JUDGMENT M.P. Mehrotra, J.
1. This second appeal has been filed by the plaintiff-appellants. The trial court decreed the suit against all the defendants. The lower appellate court, however, allowed the appeal filed by some of the defendants and modified the decree. The suit remained decreed against some of the defendants but was dismissed against the other defendants. Feeling aggrieved, the plaintiffs have now come up in the instant second appeal and their contention is that the decree passed by the lower appellate court should be set aside and that of the trial court be restored.
2. The brief facts are these:--
3. The plaintiffs alleged that in between the two lines shown by letters AB and MN in the site plan annexed to the plaint and to the north of K L and A G there had always been an open Sehan which was used by them and other residents of the Mohalla as a common Sehan for holding Panchayats, for the stay of the Barate and for feeding marriage parties and for various other purposes. It was further alleged that the defendant No. 8 Budh Sen had his house in the locality shown at figure X in the site plan The houses of Ram Nath Shukla and Budha Nai were situated at the places shown by letters Z and Y in the above site plan. It was alleged that Smt. Roop Rani, the defendant No. 1, who was the wife of Budh Sen's son Natthi Lal, had, without right, title or interest, made constructions on the portion of the common Sehan shown by letters A E F G. It was alleged that defendants Nos. 6 and 7 Lekh Raj and Smt. Chandrawati had also constructed a Kachcha Chabutra with a Pucca embankment at the place D H I J in the Central portion of the common Sehan. The other defendants Nos. 2, 3 and 4, Ghafoor, Munshi and Babu Khan, also illegally constructed a Kachcha wall at the place C F and thus included B C F E, the portion of the common Sehan inside their own house-It was alleged that the above unauthorised constructions had been made by the aforesaid defendants at the instigation of defendant No. 8 Budh Sen; hence he had also been impleaded in the suit. It was further alleged that defendant No. 5 Bal Kishan had obtained a sale deed from defendants Nos. 6 and 7, Lekh Raj and Smt. Chandrawati with respect to the Chabutra DHIJ and hence Bal Kishan also had been impleaded in the suit. It was suggested that on account of the above unauthorised constructions, there had been a great obstruction in the common Sehan and passage owing to which the plaintiffs-appellants were driven to file the suit in question in a representative capacity under Order 1, Rule 8, C.P.C. A decree for possession was claimed over the pieces of land marked by letters AEFG, BCFE and DHIJ after removal of the unauthorised constructions made by the defendants.
4. It will be seen that the eight defendants impleaded in the suit fell into three sets. The first set consisted of Smt. Roop Rani, the defendant No. 1, Bal Kishan, the defendant No. 5 and Budh Sen, defendant No. 8. They filed one joint written statement. The second set consisted of the defendants Nos. 2, 3 and 4, Ghafoor, Munshi and Babu Khan respectively. The third set consisted of the defendants Nos. 6 and 7, namely. Lekh Raj and Smt. Chandrawati. The first set mainly contested the suit. The second set supported the plaint allegations and the third set did not file any written statement and the suit proceeded ex parte agianst them. The first set denied that the disputed tend had been a part of any common Sehan. It was pleaded that Budh Sen, the defendant No. 8, was owner of his house No. 4741 and of the land lying in front of It towards its East. The suit was alleged to have been instigated by one Ram Nath who was the brother of Sidh Nath, plaintiff No. 1. Ram Nath was alleged to have lost in several litigations with Budh Sen and hence he bore animosity against Budh Sen and his family. The judgments of the earlier litigations were also said to be res judicata in the instant suit. The plea of estoppel was also taken.
5. The trial court framed the necessary issues and tried the suit. The plaintiffs' case was accepted and it was held that the defendants had made the alleged encroachments by raising constructions which were liable to be demolished. The suit was held to be maintainable and not barred by estoppel or res judicata. The trial court, therefore, decreed the suit against the defendants.
6. Feeling aggrieved, the first set of the defendants, namely. Smt. Roop Rani, Bal Kishan and Budh Sen, filed an appeal in the lower appellate court and the same was allowed. The lower appellate court held that the plaintiffs had failed to prove that the disputed pieces of land formed part of any common Sehan as alleged by them. It was further held that it was not proved that the Kotha which was sold by Ghafoor and others in favour of the defendant Smt. Roop Rani on 13th October, 1969 by sale deed Ext. A-8 lay 10 or 11 feet behind the disputed room A E F G. It was found that the disputed room A E F G was constructed at the place where originally stood the Kotha of Ghafoor and others which they sold in favour of Smt. Roop Rani. Thus the disputed room A E F G was not an encroachment as alleged by the plaintiffs. So far as the disputed Chabutra D H U was concerned, it was held that it was never purchased by Bal Kishan, the defendant No. 5, from defendants 6 and 7, Lekh Raj and Smt. Chandrawati, as the said vendors themselves had never acquired title to the same from the original owner Paltoo who had executed a sale deed on 29th March, 1946 in their favour. On a construction of the said document, it was held that the same did not cover the disputed chabutra and hence the puchasers Lekh Raj and Smt. Chandrawati did not acquire any title to the same and they themselves could not pass any in favour of Bal Kishan by the sale deed Ext. A-7 which they executed in favour of the latter on 27th February, 1962. Despite this finding, however, it was held that as the plaintiffs had failed to prove that the lands in dispute formed part of any common Sehan, therefore, they had no right to take exception to the unauthorised act of Bal Kishan in constructing the disputed Chabutra by encroaching on the land beneath the same. In the result, the lower appellate court held that the plaintiffs were not entitled to get back possession over the pieces of land marked as A E F G and DHIJ. They were held entitled to get relief against the defendants second set, namely, Ghafoor, Munshi and Babu Khan who had admitted the plaintiffs' claim in respect of portion of land marked BCFE.
7. In the second appeal, Sri V. C. Misra, learned counsel for the plaintiffs-appellants, has contended that the lower appellate court wrongly dismissed the suit in respect of the pieces of land marked A E F G and D H IJ. He has contended that the judgment of the lower appellate court is bad in law because of the misreading of evidence and due to the wrong construction placed on the documents of title on which reliance was placed by the plaintiffs. The lower appellate court observed in its judgment:
"The land in dispute lies in Mohall-a Gujarpara. The plaintiffs-respondents are residents of Nai Basti Katra Wazir Khan and not of Mohalla Gujarpara. The present suit being a representative suit under Order 1, Rule 8, C.P.C. it was absolutely necessary to have examined some witnesses from Mohalla Gujarpara."
8. Counsel's contention is that the lower appellate court failed to appreciate that the witnesses who were examined on behalf of the plaintiffs were residents of the disputed locality itself and he has submitted that confusion has been creat-
ed on account of the nomenclature of the Mohalla. He has referred to the statement of P.W. 3 Sri Ram who has stated that in Katra Wazir Khan there are various Mohallas and that the land in dispute is situated in Mohalla Gujarpara. Therefore, the lower appellate court was wrong in holding that because the plaintiffs' witnesses had stated that they were residents of Katra Wazir Khan, therefore, they could not be residents of Gujarpara. The latter was only a part of Katra Wazir Khan, and, therefore, a person who claimed to be resident of Katra Wazir Khan may as well be a resident of the sub-Mohalla Gujarpara. The vital thing was that the witnesses examined on behalf of the plaintiffs had clearly stated that they were from the locality in dispute itself. Sri Misra then contended that the lower appellate court wrongly interpreted Ext. A-8 dated 13th October, 1959 which was a sale deed executed by Ghafoor Khan and others in favour of Smt Roop Rani. He has referred to the boundaries in the said document and has contended that the lower appellate court did not properly appreciate the same with reference to the spot position. Lastly, it was contended that the lower appellate court indulged in a mere conjecture in holding that the second set of defendants was in collusion with the plaintiffs. It was contended that there was no evidence to that effect.
9. Sri K. C. Saksena, the learned counsel for the respondents, has contended that the findings recorded by the lower appellate court are pure findings of fact and even if there be some mistakes in the appreciation in isolated pieces of evidence, still, the findings cannot 'be reversed because there are other pieces of good evidence on which the lower appellate court has placed reliance.
10. The learned counsel for both the sides cited copious case law on the true nature and scope of Section 100, C.P.C. Sri V. C. Misra placed reliance on the following cases: Pedasuthayya v. Akkamma (AIR 1958 SC 1042), Sree Meenakshi Mills Ltd. v. I.T. Commr. (AIR 1957 SC 49), Sarju Pershad v. Jwaleshwari (AIR 1951 SC 120), Ram Lal v. Dhirendra Nath (AIR 1943 PC 24), Raj Singh v. Gajraj Singh (AIR 1966 All 3,35), Nathu Lal v. Dal Chand (AIR 1934 All 902), Banarashi v. Sankarlal (AIR 1861 Assam 13), Chief Inspector of Stamps v. Suraj Karan (AIR 1949 All 170), Kantilal v. Vimla (AIR 1952 Sau 44), Ram Bali v. Ram Asre (AIR 1925 Oudh 386), W. D. Naronha v. Trijugi Narayan (1957 All WR (HC) 567).
11. Sri K. C. Saksena, on the other hand, placed reliance on the following cases:-- Mattulal v. Radhe Lal (AIR 1974 SC 1596), Gappulal v. Shriji Dwarkadheeshji (AIR 1969 SC 1291), Abdul v. Bhawani (AIR 1966 SC 1718), State of Kerala v, K. M. C. Abdulla & Co. (AIR 1965 SC 1585), Ramchandra v. Ramalingam (AIR 1963 SC 302), Durga Singh v. Tholu (AIR 1963 SC 361), Jyotish v. Tarakant (AIR 1963 SC 605), Ramappa v. Bojjappa (AIR 1963 SC 1633), Gurbaksh Singh v. Nikka Singh (AIR 1963 SC 1917), Chunilal V. Mehta v. C. S, & M. Co. Ltd. (AIR 1962 SC 1314), Pattabhiramaswamy v. S. Hanumayya (AIR 1959 SC 57), Paras Nath v. Mohani Dasi (AIR 1959 SC 1204), Deokinandan v. Murlidhar (AIR 1957 SC 133), Misri Lal v. Suraj (AIR 1950 PC 28).
12. In AIR 1974 SC 1596 (supra), Bhagwati, J. has laid down as under:--
"It is settled law that the High Court in second appeal cannot reappreciate the evidence and interfere with findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of the fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse."
In AIR 1969 ,SC 1291, Bachawat, J. laid down as under:
"In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase, of rent did not import a new demise. This finding of fact was binding on the High Court in second appeal. The High Court was in error in holding that there was one integrated tenancy of the six shops."
13. In AIR 1966 SC 1718 (supra), Subba Rao, J. observed as under:
"Learned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellant's name was recorded in the register of rights, that in subsequent Khasras uptp 1953 his name continued to be shown as the owner of the suit land and that, therefore, the court below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title. But the perusal of the judgments of the Courts below shows that all the courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established then title. Indeed, though the High Court rightly pointed out that the finding of fact given by the lower appellate court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents' ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact"
In my opinion, AIR 1965 SC 1585 (supra) has no relevance as I find no discussion about the nature and scope of Section 100, C.P.C. in the said case.
14. In AIR 1963 SC 302, Gajendragadkar, J. laid down as under:
"The question about the limits of the jurisdiction of the High Court in entertaining second appeals has been considered by several High Courts in India as well as the Privy Council on numerous occasions, and the true legal position in that behalf is not at all in doubt. In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate court. That, in plain terms, is what Clauses (a), (b) and (c) of Section 100(1) provide. Mr. Chatterjee however, relies on Clause (c) of Section 100(1) and contends that the High Court found that there was a substantial error of defect in the procedure affecting the decision on the merits; and he seeks to support this contention on the ground that all the reasons given by the trial court in support of its finding that respondent No. 1 was not bound by the agreement, had not been duly considered by the lower appellate court, and that if a substantial error and defect in the procedure. He says that if the lower appellate court wanted to interfere with the trial court's conclusions of fact, it was necessary that all the reasons given by the trial court should have been examined and the whole of the evidence set out by the trial court in its judgment should have been taken into account. Since the judgment of the lower appellate court is not elaborate and some of the grounds set out in the trial court's judgment have not been examined, that constitutes an error or defect in the procedure and so, the High Court was entitled to correct that error or defect, because the said error or defect affected the decision of the merits in the case. The judgment of the appeal court Mr. Chatterjee contends, "must come into close quarters" with the judgment of the trial court and meet the reasoning given therein, before it can be treated as conclusive between the parties for the purposes of Section 100.
It is well known that as early as 1890, the Privy Council had occasion to consider this aspect of the matter in Mst. Durga Chawdhrain v. Jawahir Singh, (1890) 17 Ind App 122 (PC). In that case, it wa's urged before the Privy Council, relying upon the decision of the Calcutta and Allahabad High Courts in Futtehma Begum v. Mohamed Ausur, (1883) ILR 0 Cal 309 and Nivath Singh v. Bhikki Singh, (1885) ILR 7 All 649 (FB), respectively, that the High Court would be within its jurisdiction in holding that where the lower appellate court has clearly misapprehended what the evidece before it was, and has been led to discard or not give sufficient weight to other evidence to which it is not entitled, the High Court can interfere under Section 100. This contention was rejected by for Privy Council and it was observed that an erroneous finding of fact is a different thing from an error or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of as erroneous finding of fact, however gross or inexcusable the error may seem to be. Their Lordships added that nothing can be clearer than the declaration in the Code of Civil Procedure that no second appeal will lie except on the grounds specified in Section 584 (corresponding to Section 100 of the present Code), and they uttered a word of warning that no court in India or elsewhere has power to add to or enlarge those grounds. Since 1890, this decision has been treated as a leading decision on the question about the jurisdiction of the High Court in dealing with questions of facts in second appeal.
"It is necessary to remember that Section 100(1)(c) refers to a substantial error or defect in the procedure. The defect or error must be substantial-- that is one fact to remember; and the substantial error or defect should be such as may possibly have produced error or defect in the decision of the case upon the merits --that is another fact to be borne in mind. The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate court 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. On the other hand, if in dealing with a question of fact, the lower appellate court has placed the onus on a wrong party and its finding of facts is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate court fails to consider an issue which had been tried and found upon by the trial court and proceeds to reverse the trial court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appell