Allahabad High Court

Smt. Sharda Devi vs Durga Prasad on 7 May, 2019

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 47								A.F.R.
 

 
Case :- SECOND APPEAL No. - 710 of 1992
 

 
Appellant :- Smt. Sharda Devi
 
Respondent :- Durga Prasad
 
Counsel for Appellant :- Janardan Sahai,M.K. Tripathi,V.K. Tripathi
 
Counsel for Respondent :- M.K. Gupta
 

 
Hon'ble J.J. Munir,J.

1. This is a plaintiffs' appeal from an appellate decree. It arises out of a suit for permanent prohibitory and mandatory injunction, that was instituted by the present appellants against the defendant-respondent, initially for a relief of permanent prohibitory injunction alone, to the effect that a decree be passed against the defendant forbearing him from interfering with the plaintiffs' possession over property shown in Schedule A to the plaint, or demolish the southern wall of that property or to fix a door opening into the plaintiffs' property. Pending suit, claiming a violation by the defendant of breaching the southern wall and opening a door onto the plaintiffs' land, relief by way of mandatory injunction was also claimed in the suit to the effect that the door newly opened and fixed to the northern wall of the suit property be ordered to be closed, and in the event of the defendant failing to comply with the decree, to cause the same to be done through process of Court at the cost of the defendant. Appropriate amendment incorporating these supervening events was applied for, granted and made to the plaint to support the added relief. This suit was was numbered on the file of the learned Munsif, Mahawan, Mathura as Original Suit no.202 of 1974.

2. The suit came up for determination before the learned 5th Additional Munsif, Mathura on 21.03.1989, who proceeded to decree the same with costs, both for the permanent prohibitory as well as mandatory injunctions, in terms of the reliefs claimed. The defendant-respondent filed an appeal to the Court of the District Judge, Mathura, that came to be numbered as Civil Appeal no.35 of 1989. The said appeal came up for determination before the learned Ist Additional District Judge, Mathura on 17.12.1991, who allowed the appeal with costs throughout, setting aside the decree of the Trial Court and dismissed the appellant's suit. The plaintiffs-appellants shall hereinafter be referred to as the 'plaintiffs' whereas defendant-respondent would be referred to as the 'defendant'.

3. Aggrieved, the second appeal has been filed by the plaintiffs. It was admitted to hearing on 17.11.1992 on the following substantial question of law:

"Whether the Court of first appeal has misled itself in not recording any finding on question of possession of the plaintiff, which was challenged in the grounds of appeal?

4. This appeal has been heard on the aforesaid substantial question of law ex parte, since no one has appeared on behalf of the defendant.

5. Heard Sri M.K. Tripathi, learned counsel appearing on behalf of the plaintiffs and perused the records summoned from the courts below.

6. The Trial Court framed eight issues, that read as follows (translated into English from Hindi vernacular):

(1) Whether the plaintiffs are owners of property in dispute described in Schedule ''A' to the plaint?

(2) Whether the defendant has become owner of the suit property on the basis of adverse possession?

(3) Whether the suit is undervalued and court fee paid is insufficient?

(4) Whether the suit is barred by the principles of estoppel and acquiescence?

(5) Whether the suit property had vested in Kirori Lal, the predecessor in title of the defendant, under Section 9 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act?

(6) To what relief are the plaintiffs entitled?

(7) Whether the defendant has breached the southern wall of his house and affixed a new door there pending suit? If so, its effect.

(8) Whether the plaintiffs are in possession of the suit property?

7. The Trial Court decided issue no.3 in favour of the plaintiffs, that is related to valuation of the suit property and court fee. Again, issue no.1 regarding ownership of the suit property was answered in favour of the plaintiffs by the Trial Court. Issues nos.2 and 8 were taken up together by the Trial Court, and also decided in favour of the plaintiffs holding their possession over the suit property proved and defendant's adverse possession claimed, not proved. Issue no.4 regarding suit being barred by estoppel and acquiescence was decided in favour of the plaintiffs, and so was issue no.5 regarding the defendant's predecessor, Kirori Lal being vested with title to the suit property under Section 9 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. Issue no.7 concerning the causing of a breach in the southern wall of his house by the defendant and affixation of a new door there, pending suit was also decided in favour of the plaintiffs.

8. Learned counsel for the plaintiffs has submitted that the finding recorded by the lower Appellate Court as to possession of the plaintiffs, that has been held in their favour by the Trial Court, has not been specifically reversed by the lower Appellate Court. It is argued that the lower Appellate Court while writing a judgment of reversal was particularly obliged to strictly adhere to the mandatory requirements of Order XLI Rule 31 CPC, where points for determination are required to be framed by the lower Appellate Court, with its decision thereon, supported by reasons for the decision, and in case of reversal or variation of the decree of the First Court, the relief to which the plaintiffs are entitled. No doubt, the law in regard to adherence by a Court of Appeal to the provisions of Order XLI Rule 31 CPC is well settled, but at the same time it is equally well established that mere omission to frame points for determination does not vitiate the judgment in appeal. All that is required is that the findings of the lower Appellate Court, should not be vague and indeterminate. The judgment must reflect application of mind by the first Appellate Court to the evidence on record. It must show application of mind to all the evidence bearing on all questions of fact and law. In addition, in a case where the lower Appellate Court writes a judgment of reversal, it must record in explicit terms its opinion and reasoning of entering disagreement with the Trial Court. It must clearly show where and how the Trial Court has proceeded in error. If all that is done, the mere fact that points of determination are not framed, or an issue-wise finding entered in the same manner as the Trial Court has done, would not render the appellate judgment bad.

9. In this connection, the law on the point has been summarized, thus, by the Supreme Court in B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, where in paragraph 4 of the report it is held:

"4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The 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. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : JT (2001) 2 SCC 407] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] , SCC p. 758, para 5.)"

10. Again, the Supreme Court in Laliteshwar Prasad Singh v. S.P. Srivastava, (2017) 2 SCC 415, has expounded the legal position as to the requirement of adhering to the provisions of Order XLI Rule 31 CPC by the Appellate Court thus:

"12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order 41 Rule 31 CPC reads as under:

"31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein."

It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties.

13. An appellate court is the final court of facts. The judgment of the appellate court must, therefore, reflect the court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of the first appellate court, in Vinod Kumar v. Gangadhar [Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521] , it was held as under: (SCC pp. 394-96, paras 12-15)

"12. In Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , this Court held as under: (SCC pp. 188-89, para 15)

''15. ... The appellate court has jurisdiction to reverse or affirm the findings of the 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 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.'

The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

13. In H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] , this Court stated as under: (SCC p. 244, para 3)

''3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.'

14. Again in Jagannath v. Arulappa [Jagannath v. Arulappa, (2005) 12 SCC 303] , while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2)

''2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion.' .........."

11. In the present case, no doubt the lower Appellate Court has not adopted the approach of an issue-wise reversal of findings of the Trial Court, but it has clearly framed a point for determination, which has been expressed by the lower Appellate Court in the following words, in paragraph 14 of the impugned judgment:

"14. The only point for consideration in this appeal is as to whether the plaintiffs are the owners and in possession of the disputed piece of land. No other point has been raised in appeal before me."

12. It appears that at the hearing of the appeal, leaned counsel for parties addressed the lower Appellate Court on the aforesaid point, that took in its fold, findings of the Trial Court on issues nos.1, 2, 7 & 8. It does appear that the finding of the Trial Court in favour of the plaintiffs on issue no.5 has not been specifically reversed by the lower Appellate Court. This issue is to the effect: whether the disputed property had vested with the defendant's predecessor-in-title under Section 9 of the U.P. Z.A. & L.R. Act? It must be remarked here that the aforesaid issue is a defendant's issue, and the impact of a finding on this issue upon the decree passed in the suit, would only arise in case the plaintiffs are able to prove their title and possession, or at least a possessory title, in the face of the defendant's failure to prove his title. Even if the defendant with the finding of the Trial Court on issue no.5 remaining intact were to be held not to have proved his predecessor's title, and, a fortiori his title to the suit property on the basis of the sale deed executed by his predecessor, Kirori Lal, that would by itself not entitle the plaintiffs to a decree, unless the plaintiffs prove title or a possessory title superior to that of the defendant.

13. The Trial Court while recording its finding on issue no.1 that relates to ownership of the suit property has rightly pointed out that the dispute is about a portion of land admeasuring 30' x 28', situate at the southern boundary of the defendant's property, that would lie to the north of the plaintiffs' property. The way the Trial Court has broadly evaluated the evidence regarding title of parties, both founded on sale deeds, there does not seem to be much quarrel about the facts that the defendant claims title on the basis of a registered sale deed dated 22.12.1958 executed jointly in favour of Durga Prasad and his brother, Har Prasad by its previous recorded owner, one Kirori Lal, who sold it along with two houses mentioned there, one in good repair and the other, dilapidated. As against this, it has been held by the Trial Court that the plaintiffs' claim is based on a registered sale deed dated 06.09.1984, executed by the sons and heirs of the last recorded owner, Keshav Deo. The Trial Court has held further that the southern boundary of the property subject matter of the sale deed dated 22.12.1958, executed by Kirori Lal in favour of the defendant, Durga Prasad and his brother Har Prasad, mentions the house of Madan Lal and open land of Keshav Deo. The successors-in-title of Keshav Deo have transferred their property to the plaintiffs. The Trial Court has noticed that it is the land on the southern boundary of the defendant's property, with dimensions 30'x28', which is the suit property.

14. The Trial Court has reasoned that through a subsequent registered sale deed dated 11.09.1970 on account of his financial requirement, the defendant sold his house located on the north end of his property in favour of Lalman son of Babu Lal; on the southern boundary of this property, there was a wall with a door to it, which the parties agreed to close by brick work and did so. Lateron, Lalman aforesaid executed a sale deed in favour of Chandrapal, a brother-in-law of the defendant, Durga Prasad, who in turn gifted the entire property earlier sold by Durga Prasad to Lalman, to the defendant, Durga Prasad's wife. This case of the defendant has not been believed by the Trial Court on the basis that the defendant, Durga Prasad had a half share in the property purchased from Kirori Lal along with his brother, Har Prasad, and once he sold it to Lalman, he had nothing left back with him on the southern end, that could account for the property in dispute. The Trial Court has further relied upon a map submitted by the learned counsel for the defendant, which was accepted on record and marked as paper no.36Ka, that both parties have accepted, and before both Courts. It has been recorded for a fact by the Trial Court that there is no quarrel over the issue that whatever property was purchased by the defendant in the year 1958 from Kirori Lal, to the south of it was open land of Keshav Deo. He has further recorded a finding that heirs and legal representatives of Keshav Deo, who have sold that property to the plaintiffs through a registered sale deed, have passed on a valid title.

15. The Trial Court has further reasoned and held that so far as the question that the land admeasuring 30'x28' towards south of the defendant's property is wrongfully claimed by the plaintiffs, by including it in a sale deed is belied by the two sale deeds in 1970 and 1971 when the defendant's property was sold to Lalman, and lateron re-conveyed in the year 1971 to his brother-in-law, papers nos.28Ga and 29Ka. It is noticed by the Trial Court that in the sale deed executed by the defendant, Durga Prasad in favour of Lalman, the southern boundary is mentioned as "दक्षिण मकान केशव देव व मेरी खाली जगह". Again, in sale deed executed by Lalman in favour of Chandrapal (the defendant's brother-in-law), the southern boundary is mentioned as "दक्षिण मकान केशव देव व खाली जगह दुर्गा प्रसाद". About this, the Trial Court remarked that these boundaries described in the two sale deeds are belied by the map, 36Ka(Aa) drawn and filed by the defendant's counsel during the hearing of the suit. The Trial Court has reasoned in this regard that there was no occasion to mention in the sale deed executed by Durga Prasad in favour of Lalman, on the southern boundary, the house of Keshav Deo, once in the map drawn and filed by the learned counsel for the defendant, on the southern boundary, the house of Keshav Deo has not all been shown. It has been further remarked that if there was any force in the contention of the defendant, the map would have clearly shown on the southern boundary, "To the south open land of mine and thereafter house of Keshav Deo (translated into English from Hindi vernacular)". Here, it must be remarked that a map about the site, drawn up by a counsel during the course of hearing of the suit, can never be considered as documentary evidence. It is, at best, a pictorial depiction of the site by the learned counsel in aid of argument, even if both parties or their counsel, accept it to be a correct depiction. On the foundation of a sketch map put forward during the course of argument, boundaries shown in the two registered sale deed of 1970 and 1971 could not have been held belied, those two sale deeds being registered conveyances, and part of documentary evidence filed by the defendant. It must, therefore, be held that the Trial Court took into consideration irrelevant evidence when it looked into a map drawn up by the counsel, marked paper no.36Ka(Aa), and on its basis, rejected the relevant boundaries indicated in the two registered sale deeds, papers nos.28Ga and 29Ka.

16. The Trial Court has further reasoned before concluding its findings on issue no.1 that in case the suit property (comprised of land 30'x28') were included in the plaintiffs' land, the sale deed of 1958 executed in favour of the defendant, bearing paper no.9Ga, would show on the western boundary along with house of Ghurri, houses of Madan Lal and Girdhari Lal, inasmuch as, in the sale deed of 1970 executed by the defendant, paper no.28Ga in favour of Lalman, on the southern boundary, the house off Girdhari Lal is also mentioned. It has been further reasoned by the Trial Court that from a perusal of paper no.29Ka, the sale deed of 1971 by Lalman (in favour of defendant's brother-in-law, Chandrapal), on the southern boundary, house of Keshav Deo would never have been mentioned, in case the defendant was owner of any land, towards south of the house, purchased by him.

17. The Trial Court has concluded his finding on the issue, with the remark that from the evidence of both parties, it is established that the defendant does not own any land that is part of the suit property. It was further held that the suit property, including that of the plot with dimensions 30'x28', to which it has been narrowed down, is in the ownership of the plaintiffs.

18. The issues nos.2 and 8 that are about the defendant being in adverse possession of the suit property, and other being whether the plaintiffs are in possession of the suit property, the Trial Court on an analysis of evidence on record held the plaintiffs to be in lawful possession of the suit property, whereas the defendant's claim based on adverse possession has been discarded, primarily on the reasoning that the suit property, being claimed by the defendant to be held on the basis of a valid title derived through a sale deed, there could not be a case of adverse possession over his own property.

19. The lower Appellate Court has taken into consideration the four sale deeds on record, one being the sale deed dated 22.12.1958, Paper no.9-C, on the basis of which the defendant claims. The other sale deed taken into consideration is Paper no.28Ka dated 11.08.1970, executed by the defendant, Durga Prasad in favour of Lalman; the third sale deed is one dated 09.08.1971 executed by Lalman in favour of Chandrapal, the wife's brother of the defendant, and the fourth is the plaintiffs' sale deed bearing Paper no.71Ka, dated 06.09.1984, executed by Tej Prakash, Trilok Chanda and Jai Prakash, all sons of the late Keshav Deo. Oral evidence of PW-1, Hari Shankar, PW-2, Tej Prakash, PW-3, Joginder Prasad, PW-4, Atar Singh and PW-5, Om Prakash, the Court Amin, who has put in a report of spot inspection, have all been evaluated by the lower Appellate Court.

20. The lower Appellate Court has recorded detailed findings, both about the ownership and possession of the plaintiffs and the defendant, vis-à-vis the suit property. It has been remarked that at the time, Kirori Lal executed the sale deed of 1958 in favour of the defendant, the property detailed in that sale deed is one pucca built house and another in a dilapidated condition. It has been remarked that with the said description of the property sold to the defendant, there was no occasion to mention open land towards the south, and, therefore, on the south boundaries of the property sold to the defendant, there is mention of house of Madan Lal and open land of Keshav Deo. It has been further held that in the sale deed executed by Durga Prasad in favour of Lalman on 11.08.1970, the southern boundary shows the house of Keshav Deo and open land of the executant. Here, the lower Appellate Court has specifically dealt with the reasoning of the Trial Court about the issue and remarked, "The observation of the learned trial court that had there been any open land of defendant towards south of his property, first open land of the executant should have been mentioned and thereafter house of Keshav Deo should have come. In view of the original sale deed executed by Kirori Lal in favour of Durga Prasad and other evidence on record, no adverse inference could be drawn against the case of the defendant. In the sale deed executed by Lalman in favour of Chandra Pal on 9-8-71, there is mention house of Keshav Deo and open land of Durga Prasad towards south of the northern Pucca house of defendant. These two sale deeds were executed in August 1970 and August 1971 when there was no dispute between the parties. The suit was filed in September 1984 after about 14 years from the said deeds. This is a very strong circumstance which favours the defendant and any loose writing of the deed-writer would not have any adverse effect upon the case of the defendant. The observation of the learned trial court that Lalman could not give house as a gift to the wife of the defendant without any proper registration would also not have any adverse effect upon the case of the defendant. This is a matter between the person, who executes the sale deed and the vendee. Third party can't derive any advantage of any such fact." After discussing the oral evidence of Tej Prakash, PW-2, and Atar Singh, PW-4, there is a further finding in reversal of the Trial Court, recorded by the lower Appellate Court, that reads to the following effect:

"There is no mention in the sale deed of the plaintiffs that there existed thatch, fodder-cutting-machine, Burji, Ladavni etc. at the time the sale deed was executed in their favour and nor there is any such mention that the sale deed was executed in their favour with all these things. The observation of the learned trial court that defendant, Durga Prasad, had executed the sale deed in respect of his entire property in favour of Lalman, is not correct. There is the ample evidence of defendant, which go to show that he had executed the sale deed in favour of Lalman only in respect of his northern Pucca house, and he himself along with his family stayed on the disputed land. The findings of the learned trial court on this point appears to be based on surmises and conjectures."

21. The findings of the lower Appellate Court are based on a comparison of boundaries in meticulous detail vis-à-vis the four sale deeds, the Commissioner's map, Paper no.45-C, along with Commissioner's Report dated 03.01.1985, all analyzed in minute detail, including oral evidence on both sides, to reach a conclusion not only about title, but also possession in favour of the defendant. The finding about possession of the defendant is recorded as an inference, drawn clearly from the Report of the Advocate Commissioner, in conjunction with other evidence. This Report had been discarded by the Trial Court, which for good reason assigned, the lower Appellate Court has reversed as an incorrect finding. There is a particular remark by the lower Appellate Court on an analysis of the sale deed executed by the defendant and the oral evidence that what he had sold to Lalman, was not the entire property. It has been held by the lower Appellate Court that the Trial Court is not correct in saying that the entire property owned by the defendant was sold to Lalman. What was sold to Lalman was the northern pucca house and the defendant along with his family had stayed on the disputed land. Thus, there is a categorical finding by the lower Appellate Court about the defendant's possession, besides title, vis-à-vis, the suit property.

22. This Court finds that the lower Appellate Court has minutely considered all relevant evidence and recorded its conclusions reversing all relevant findings of the Trial Court, necessary to a disposition of the suit. There is no perversity about the reasoning adopted by the lower Appellate Court to find for the defendant in reversal of the Trial Court. The lower Appellate Court is the last Court of fact. It is well-nigh settled that merely because two views of the evidence are possible, it is not for this Court to substitute its view of the evidence for the one taken by the last Court of fact i.e. the lower Appellate Court; even if this Court between a possible choice would prefer that of the Trial Court's to that of the lower Appellate Court. This Court can interfere only if the findings of the first Appellate Court in reversal of the Trial Court, or may be in affirmation are perverse. What perversity would mean in law, is well reputed.

23. The most acceptable and workable principle to hold a view to be perverse is that the finding to be classed as such, is one which no reasonable person under the circumstances, in which the Court below was placed, could ever have recorded on the evidence before it. In this regard, the decision of the Supreme Court in Kulwant Kaur and others vs. Gurdial Singh Mann (dead) by LRs and others, (2001) 4 SCC 262, lays down in paragraph 34 of the report thus:

"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:

"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

24. As found by this Court during the course of this judgment, the findings of the lower Appellate Court have not only dealt with the issues involved in sufficient detail for a disposition of the suit, but has specifically reversed the Trial Court's findings. The Court has come to a conclusion based on relevant evidence that the defendant is owner in possession of the suit property. That conclusion is based on a plausible view of the evidence, backed by good reasons. The substantial question of law framed in this appeal is answered in the aforesaid manner and in favour of the defendant.