachment. She also placed reliance on a decision of Apex Court in Budhwani & another, appellants v. Gulab Chand Prasad, respondent. In this case, the matter was before the Apex Court against an order passed by the High Court in second appeal. It is observed that where the trial Court on the basis of evidence before it found that the landlord was in bona fide requirement of the tenanted shop for the business requirement of the members of the joint family but the Appellate Court reversed that finding on baseless assumptions and wrong principles of law, the High Court in second appeal is justified in setting aside the finding of the Appellate Judge even though it was factual in character. It is observed that it is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its right in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding.

14. The learned Counsel for the appellant also placed reliance on a recent decision of Apex Court reported in 2001(2) Mh.L.J. 786, Santosh Hazari, appellant v. Purushottam Tiwari deceased by L.Rs. respondent, in which the scope for interference by the High Court in second appeal vis-a-vis the substantial question of law is explained by the Apex Court. It is observed that section 100 of Civil Procedure Code, as amended in 1976, restricts the jurisdiction of High Court to hear a second appeal only on substantial question of law involved in the case. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has been formulated by the High Court. Such question or questions may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. Inspite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. The Apex Court also observed that the substantial question of law need not necessarily be a substantial question of law of general importance. It depends upon the facts and circumstances of each case whether a substantial question of law is substantial one and involved in the case or not. To be a question of law “involving 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 Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. 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.

15. The Appellate Court has jurisdiction to reverse or affirm the findings of trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge, who authors the judgment. Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasonings assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first Appellate Court had discharged the duty expected of it.

16. In that case, the Apex Court found that the High Court has ignored and also not formulated substantial question of law as whether on pleadings and the material brought on record by the defendant, the first Appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963 more so when such finding was arrived at in reversal of the findings of the trial Court? It may be mentioned that in that case plaintiff’s suit in the trial Court for possession of the portion of the land illegally dispossessed by the defendant who raised a plea of bar of limitation in view of the suit being filed for more than 12 years after the date of dispossession, and plea of defendant having acquired title by adverse possession, came to be decreed. The trial Court negatived defendant’s plea of adverse possession. In the first Appellate Court the finding of fact was reversed and plaintiff’s suit was dismissed. Plaintiff preferred second appeal which came to be dismissed in limine by the High Court and without formulating substantial question of law that arose for determination observing that no substantial question of law arose for determination as the matter stood concluded by the finding of facts. The learned Counsel for the appellant has relied upon this decision of the Apex Court to emphasise her submission that when there is no concurrent finding of facts, the High Court is within its power to interfere with the decision in the second appeal when there is a substantial question of law involved.

17. The learned Counsel for the appellant placed reliance on the recent decision Vishnu Prakash & another, appellants v. Sheela Devi (Smt.) & others, wherein it is held that the lower courts have ignored evidence on record, including positive statements of witnesses or findings in judgments in earlier related cases or where parties have made certain admissions in earlier cases and have then taken a contrary stand, Court of second appeal would be within jurisdiction in interfering.

18. The learned Counsel for the appellant placed reliance on a judgment , Boku Mahton & others, appellants v. Most, name not known, widow of Anathi Thakur & others, respondents, wherein the concept of cause of action has been explained. The cause of action means an action for which the defendant is answerable to the Court. If the cause of action is not controverted by the defendant, the plaintiffs are bound to succeed in the case. In order to succeed in the case, the plaintiffs are required to plead and prove the cause of action. If the plaintiff fails to prove the cause of action his case will fail on that account. It is not essential for the plaintiffs to prove each fact, but it is necessary to prove such facts which are necessary to be proved for the success of the case.

19. The learned Counsel for the appellant also pressed for the counter claim made by defendant which came to be rejected by the trial Court as well as the first Appellate Court. She submitted that the appreciation of evidence while rejecting the counter-claim by the courts below was erroneous and ignoring legal evidence and material on record.

20. Mr. Lambat, learned Counsel for the respondent, supported the judgment and decree passed by the first Appellate Court. He submitted that the defendant has admitted that plaintiff purchased 0.70 decimal of land out of Survey Nos. 143/1 and 144/1. The defendant also purchased 8.80 acres of land out of Survey Nos. 143/1 and 144/1. The first Appellate Court has given a positive finding on encroachment committed by defendant by accepting the evidence of plaintiff’s witness Deotale and Map Ex. 30 drawn by him. There is no procedural error in measuring the land and the Appellate Court has committed no error in accepting that evidence when it was objected by the defendant. He submitted that the trial Court as well as the Appellate Court have rightly rejected defendant’s counter-claim. There is concurrent finding in that regard and, as such, no interference is called for as there is no substantial question of law involved. He urged that the appeals be dismissed.

21. Mr. Lambat, learned Counsel for respondent, in reply submitted that there is a concurrent finding of facts as to rejection of counter-claim of the defendant. That the courts below have not committed any error or illegality while appreciating the evidence relating to counter-claim and as such no substantial question of law arise in respect of the counter-claim, and, therefore, no interference is called for in second appeal having regard to the provisions of section 100 of Civil Procedure Code.

22. The material issue of fact concerning the claim of respondent/plaintiff over which there is a controversy between the parties and for which the parties went on trial before the trial Court was, whether the appellant defendant committed encroachment on the land of respondent/plaintiff to the extent of 13.84 Ares (about 0.35 decimal). To substantiate this claim, plaintiff placed reliance on the evidence of Deotale (P.W. 1), who admittedly measured the land of the plaintiff and prepared the map Ex. 30 indicating that defendant has committed encroachment in the field of plaintiff to the extent of 13.84 Ares. In addition to this, plaintiff himself gave evidence before the trial Court to substantiate his claim. There is no other oral or documentary evidence led by the plaintiff on this relevant issue of fact. Defendant has controverted very seriously plaintiff’s claim and as contended by the defendant in his written statement (Ex. 11), it is specifically denied that any encroachment was made by defendant on the land of plaintiff, as alleged. In addition to controverting the oral evidence of plaintiff’s witness Deotale challenging the correctness of the measurement of land, defendant has led oral evidence by examining himself and four witnesses, namely Vasant Chintaman Mahajan (D.W. 2) whose agricultural land is adjacent to the land of plaintiff and defendant, Deorao Shankarrao Powale (D.W. 3), who was land surveyor and who has measured the lands purchased by plaintiff and defendant from Sitaram and they were placed in possession of respective lands by putting a common East-West boundary, and Vishnu Bhusari (D.W. 5) who claims to have measured the land of defendant on 22-10-1975 and found that plaintiff has committed encroachment on defendant’s land to the extent of 14 Ares as indicated in the map Ex. 67. Defendant has admitted in his reply of notice (Ex. 41) the factual position particularly about the purchase of land by plaintiff out of field Survey Nos. 143/1 and 144/1 admeasuring 0.70 decimal on the same day and in addition to purchase of the field bearing Survey No. 145-146/2, 155-150/3, it is pertinent to note that this land of 0.70 decimal purchased by plaintiff was abutting the common East-West boundary which then existed. It is also pertinent to note that in the map Ex. 30 prepared by plaintiff’s witness Deotale, this common boundary between the fields of plaintiff and defendant is not shown. It is borne out from the evidence of defendant and his witnesses so also the map Ex. 67 drawn by defendant’s witness Bhusari (D.W. 5) that there are trees on this common boundary and as stated by defendant’s witness Deorao Powale (D.W. 3), this common Dhura between the land of plaintiff and defendant is in the same position with the trees thereon as it was in the year 1951 when the plaintiff and defendant purchased the lands from Sitaram and were placed in possession of respective lands. It is pertinent to note that plaintiff himself has admitted this factual position as to common Dhura between their lands as also about the trees standing on the common boundary. However, plaintiff’s witness Deotale has audacity to say that there were no trees on the common Dhura. It is also brought in the evidence of plaintiff’s witness Deotale that he did not ascertain whether the two points fixed by him were correct and he did not measure the distance between these two points. He did not state that he located some permanent points or marks in the field of plaintiff before fixing two points on the basis of which the measurement was done.

23. As stated earlier, the trial Court has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issue on which the parties went on trial. The trial Court discarded the oral evidence of plaintiff’s witness Deotale and the map Ex. 30 because of discrepancies in the evidence and failure on the part of the witness Deotale to follow correct procedure while measuring the land. The trial Court also rejected the evidence of defendant relating to the counter-claim discarding the map (Ex. 67). That is how the trial Court dismissed plaintiff’s suit so also the counter-claim of the defendant.

24. The first Appellate Court assessed independently the evidence and accepted plaintiff’s evidence consisting of the map Ex. 30 and reversed the finding of the trial Court on material issue relating to the encroachment alleged to have been made by defendant on plaintiff’s land and accordingly plaintiff’s suit was decreed. But at the same time the first Appellate Court rejected the cross-objection of the defendant relating to the counter-claim which was rejected by the trial Court.

25. Now, we consider the first challenge to the rejection of counter-claim of the defendant by the first Appellate Court confirming the rejection of the same by the trial Court. The learned Counsel for the appellant could not make out any substantial question of law in relation to the rejection of counter-claim. She could not point out any material illegality or error on the part of both the courts below in rejecting the evidence of the defendant on the question of counter-claim. The learned Counsel for respondent was right in his submission that there is a concurrent finding of fact as to the material question relating to the counter-claim of the defendant and as such interference by the High Court in second appeal to the challenge of rejection of counter-claim is extensively barred by section 100 of Civil Procedure Code. Therefore, the decree of the first Appellate Court rejecting the counter-claim of appellant is confirmed.

26. Let us now consider the challenge to the decree passed by the first Appellate Court reversing the dismissal of the suit. There is no concurrent finding of fact regarding the main issue relating to the claim of the plaintiff as the trial Court has rejected the claim holding that plaintiff has failed to prove that there was encroachment committed by the defendant. It is, however, the first Appellate Court which has reversed that finding of fact and plaintiff’s suit came to be decreed. As stated earlier, the first Appellate Court has accepted the evidence of plaintiff and his witness Deotale (P.W. 1) and the map Ex. 30. This was the exclusive evidence which the first Appellate Court has taken into consideration and accepted also. The learned Counsel for the appellant has submitted that the first Appellate Court has committed an error in accepting the evidence of plaintiff’s witness Deotale and the map Ex. 30 as the said evidence was inadmissible under law because of fundamental error committed by plaintiff’s witness Deotale while measuring the land. It is also submitted that the findings of fact arrived at by the first Appellate Court on this issue suffers from serious illegality in not considering the relevant material evidence on record which was contrary to the evidence of plaintiff’s witness and the map Ex. 30 falsifying the same. That is how, according to the learned Counsel for the appellant, substantial question of law is involved in this appeal.

27. We shall now consider the authorities relied upon by the learned Counsel for the appellant, reference to which has been made in earlier part of the judgment. In the decision (supra), the High Court has clarified the position regarding the conditions to accept the report of the Commissioner by the courts. It is stated that the report of the Commissioner is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. If the Court finds that the report of the Commissioner is not free from blemish and there is discrepancy in the evidence of the Commissioner and his report which is likely to mislead the Court, the right course for the Court would be to reject the report of the Commissioner, so also his evidence. In the case before hand, the relevant material brought on record and even admitted by plaintiff is contrary to the map Ex. 30 and evidence of plaintiff’s witness Deotale which is sufficient to indicate that the factual position as to the encroachment alleged to have been made by defendant is not correct. It is abundantly clear and admitted by plaintiff that the common boundary between his land and that of defendant is in existence having trees on it. It is further made clear through the evidence of defendant and his witnesses and particularly Deorao Powale (D.W. 3) that the common boundary between the lands of plaintiff and defendant was found to be in the same position as it was in the year 1950-51 when the lands were purchased by plaintiff and defendant from Sitaram. It is pertinent to note that the evidence of this witness has gone unchallenged, particularly on this aspect as to the existence of common Dhura between the lands of plaintiff and defendant. It is also borne out from the evidence of defendant’s witness Vasant Mahajan and defendant that the Nali was in existence as before the purchase of the land and it is situated on the Northern side of the common Dhura between the lands of plaintiff and defendant, but plaintiff’s witness Deotale has denied about the existence of the trees on the common dhura so also about the Nali on the Northern side of common Dhura. Having regard to other evidence on record of defendant and admission by the plaintiff himself, it has to be said that plaintiff’s witness Deotale has falsified while denying the existence of Nali on the Northern side of common Dhura and that of trees on the common Dhura. The first Appellate Court has ignored this relevant and material evidence on record which falsifies the position in the map Ex. 30 about the encroachment committed by the defendant.

28. In the decision (supra), the report of Commissioner regarding measurement of the land in dispute has been discarded as it was found that there was no fixed point available near the dispute plot and it was not possible to carry out the measurement from the point that was available as no line was properly visible from there and, therefore, the Commissioner had to set up two imaginary points with the help of the map and carry out the measurement of the land in dispute and, therefore, the High Court found that the report of the Commissioner suffers from fundamental error as there could not be any guarantee of accuracy of the measurement in the process adopted by the Commissioner. The Court further observed that the order of the Court accepting the report of the Commissioner cannot be sustained. In the case before hand, the learned Counsel for the appellant has rightly pointed out from the evidence of Deotale (P.W. 1) that no permanent points were fixed or located before starting the measurement of land in dispute. The witness Deotale however admitted that he fixed two points but did not measure the distance between those two points and, therefore, the correctness of the two points could not be ascertained. The first Appellate Court has not taken into consideration this piece of evidence. It goes without saying that when the land is measured by plain table method the authority measuring the land has to locate permanent fixed points since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, he has to find out other permanent structures near about the plot and take measurement. In no circumstances, the surveyor should not have set up imaginary points with reference to the map by which process there cannot be any guarantee of accuracy of the measurement. Therefore, it has to be said that the first Appellate Court fell into error of not appreciating such fundamental errors committed by Deotale (P.W. 1) while measuring the land. In addition to this, what is found on record by me is that the map Ex. 30 no where points that permanent fixtures are noted by Deotale muchless of the trees which were standing on the common Dhura of the land and as the evidence stands these trees were standing since the time the land was purchased by the plaintiff and defendant. It is also pertinent to note that in the map Ex. 30 besides defendant, encroachment is claimed to have been made by others but the witness had not measured the lands of other persons including defendant. He has also not indicated in the map Ex. 30 the total acreage of the land owned by plaintiff that was found at the time of measurement. The position of Nali is admittedly on the Northern side of the common Dhura. That is also not shown correctly in the map Ex. 30. This relevant material in the evidence and serious fundamental error in the measurement materially affects the accuracy and authenticity of the measurement. Therefore, the first Appellate Court committed an error in accepting the evidence of Deotale (P.W. 1) and map Ex. 30 as conclusive evidence supporting the claim of plaintiff as to encroachment.

29. The decision (supra) relates to the jurisdiction of the High Court to interfere even there is finding of facts in second appeal as envisaged under section 100 of Civil Procedure Code. It is observed that the Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. In that case there was concurrent finding against plaintiff who sought eviction of the tenant on the ground of requirement of premises personally for starting business. The High Court, however, in second appeal reversed the finding as it was found that the courts below and more particularly the first Appellate Court while recording concurrent finding of fact refused to consider important evidence having direct bearing on the disputed issue and the error which arose was of a magnitude that gave birth to a substantial question of law. So, the Apex Court in appeal preferred by the tenant justified the interference by the High Court in setting aside the concurrent finding of fact holding that the effect of ignorance of relevant evidence having direct bearing on the disputed issue and the error which arose was of a magnitude that gave birth to a substantial question of law.

30. The same position has been reiterated by the Apex Court in the decisions and (supra). In the recent decision in the Apex Court has observed that when the lower courts have ignored the evidence on record including positive statements of witnesses or when the parties have made certain admissions, the Court of second appeal would be within jurisdiction in interfering with the finding of fact arrived at by the first Appellate Court. It is observed by the Apex Court that non-consideration of material evidence and ignoring admissions made by the parties warranted interference at the hands of the High Court to set aside the findings of the courts below. It is pertinent to note that before the Apex Court a contention was raised that High Court was not at all right and justified in interfering with the concurrent findings of fact recorded by the courts below based on evidence, the Apex Court has turned down that submission and the Apex Court has accepted the submission on behalf of respondent that the High Court was perfectly justified in interfering with the findings recorded by the courts below when they committed a manifest error both on facts and in law. The position in the case before hand is on a better footing in the sense there is no concurrent finding of fact inasmuch as the first Appellate Court has reversed the finding of facts on material issue. When it is found that the first Appellate Court has committed an error in accepting the evidence of plaintiff as conclusive to establish the alleged act of encroachment, as that evidence was inadmissible because of fundamental error, as pointed out earlier, there is justification for this Court to interfere with the findings of fact.

31. Now we consider the second ground on which the decree was passed by the first Appellate Court is assailed by the learned Counsel for the appellant. It is submitted that the first Appellate Court has committed an error in passing the decree in the absence of proof of cause of action by the plaintiff. It was plaintiff’s averment in the plaint that the cause of action arose when defendant dug Nali in his land in the year 1974. It was specifically claimed by the plaintiff that defendant made encroachment on his land in the year 1974 when he dug Nali in the land of plaintiff. The trial Court has framed specific issue on this factum of cause of action inasmuch as defendant has controverted the allegations in that regard. Defendant denied that Nali was due in the year 1974. It was contended by him that the Nali was already in existence when the fields were purchased and that in the year 1974 defendant only cleaned that Nali. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding this relevant issue for which the parties went on trial. It is found that except the bare words of plaintiff there is no evidence to show that the defendant dug Nali in the year 1974, as alleged by the plaintiff. On the other hand, defendant has adduced evidence to show that this Nali was in existence when the fields were purchased in year 1951. In this connection the contention of the defendant has been supported by the evidence of witnesses Vasant Mahajan (D.W. 2) and Vishnu Bhusari (P.W. 5). It is found that the Nali was in existence since prior to the purchase of the lands by plaintiff and defendant and it was on the Northern side of the East-West common boundary, which is about 3 feet in width. The trial Court accepting the evidence adduced by defendant recorded a finding that plaintiff has failed to prove that defendant dug Nali in the year 1974. The trial Court also found that plaintiff has failed to prove that defendant committed encroachment. That is how the trial Court dismissed plaintiff’s suit. It is very strange to note that the first Appellate Court in reversing the judgment and decree of the trial Court has not reversed the finding of the trial Court on this relevant issue concerning the cause of action. In other words, the finding by the trial Court that plaintiff has failed to prove that defendant committed encroachment in the year 1974 when he dug the Nali in his field stood confirmed by the first Appellate Court. Therefore, it is submitted by the Counsel for the appellant/defendant that the first Appellate Court has committed an error in decreeing the plaintiff’s suit for possession in the absence of proof of cause of action for filing the suit. Taking into consideration the factual position that is borne out on the evidence on record, it appears that the first Appellate Court was not right in reversing the decree passed by the trial Court when it was established that plaintiff failed to prove that cause of action arose in the year 1974 as alleged in the plaint. At least, the first Appellate Court should have assigned reasons in his judgment for disagreeing with the finding of the trial Court on this issue. Therefore, on this ground also, the decree passed by the first Appellate Court cannot sustain.

32. In the earlier part of judgment, reference has been made to the recent decision of Apex Court reported in 2001(2) Mh.L.J. 786. In that case, the trial Court had decreed plaintiff’s suit for possession negativing the plea of defendant of adverse possession. Defendant preferred appeal and the first Appellate Court reversed the finding of the trial Court holding that the plaintiff has not shown to have taken any steps for dispossessing the defendant and the plea raised by the plaintiff of the defendant having forcibly occupied the land in dispute on 20-8-1981 did not appear to be tenable and consequently upholding the plea taken by defendant of adverse possession, the suit was directed to be dismissed. The plaintiff preferred second appeal which has been dismissed in limine by the High Court passing a brief order that the matter stood concluded by findings of fact and no substantial question of law arose for determination. So the plaintiff took the matter to the Apex Court. The Apex Court allowed the appeal and remanded the matter to the High Court for deciding the substantial question of law that arose in the matter and that is formulated by the Apex Court. The Apex Court found that the first Appellate Court has in a very cryptic manner reversed the finding on the question of possession and dispossession, as alleged by plaintiff, as also on the question of adverse possession as pleaded by defendant. Whereas the trial Court has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issue on which the parties went on trial. It was also found that in support of plea of adverse possession of the disputed land the defendant did not produce any documentary evidence while oral evidence adduced by defendant was conflicting in nature and hence unworthy of reliance. Therefore, the Apex Court observed, “the Appellate Court has jurisdiction to reverse or affirm the findings of trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court ————————- While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authorise the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law, if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. The Rule is and it is nothing more than a Rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first Appellate Court had discharged the duty expected of it. We need only remind the first Appellate Courts of additional obligation cast on them by the scheme of the present section 100 substituted in the Code. The first Appellate Court continues, as before, to a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first Appellate Court is also a final appeal. Now the first Appellate Court is also a final question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first Appellate Court even on questions of law unless such question of law be a substantial one”.

33. The Apex Court coming to the facts of the case prima facie found that the first Appellate Court did not discharge duty cast on it as a Court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of section 100 of the Code, on account of the substantial question of law involved in appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless deficiency was brought to the notice of the appellant previously by the High Court Registry or the Court and yet the appellant had persisted in his default. That was not done. So the Apex Court found that the substantial question of law did arise as involved in that case and worth being heard by the High Court. That substantial question of law has already been reproduced in earlier part of the judgment. The crux of the substantial law is that whether on the pleadings and the material brought on record by defendant, the first Appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time, more so when such finding was arrived at in reversal of the findings of the trial Court.

34. I have reproduced the observations of the Apex Court in the decisions, as stated above, for the reasons that the case at hand is on a better footing as the first Appellate Court has committed an error in reversing the findings of the trial Court without there being any reasons for accepting the evidence which was the evidence of plaintiff’s witness on the issue of encroachment which has been discarded by the trial Court by giving sound reasons. It is also found that the first Appellate Court has ignored the relevant evidence and material on record depicting the true picture of the factual position that stood vis-a-vis the lands of plaintiff and defendant and existence of common East-West boundary, so also the Nali on the Northern side of that boundary falsifying plaintiff’s claim of encroachment by the defendant.

35. It is also found that the first Appellate Court did not deal with the plea of adverse possession raised by defendant in his written statement. It is very strange that the first Appellate Court has observed in his judgment that the question as to how long the defendant was in possession of his land, is of no importance while deciding this case as he does not show or he has not come with a case of adverse possession. It is true that before the trial Court the defendant has taken plea of adverse possession contending that he is in possession of the land since the time of purchase in the year 1951-52. The trial Court has not framed any issue in respect of the plea raised by the defendant relating to adverse possession. However, the trial Court has found that the defendant is in possession of the land since the time of purchase of the land. It was on the basis of the situation of the common boundary and positive evidence of defendant and his witnesses that the common boundary between the lands of plaintiff and defendant is in the same position as it was in the year 1951-52. That apart, the trial Court dismissed plaintiff’s suit mainly on the ground that plaintiff failed to prove that defendant committed encroachment as alleged. But the first Appellate Court was duty bound to consider the plea of defendant of adverse possession when the Appellate Court found that plaintiff has proved his case about encroachment committed by defendant. It is very strange that the first Appellate Court directly came to the conclusion that plaintiff is entitled to possession of the disputed land and passed decree directing defendant to deliver possession. It is obvious that the first Appellate Court has committed an error in coming to the conclusion that plaintiff is entitled to possession when the Appellate Court has not decided the plea of adverse possession taken by the defendant.

36. In the result, it is found that the first Appellate Court has committed an error in reversing the judgment and decree of dismissal of the suit of plaintiff holding that plaintiff is entitled to possession. It is basically for the reason that the first Appellate Court has committed an error in accepting the evidence of plaintiff’s witness relating to the measurement of land as there was fundamental error as pointed out earlier and the first Appellate Court has ignored relevant evidence and material on record falsifying the claim of plaintiff for encroachment. It is found that the trial Court was right in finding that plaintiff has failed to prove that defendant has committed encroachment. The evidence of plaintiff’s witness Deotale (P.W. 1) on the issue of encroachment on the basis of map Ex. 30 is not admissible as there is no guarantee of accuracy of the measurement because of fundamental error in measuring the land. It is also found that the first Appellate Court has not assigned any reason while reversing the finding of the trial Court on this material and relevant issue going to the root of plaintiff’s claim. There is no need to remand the matter to the first Appellate Court as I am satisfied that plaintiff has failed to prove that defendant has committed encroachment. Hence, the appeal will have to be allowed to the extent of reversing the judgment and decree passed by the trial Court.

37. In the result, the appeal is partly allowed.

The judgment and decree passed by the first Appellate Court in Regular Civil Appeal No 59 of 1982 dated 14-6-1985 decreeing plaintiff’s suit for possession is set aside.

The judgment and decree dated 29-6-1982 passed by the trial Court dismissing plaintiff’s suit is confirmed and plaintiff’s suit is dismissed.

The confirmation of decree of dismissal of counter-claim of the defendant by the first Appellate Court is maintained.

Parties to bear their own costs.