Gujarat High Court

Salimkhan Yasinkhan Pathan vs Janumiya Nazirmiya Sindhi on 14 February, 2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SECOND APPEAL NO. 576 of 2022

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      SALIMKHAN YASINKHAN PATHAN & ORS.SALIMKHAN YASINKHAN
                             PATHAN
                               Versus
     JANUMIYA NAZIRMIYA SINDHIJANUMIYA NAZIRMIYA SINDHI & ORS.
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Appearance:
MR AB GATESHANIYA(3766) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1,10,3,4
MR HET N SHAH(11211) for the Respondent(s) No. 11,2,5,6,7,8,9
MR SP MAJMUDAR(3456) for the Respondent(s) No. 11,2,5,6,7,8,9
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 14/02/2024
                                      ORAL ORDER

1. The present Second Appeal is filed under Section

100 of the Civil Procedure Code, 1908 (hereinafter

referred to as "the Code") by the present appellants -

original defendants by challenging the impugned

judgment and decree dated 27.09.2022 passed in Regular

Civil Appeal No.58 of 2011 by the learned Principal

District Judge, Banaskantha at Palanpur, whereby the

learned Judge has allowed the appeal preferred by the

present respondents - original plaintiffs by setting aside

the judgment dated 21.10.2011 and decree dated

11.11.2021 passed in Regular Civil Suit No.79 of 2005 by th the learned 5 Addl. Senior Civl Judge, Palanpur.

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2. Brief facts of the case as per the case of the

present appellants in this appeal are as such that one

Nazirmiya Khanumiya (Deceased) had filed Civil suit

against the father of the present appellants namely

Yasinkhan Mohhammad Sherkhan Pathan in the Court

of learned Principal Civil Judge (S.D.), at Palanpur vide

Regular Civil Suit No. 79/2005 for possession and mense

profit of the first floor of the premises i.e. House

situated at Railway Station area bearing City Survey No.

11139 Municipality to 1141, sheet No. 2/1576 to No.26-C,

2/1579 and 2/1581 at Palanpur. It is further the case of

the appellants in this appeal that in the suit proceedings

the defendants had appeared and filed written statement and thereafter. the issues were framed vide Exh. 11 and

the testimony of the plaintiff as well his witness as was

recorded and thereafter, the testimony of the defendant

was also recorded. It is further the case of the

appellants in this appeal that pending above suit the

plaintiff namely Nazirmiya Khanumiya was died and,

therefore, the legal heirs of plaintiff (present respondents)

were brought on record. The suit was finally heard and

consequently, it is reject with costs vide judgment &

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decree dated 21/10/2011 & 11/11/2011. Being dissatisfied

with the judgment dated 21/10/2011 and decree dated

11/11/2011 passed by 5th Additional Senior Civil Judge,

Palanpur in Regular Civil Suit No. 79/2005, the

respondents had filed an appeal i.e. Regular Civil Appeal

No.58/2011 before the learned lower Appellate Court. It

is further the case of the appellants in this appeal that

pending the said appeal, the original defendant namely

Yasinkhan Mahammad Sherkhan Pathan was died and,

therefore, the heirs of deceased (present appellants) were

brought on record. Thereafter, the appeal was finally

heard, and the learned District Judge was pleased to

allow the said appeal by setting aside the judgment and

decree passed by learned 5th Additional Senior Civil Judge, Palanpur, in Regular Civil Suit No.79/2005.

Hence, the present appeal is preferred.

3. The suggested substantial questions of law as

framed in paragraph 4 of memo of present appeal are as

follows:

 (a) Whether the appellate Court has committed

error of law in framing the issue under Order 41 Rule

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31 of the Code of Civil Procedure, 1908?

 (b) Whether the learned Appellate Court has

committed an error of law in reversing the judgment and

decree passed by the learned 5th Additional senior civil

Judge, Palanpur?

 (c) Whether the learned Appellate Court has

committed error of law in framing issue No.2 and 3 and

by shifting the burden of proof upon the defendants?

 (d) Whether the learned Appellate Court has

committed an error of law in holding that the cause of

action was continued and the suit is within time limit?

 (e) Whether the learned Appellate Court has

committed an error of law in setting aside the judgment

and decree passed by learned civil court, by holding that

the defendant has failed to prove that he is a statutory

tenant and his possession is legal and permissible one?

 (f) Whether the learned Appellate Court has

committed an error of law in holding that the defendant

is not tenant, but his possession is unauthorized, while

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the plaintiff himself has stated in cross- examination

that tenants were residing in disputed property when he

had purchased the said property?

 (g) Whether the appellate Court can decide an

appeal without examining the contentions based on facts

and law?

 (h) Whether the appellate Court has committed

error of law in interpreting the evidence on record and

in setting aside the judgment and decree passed by

learned trial Court?

4. Heard Mr. A.B. Gateshaniya, the learned counsel for

the appellants and Mr. Het Shah, the learned advocate with Mr. S.P. Majmudar, the learned advocate for the

respondents.

5. The learned counsel for the appellants the impugned

judgment and decree passed by the learned Principal

District Judge, Palanpur is against the facts of the case

and contrary to law and the same is resulted into

miscarriage of justice, which is passed without framing

proper issues in view of the pleadings of the parties.

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Furthermore, he has submitted that the impugned

judgment and decree is without framing appropriate

issues/point under Order 41 Rule 31 of the Code.

Furthermore, he has submitted that the learned

Appellate Court has committed error of law in framing

the issue Nos.2 and 3, and by imposing the burden of

proof to defendant. Furthermore, he has submitted that

the learned Principal District Judge has given undue

weightage of the evidence of the plaintiff and has failed

to appreciate the evidence of the defendant and has

wrongfully reversed the findings arrived at by the

learned trial court. Furthermore, he has submitted that

the learned Appellate court has committed an error in

holding that the cause of action was continued and the suit is within time limit. Furthermore, he has submitted

that the learned Appellate Court has committed gross

error in setting aside the judgment by holding that the

defendant has failed to prove that he is a statutory

tenant and his possession is legal and permissible one,

while in the cross examination he had stated that, when

the property was purchased, the tenants were residing in

the disputed property. Furthermore, he has submitted

that the learned Appellate Court has committed the error

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in passing the judgment and order for eviction while the

plaintiff himself has stated in cross-examination that

tenants were resided in disputed property when he had

purchased the said property. Furthermore, he has

submitted that the defendant was possessing the property

in question since 1986 and he had been given the

property on rent by original owner Kantilal Gaurishankar

Gupta and the said Kantilal Gaurishankar Gupta had

sold the property to one Mukhatiyar Nanamiya Sindhi in

1988 and thereafter, the said property was purchased by

plaintiff in the year 1998 vide registered sale deed

No.3165 in December, 1998. Furthermore, he has

submitted that the defendant was in lawful and peaceful

possession of the suit premises from 1986 and he was the tenant of Kantilal Gaurishankar Gupta and the

defendant was not a tress-passer and also he had not

become the unauthorized occupant. Furthermore, he has

submitted that the learned trial court had rightly held

the defendant to be the tenant of suit premises.

However, without any justifiable reason and without

considering the facts and circumstances of the case and

also without considering evidence the record, the learned

Principal District Judge has wrongfully reversed the

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findings of the facts arrived at by the learned Civil

Court and wrongfully passed impugned judgment and

decree which cannot be sustained in the eyes of law.

Furthermore, he has submitted that the learned civil

court had framed various issues and the learned Civil

Judge had properly discussed all the issues and after

thoughtful consideration, the learned Civil Judge had

rendered the decision in favour of defendant. However,

the learned Principal District Judge without assigning

appropriate reasons, has wrongfully passed the judgment

and decree in favour of the plaintiffs. Furthermore, he

has submitted that the plaintiff had suppressed the

material facts and had not produced relevant documents

in the suit proceedings, which was in his possession i.e. sale deed No. 3432 dated 02/12/1998, and therefore the

learned Trial court had rightly drawn the adverse

inference against the plaintiff. Furthermore, he has

submitted that the learned Civil Court had rightly held

that it was not proved that the disputed property is in

dilapidated condition. Furthermore, he has submitted

that the learned Civil Court had given sound reasons by

appreciating the facts and evidence on record and by

considering the settled proposition of law and had rightly

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rejected the suit preferred by the plaintiff. However, the

learned First Appellate Court has wrongfully interfered

in the judgment and decree passed by the learned Trial

Court. Furthermore, he has submitted that the learned

Principal District Judge ought not to have interfered

with the judgment and decree passed by the learned 5th

Senior Civil judge, Palanpur, as no any error is found in

the judgment of the learned trial court. Therefore, he

has prayed to admit the present Second Appeal and

thereafter, allow the same by quashing and setting aside

the impugned judgment.

6. Per contra, the learned advocate for the respondents

has submitted that the appellants have filed the appeal by being aggrieved by the judgment passed by the

learned lower Appellate Court. He has supported the

judgments given by the learned lower Appellate Court,

and has submitted that the learned lower Appellate

Court has re-appreciate the entire evidence and also

followed the provisions of Order 41 Rule 31 of the Code

by substantially complying with the provisions of law and

also re-appreciating the evidence in totality. There is no

perversity or illegality in the judgment of the learned

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lower Appellate Court. On the contrary, the learned trial

court has committed errors in giving the findings, which

is rightly corrected by the learned lower Appellate Court

by exercising the power under Order 41 read with

Section 96 of the Code. He has submitted that no

substantial question is pointed out by the present

appellants and, therefore, in view of many judgments of

the Hon'ble Apex Court as well as this Court, this Court

should be very slow in interfering with the judgment of

the learned lower Appellate Court by exercising the

powers under Section 100 of the Code and, therefore, he

has prayed to dismiss the present Second Appeal.

7.1. I have considered the rival submissions made at the bar by the respective parties. I have gone through the

impugned judgments passed by both the courts below. It

is evident that the lower appellate court has considered

the various submissions made at the bar and has framed

the points of determination, as under:

 (1) Whether it is proved that plaintiff is owner of

the suit property?

 (2) Whether it is proved that defendant is in lawful

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possession of first floor of the suit property as a tenant?

 (3) Whether defendants proves that plaintiffs have

filed the false litigation against the defendants?

 (4) Whether the Ld. Trial Judge has committed any

error?

 (5) What order ?

My answers to the aforesaid issues are under for the

reasons followed. as

 (1) In affirmative.

    (2) In negative.

    (3) In negative.
    (4) In affirmative.

    (5) As per final order.

7.2. It transpires that the learned lower Appellate Court

has considered the various submissions made at the bar

by the appellants, also perused the materials available

on the record by way of pleadings of the parties, oral as

well as documentary evidence on record. The Court has

also kept everything in mind that the Appellate Court

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has the same power as the original court, but the court

has to exercise such powers with care, caution and

circumspections, and with a finding of fact has been

erred by the trial by mainly appreciating the oral

evidence, it should not be lightly disturbed, unless the

approach of the trial court in appreciating of evidence is

materially erroneous, contrary to well settled and

established principles, or perverse. The lower Appellate

Court has meticulously re-evaluated the evidence on

record, taking into account the testimony of the plaintiff,

who was examined himself at Exh.25. Additionally,

another witness, Ramjibhai Kesrabhai Sengal, Surveyor of

the Municipality, examined at Exh.47 and presented

documentary evidence at Exh.26 to 32 and 48 to 51.

Moreover, the defendants also presented their evidence

below Exh.62, with documentary evidence at Exh.59 to

61. The lower Appellate Court has considered the trial

court's observation regarding alleged connivance between

the municipality and the plaintiff. However, upon

examination of the available evidence, the lower

Appellate Court found no substantiated material to

support the trial court's conclusion that there is some

connivance between the municipality and the plaintiff.

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Municipality is a statutory body and its duty is to take

preventive measures for the public safety and

municipality may take the appropriate steps under the

provisions of law and in the present case, the

municipality has not only issued the notice to demolish

the suit property, but has also issued notice to demolish

the other property also. The learned lower Appellate

Court has also appreciated the fact that the defendant

has set up his defence that the suit is time barred and

defendant was paying Rs.100/- p.m. to Kantilal

Gaurishankar Gupta, whose name came to be entered in

City Survey Record in the year 1983 and in the year

1986, the defendant has taken the suit property on

monthly rent of Rs.100/- from Kantilal Gaurishankar Gupta and he was regularly paying the rent to Kantilal

Gaurishankar Gupta but due to good relation, Kantialal

Gaurishankar Gupta did not issue any receipt and he

has not raised any objection for that at any point of

time.

7.3. The learned lower Appellate Court has also observed

that on 02.12.1988, Shree Kantilal Gaurishankar Gupta

had sold the said property by way of registered sale

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deed to Maqsoodmiya Nazirmiya and he became a tenant

of Mahammadmiya Sindhi since 1988 and defendant was

paying the rent of Rs.100/- per month to Mahammadmiya

Sindhi, but due to good relation, he has not received any

receipt of rent from Mahammadmiya Nazirmiya then

Mahammadmiya Nazirmiya had further sold the same

property by way of registered sale deed to the present

plaintiff and defendant was paying rent of Rs.100/- due

per month to present plaintiff. Also due to good relation,

he has not received any receipt from the plaintiff from

01.12.1999 to 31.12.2000, though he was regularly paying

rent to the plaintiff, and therefore, it is his case that

thus the defendant is a tenant of plaintiff, but the

defendant has failed to produce any documentary evidence in support of his defence neither the said fact,

and the defendant has not produced any single document

or proof like rent agreement, rent receipt, as well as

even defendant has not examined any witnesses, who

were predecessor-in-title of plaintiff. Therefore, the trial

court has erred in coming to the conclusion that the

defendant is a tenant in the suit property. The sale deed

is heavily relied by the learned advocate for the

appellant which is produced below Exh.30. In para 3 of

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the sale deed, it is clearly stated that, at the ground

floor of the suit property, tenants are there but on the

first floor of the suit property, unauthorized possession of

property is there and, therefore, prima facie, it appears

that the possession of the first floor is unauthorized

since inception though in absence of any documentary

evidence, the learned trial court has stated that due to

good relation, party chose not to accept the receipt and

landlord might not issue any receipt also, and when in

fact, the specific defence taken by the defendant is that

he is a tenant then said fact is also required to be

proved by defendant, and the trial court has wrongly

placed onus on plaintiff to prove the said fact. To this

effect, the learned lower Appellate Court has placed reliance on the judgment of the Hon'ble Apex Court in

the case of Rangamal Vs. Kuppuswamy and Others

reported in AIR 2011 SC 2344, whereby the Hon'ble

Apex Court has considered the provisions of Section 101

of Indian Evidence Act that wherein the burden of proof

clearly lays down that whosoever desirous in the Court

to give judgment on the point that any legal right or

law in view of existing of facts which he asserts, must

prove that those facts are existing when a person is

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about to prove the existence of any fact. Therefore, the

burden of proof lies on the person, who asserts such fact

or take such contention. Therefore, the lower Appellate

Court found that the Evidence Act has clearly laid down

that the burden of proving of fact always lies upon the

person, and in the present cae, the defendant has failed

to discharge the said burden and the trial judge has

committed error in holding that plaintiff has failed to

prove that the tenancy is a tenant wrongly answered in

issue no.6 in favour of the defendant, and that by

holding that the defendants are tenants. The lower

Appellate Court also considered that the defendant has

taken the defence with a view to geting the possession

of the suit property. As per the say of the defendant, the plaintiff has concocted the story of dilapidated

condition of house as the plaintiff was intended to raise

the rent up to Rs.500/-, but the defendant denied to pay

the same amount of the rent hence, the said story is

cooked up by plaintiff. The learned Lower Appellate

Court has considered this aspect by finding that

assuming for the moment that defendant is a tenant of

plaintiff and rent is sought to be increased by the

plaintiff then in that circumstances from the date of the

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such demand of increase of rent, the defendant ought to

have raised an objection and has to file the proceedings

under Section-11 of the Rent Control Act for the fixing

of the standard rent. The defendant has not initiated

such proceedings against the plaintiff, and more

particularly, when the defendant has failed to produce

any iota of evidence on record that he has paid the rent

to plaintiff regularly and due to good relation, the

plaintiff was not issuing any receipt to the defendant,

but no proceeding in this regard or no objection has

been raised at any point of time by the defendant, until

the plaintiff has filed the present suit for recovery of the

possession and, therefore, the trial court has also

committed error in holding that the defendant is tenant and the court has protected his possession though no

such evidence is produced by the defendant in support of

his case. The defendant has failed to examine Mr.

Kantilal Gupta and has not produced any evidence

regarding his say that he was a tenant of property in

question of Mr. Kantilal Gupta. His name ought to have

been mentioned as an occupier, as per Section 105(1)

and 113 of The Municipal Act, and while preparing

assessment list, the name of owner the and occupier is

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required to be inserted in the list on the record of

municipality. In the present case, no any evidence in

regards to paying of tax is produced on record by the

defendant.

7.4. It also transpires that the learned lower Appellate

Court has also considered the aspect of unauthorized

occupation of the suit property of the defendant and the

defendant has failed to show that under which capacity

he is having authority to occupy the property for having

any privilege under certain terms and conditions and

that too, without paying any rent how can he occupy

such property? It also transpires that the learned lower

Appellate Court has also dealt with the aspect regarding

the adverse possession, which is contended by the defendant. But the defendant has failed to prove that he

is not an unauthorized occupation though he has

contended so and at the same point of time, he has also

contended that he has a right to have possession of the

suit property as by way of adverse possession, he became

an owner, but the said fact is also not proved as

plaintiff to become owner of suit property by way of

registered sale deed in December, 1998 and then issued

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the notice to defendant to vacate the property and then

has initiated the proceedings.

7.5. It also transpires that the learned lower Appellate

Court has referred to the judgment of the Hon'ble

Supreme Court in the case of M. Durai Vs. Mutthu

reported in 2007 3 SCC 114, wherein a person who

claims his title on the adverse possession must show by

clear and unequivocal evidence, that why his title was

huddled to the real owner and amounted to the penalty

of his title to the property claimed. The learned lower

Appellate Court has also referred to the principle "NEC

CLAIM, NEC PRECRIO" and observed that the

possession required must be adequate in continuity and

in extent to show that its possession adverse to the pleader and for that under Article 65 of Limitation, the

period of limitation is prescribed for 12 years. On that

account also, the trial judge has committed an error that

the suit, filed by plaintiff is time barred, more

particularly, in the present case, plaintiff has not sought

any relief to recover all arrears of rent and cause

eviction of suit property is for dilapidated condition of

the property. In this regard, it is a continuous cause of

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action and suit is within limitation. The trial judge has

committed an error in holding that, the suit is time

barred under Article 65 and 67 of the Limitation Act.

The suit for possession of the immovable property is

prescribed the time limit under Article 66 of The

Limitation Act and even for the landlord to recover the

possession from the tenant, the prescribed the time limit

which is 12 years. Therefore, on the aspect of limitation

also, the trial court has committed an error in holding

that the suit is time barred.

7.6. The trial court has also committed error by

imposing the cost of Rs.3,000/- and it is observed that

suit is filed intentionally in collusion with the

municipality. The learned the Court has considered Section 35 and 35A of C.P.C. for imposing the cost and

when the plaintiff has, right to get evicted the defendant

from his property, and getting the vacant possession. For

that purpose, if he initiates any proceeding in this

regard, then how the Court can deprive of the plaintiff,

who is as a owner of the property to avail his legal

remedy available as a matter of right?

7.7. It also transpires that the learned lower Appellate

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Court has also referred to the judgment of the Hon'ble

Supreme Court in the case of 1996 (5) SCC 535 in the

case of Pratibhad Vs. T.B. Krishna, wherein, the Hon'ble

Apex Court has observed that "there is no law which

deprives the landlord of the beneficial enjoyment of his

property" and as owner of the property, plaintiff is

entitled to exercise his legitimate rights and to approach

the court and therefore, the trial court has also

committed error in awarding special cost and come to

the conclusion that the suit is filed with ulterior motive.

Hence, that finding is also incorrect.

7.8. Therefore, the learned lower Appellate Court has

considered the entire evidence by re-appreciating the

material in proper contest.

7.9. The scope of Section 100 of the Civil Procedure

Code is fruitful to refer, which is as under:

"Section 100.

100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case

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involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

STATE AMENDMENT Kerala.

In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:

(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question."

7.10. It is also required to refer the recent judgment

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of the Hon'ble Apex Court in the case of Gurbachan

Singh (Dead) Through Lrs. vs. Gurcharan Singh (Dead)

Through Lrs and Others reported in (2023) SCC OnLine

SC 875, more specifically, paragraph 7, 14 & 15 are

relevant, as under:

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala6( 2 Judge Bench), it was observed:

"27. In HeroVinoth v. Seshammal [HeroVinoth v. S eshammal, (2006) 5 SCC 545] , this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para

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21)

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (192728) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v.

Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the

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following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] :

(Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] , AIR p. 1318, para 5) '

5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'

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

14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned

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judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:

" (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

15. A Bench of three learned Judges, recently in Balasubramanian and Anr. v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgement rendered in Ramathal v. Maruthathal & Ors (twoJudge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with

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such findings."

7.11. I have gone through the reasons given by the

learned lower Appellate Court, which is in consonance

with provisions of law and material available on the

record. It is also derived from the pleading of the parties

and documentary as well as oral evidence produced and

adduced by the parties, that the trail court has

committed many error in its judgment of law as well as

fact, which is rightly corrected by the lower Appellate