JUDGMENT S. Radhakrishnan, J.
1. The brief background of the second appeal is that the respondent herein was the original plaintiff namely Agricultural Produce Market Committee, Nanded, had filed suit for recovery of possession of 3 plots shown in green and red colour in the map annexed to the plaint. It appears that Nanded Municipal Council had resolved to transfer 47 Acres and 15 Gunthas land situated at New Mondha, Nanded, in favour of Agricultural Produce Market Committee (hereinafter referred to as the "Committee" for brevity) for a consideration of Rs. 75,000/- by its Resolution No. 224 dated 27-1-1970. This resolution was forwarded to the Government of Maharashtra for according sanction as per section 92 of the Maharashtra Municipalities Act, 1965. Ultimately, the Government of Maharashtra issued a Government Resolution dated 28-9-1970 whereby the necessary sanction was accorded. In pursuance thereof, Nanded Municipal Council delivered physical possession of the aforesaid 47 Acres and 15 Gunthas land on 21-1-1971. Prior thereto, the agreed consideration amount was already paid to the Council by the committee on 22-2-1970. It appears that Nanded Municipal Council, through its oversight, had mentioned only two survey numbers namely Survey Nos. 65 and 66, but the area was correctly mentioned as 47 Acres and 15 Gunthas which covered Survey Nos. 65, 66, and portions of Survey Nos. 72, 73, 27, 28 and 44. Finally this mistake was brought to the notice of the Government and ultimately the same was corrected by the Government of Maharashtra also in pursuance of Nanded Municipal Council's Resolution No. 11 dated 15-11-1975.
2. The Administrator of Nanded Municipal Council had executed registered sale deed in favour of the committee on 13-8-1976. It is relevant to note that at the time when the possession was handed over of the said land namely 47 Acres and 15 Gunthas, there were 4 or 5 persons on a small portion of the said land out of the aforesaid 47 Acres and 15 Gunthas. It appears that they had erected certain temporary constructions on those plots which were given to them on lease by Nanded Municipal Council. Nanded Municipal Council had asked the lessees to handover the possession of respective lands to the committee after expiry of lease period and the lessees had agreed. Only the appellant Ramchandra Ukandaji had declined to do so. Hence, the committee was driven to file a Civil Suit No. 311/1973 for recovery of possession of the three plots, 2 shown in red colour and 1 shown in green colour. Said 3 plots are also the subject matter of present suit also. The aforesaid Civil Suit No. 311/1973 came to be dismissed on 9-2-1977 mainly on the ground that the committee had not obtained a valid title with regard to the said plots inasmuch as there was no sale deed executed and registered between Nanded Municipal Council and the committee. The said sale deed was subsequently executed on 13-8-1976 and was duly registered. Under these circumstances, the present Civil Suit No. 237/1977 was filed by the committee against the appellant for recovery of possession. Prior to filing of said suit, the committee had issued a notice under section 106 of the Transfer of Property Act terminating the tenancy of the appellant on 28-3-1977 with regard to the red portion in the plan annexed to the plaint, but the said notice was refused. Thereupon second notice was given on 26-4-1977 whereby the tenancy was again terminated. The committee claimed possession of all these 3 plots and also Rs. 550/- as arrears of rent from 13-5-1977 to 13-7-1977.
3. In the above suit, the appellant, who is original defendant, by his written statement denied that the land was purchased by the committee. In the alternative, the appellant also contended that the plots occupied by the appellant were not part of land owned by the committee. The appellant had also taken a plea that even assuming that the Council had title to the said plots, the appellant's rights were not in any way affected inasmuch as the plots were leased to the appellant by the Municipal Council. The case of the appellant was that out of the three plots, one plot was leased by the Council directly to the appellant and the other two plots were taken by one Anjanrao from Nanded Municipal Council who had in turn sub-leased the said plots to the appellant.
4. The trial Court had framed almost 10 issues with regard to the rival contentions. In the said suit, the learned Joint Civil Judge came to the conclusion that the respondent-Committee herein had failed to prove its title to the suit plots and also the consequent encroachment by the appellant and, therefore, the said suit came to be dismissed by the trial Court.
5. Aggrieved by the same, the respondent committee herein had preferred Regular Civil Appeal No. 129/1980 before the District Court, Nanded. At the hearing of the appeal, it appears that though the trial Court had considered and given its finding on all the 10 issues, the appellant and the respondent herein did not argue or press the Issue Nos. 5 to 8 of the trial Court. The arguments were mainly whether the respondent committee was able to prove its title to recover possession of the plots and rent.
6. Under these circumstances, the lower Appellate Court had framed the following points for consideration:
"(1) Whether the plaintiff has proved its title to the suit plots?
(2) Whether the plaintiff has properly terminated the tenancy of the defendant?
(3) Whether it is proved that the defendant has encroached upon the two plots?
(4) Whether the plaintiff is entitled to recover possession and arrears of rent?
(5) What decree?
6A. Shri K.G. Nawander, the learned Senior Counsel appearing for the appellant through L. Rs. at the outset fairly stated that the appellant is not making any issue that portions of Survey Nos. 72, 73, 27, 28 and 44 were not included, that is to say, he contended that the appellant is not disputing the title of the committee with regard to 47 Acres and 15 Gunthas. What the appellant is objecting is only the portion of land occupied by the appellant namely those 3 plots as referred to in the plaint which do not form part of the aforesaid 47 Acres and 15 Gunthas and the same is outside the said 47 Acres and 15 Gunthas. As such the committee has no right whatsoever to recover possession of the same from the appellant. To put it in other words, the main contention of the appellant is that these 3 plots which are referred to in the plaint do not at all form part of the said 47 Acres and 15 Gunthas land of which the committee is the title holder and in view thereof, the committee could never recover possession of the same inasmuch as the committee has nothing to do with the aforesaid 3 plots which is beyond the aforesaid 47 Acres and 15 Gunthas.
7. The substantial questions of law on which the second appeal was admitted were as follows :-
"(1) Whether the suit is bad for mis-joinder of causes of action. The plaintiff's claim is that the plot of 18 x 34 was obtained by the defendant on lease and that two plots 18 x 15 and 18 x 51 were encroached upon by the defendant. This clearly shows that subject matter of dispute and causes of actions are different. Therefore, they should not have been included in one and the same suit. Therefore, the suit is bad for multifariousness.
(2) Whether the plaintiff has proved that the disputed plots are part and parcels of Survey Nos. 72, 73, 27, 28 and 44 ?
(3) Whether the findings of the lower Appellate Court that the suit plots are part and parcels or Survey Nos. 72, 73, 27, 28 and 44 is correct without any evidence in this respect?"
8. Shri Nawander, the learned Senior Counsel for appellant fairly submitted that the first substantial question of law dealing with mis-joinder of causes of action would not survive inasmuch as before the lower Appellate Court, this issue was not pressed, as is apparent from para 6 of the lower Appellate Court's order.
9. Therefore, the only two substantial questions of law i.e. Nos. 2 & 3 remained. If one were to analyse both the aforesaid questions, they are primarily dealing with the factual aspects namely whether the plaintiff proves that the disputed plots are part and parcel of Survey Nos. 72, 73, 27, 28 and 44. Similarly, even the third substantial question of law that whether findings of the lower Appellate Court that the suit plots were part and parcels of Survey Nos. 72, 73, 27, 28 and 44 is correct and without any evidence in this respect.
10. To put it in other words, the above issues purportedly raising substantial questions of law are in reality only dealing with questions of facts and not the questions of law.
11. In this context, it would be necessary to remember the scope of second appeal under section 100 of the Code of Civil Procedure, 1908. The same has been repeatedly reiterated by the Hon'ble Supreme Court and recently in a judgment of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, . In an exhaustive manner, the Supreme Court has laid down various aspects pertaining to the scope of second appeal.
12. The Supreme Court has categorically held as under :
"It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court.
The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
13. In fact, the Supreme Court has also made it clear in the aforesaid judgment that the High Court can not interfere unless the findings of the lower Appellate Court are perverse and based on no evidence.
14. What is important to note in the second appeal is that the High Court is concerned with a substantial question of law as opposed to question of fact. The Hon'ble Supreme Court in the judgment of Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg. & Mfg. Com. Ltd., held as under:
"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."
15. Shri Nawander, the learned Senior Counsel, strongly contended that these 3 plots are not falling within the aforesaid 47 Acres and 15 Gunthas owned by the respondent. Dealing with all these issues, the lower Appellate Court has gone into a detailed analysis of the evidence and has come to the clear finding that these disputed plots do form part of the aforesaid 47 Acres and 15 Gunthas. The lower Appellate Court has referred to various aspects of the evidence to justify such a conclusion. The lower Appellate Court has also referred to the statement of the appellant in his reply to the Municipal Council as under :
"The Council had transferred the market area to you on no profit no loss basis and the status quo is required to be maintained by you. Under these circumstances, if the ownership is transferred to you, you can claim the lease amount fully, but my possession can not become the possession of trespasser".
The learned Judge has also dealt with various contradictory stands taken by the appellant before the lower Appellate Court with regard to the aforesaid plots that at one time contending that some of the plots were belonging to one Anjanrao and later contending that the same belong to appellant.
16. Shri M.V. Deshpande, the learned Counsel for the respondent-committee, also pointed out from the evidence on record, especially the map annexed to the sale deed as well as the Municipal lay out plan clearly indicating that these plots fall within the large trace of land owned by the committee. It is pertinent to note that one of the earliest correspondence namely the reply dated 25-4-1972 written by the appellant to the committee. He has not disputed at all that the land does not form part of land belonging to the committee. In fact, in the said letter, he has, in unequivocal terms, stated that Nanded Municipal Council has transferred the market area to the committee on no profit no loss basis and that the possession of the appellant can not become that of trespasser and at the most the committee can claim lease rent. So all these factors clearly indicate that the stand of the appellant at the earlier stage show that the disputed plots were within the aforesaid 47 Acres and 15 Gunthas.
17. Shri Nawander contended that the lower Appellate Court had erred in relying on the finding in the earlier suit that the appellant was a trespasser inasmuch as the earlier suit was dismissed and as such the appellant could not have filed any appeal against the same. Therefore, even the finding against the appellant in the said suit cannot operate as res-judicata and that finding cannot be binding on the appellant. In that behalf, the learned Counsel referred to a judgment in Tara Singh v. Shakuntala . In para 11, the learned judges of Rajasthan High Court have quoted with approval the view of the Privy Council in Midnapur Zamindari Co. Ltd. v. Naresh Narayan A.I.R. 1922 P.C. 241 as under :
"This opinion of their Lordships shows that a party in whose favour goes the ultimate result of the case is not bound by any finding adverse to him in that judgment and as such the party cannot go in appeal against that judgment."
18. Even ignoring the finding given in the earlier suit, the lower Appellate Court has, in clear terms, decided the point No. 2 namely whether the plaintiff has properly terminated tenancy of the defendant, in the affirmative, that is to say that the appellant's tenancy has been properly terminated by the committee and in view thereof, his status thereafter would automatically be that of a trespasser.
19. Shri Nawander, the learned Senior Counsel for the appellant, is right that the finding given in the earlier suit, wherein the appellant had succeeded and the suit filed by the committee was dismissed on the ground of want of title, can not be relied upon, but without relying upon the same, the lower Appellate Court has relied on other evidence, which clearly indicate that the disputed plots form part of the aforesaid 47 Acres and 15 Gunthas and also that the lease has been properly terminated and upon termination, the status of the appellant becomes that of a trespasser.
20. In the light of aforesaid facts and circumstances, and especially in the light of the parameters within which the High Court can interfere in the second appeal, I do not find any substantial question of law necessitating interference in this appeal. The second appeal is devoid of merits and same stands dismissed with no order as to costs.