S. Radhakrishnan, J.@mdashThe Appellant herein was the original Plaintiff and the Respondents herein were the original Defendants. The original Plaintiff had filed a Regular Civil Suit No. 50 of 1980 before the Court of Civil Judge, Junior Division, Kagal, contending therein that the Defendants had encroached into the land which was in possession of the Plaintiff in Survey No. 118 Hissa No. 2 admeasuring about 3-R (three gunthas). It was the case of the Plaintiff before the Trial Court that on the said area of 3 gunthas which was encroached upon by the Defendants, there were three mango trees and that the said encroachment had taken place some time in February, 1976. It is the case of the Plaintiff that the Plaintiff is the owner of an ancestral property which included the above suit land also.
2. Before the Trial Court, the Plaintiff had contended that the Plaintiff had been in possession of the said land ever since 1956, and sometime in the year 1976 the Defendants have encroached upon the said land and have dispossessed the Plaintiff. The Plaintiff had also pointed out that in view of the aforesaid encroachment the Plaintiff had also applied to D.I.L.R. for measurement of the said land and accordingly, the concerned revenue authorities, after giving notice to all the concerned persons and encroachers measured the suit land on 21st April, 1977. It appears that the notice of taking such a survey was also served on the Defendants who have admitted the receipt of such a notice. It was the case of the Plaintiff "before the Trial Court that even from the said survey taken by the authorities, it was very clear that the Defendants had encroached upon the Plaintiffs suit land.
3. The Trial Court, after recording the evidence and going through the records, by its judgment and order dated 29th October, 1983 had decreed the suit in favour of the Plaintiff, the Trial Court has given a categorical finding that the Plaintiff (Appellant herein) was in continuous possession of the suit land right from 1956 till 1976. The Trial Court has also rejected the defence of the Defendants that they were the permanent tenants of the said suit land. The Trial Court has come to the conclusion that the Defendants were the trespassers on the said land which was in possession of the Plaintiff from 1956 till 1976. The Defendants were directed by the Trial Court to deliver the possession of the said suit property to the Plaintiff. The Defendants were also directed to pay to the Plaintiff Rs. 30 per annum as the income for the years 1978-79 to 1979-80 which they had enjoyed adversely. In addition, the Defendants were also directed to pay to the Plaintiff Rs. 15 p.a. towards the mense profits from the date of the suit till the actual delivery of the possession.
4. Being aggrieved by the aforesaid judgment and order of the Trial Court, the Defendants had preferred a Regular Civil Appeal No. 272 of 1983 before the Third Additional District Judge, Kolhapur. The said appeal was allowed by the learned Lower Appellate Court by its judgment and order dated 3rd January, 1987 whereby the Trial Court''s judgment and order was set aside and the Plaintiffs suit was dismissed. The learned Lower Appellate Court has given a categorical finding that the Plaintiff has failed to prove his title to the suit land and had held that even the Defendants were also trespassers and they had no title to the said property. In paragraph 11 of the judgment, the learned Lower Appellant Court has held as under :-
"Admittedly, the Defendants are in actual possession of the suit land. It is the contention of the Defendants that they are owners of the suit land. At the out-set I may say that besides bare statement of the Defendant No. 1, there is no iota of evidence to prove the Defendants ownership over the suit land. The evidence on record shows that the plaintiff was trespasser on the suit land. Simultaneously, it is also clear from the evidence on record that the Defendants are also trespassers on the suit land. It is, thus, clear that this is the litigation between the trespassers. In view of this position, it can be mentioned that the case of the Defendants stands on better footing as they are in actual possession of the suit land. Unless, it is proved that the Plaintiff has got better title to the suit land, he cannot claim the possession from the Defendants. The Plaintiff has miserably failed to prove his better title to the suit land
5. Being aggrieved by the judgment and order of the learned Lower Appellate Court, the present second appeal has been filed by the original Plaintiff, thereby raising a substantial question of law as to whether the learned Lower Appellate Court has erred in law by adopting an erroneous proposition of law holding thereby that in such a case of litigation between two trespassers, the Defendants stood on a better footing as they were in actual possession of the suit land, and that the Plaintiff could not claim possession of the suit land from the Defendants unless the Plaintiff could prove that he had a better title to the suit land than that of the Defendants. That is to say, the main basis, on which the learned Lower Appellate Court has reversed the Trial Court''s decree, was on an erroneous proposition of law viz. that in case of a suit between the two trespassers, the Plaintiff has to show the better title than that of the Defendants trespassers. The learned Lower Appellate Court had held that as the Plaintiff has failed to prove the better title than that of the Defendants, and as the Defendants were in actual possession of the suit land, the Defendants were entitled to remain in possession, and accordingly, the Trial Court''s judgment and decree was set aside.
6. Mrs. Gokhale, the learned counsel for the appellant (original Plaintiff) has contended that, before the Trial Court, the suit was on the basis that the Plaintiff was in actual possession of the suit land right from 1956 onwards, being the ancestral property. Mrs. Gokhale, the learned Counsel for the Appellant has brought to my notice that before the Trial Court the 7/12 extract of the suit land was produced right from 1956-57 to 1982-83, and that the revenue records clearly indicated that the Plaintiff (Appellant herein) was in possession of the suit land.
7. It is the case of the Appellant herein that the suit land was an ancestral property of the Appellant and that the Appellant was in actual possession of the said ancestral properly, whereas, the Respondents herein being in occupation of the adjacent land had encroached upon the said land to the extent of 3 gunthas in the year 1976.
8. The learned Counsel for the Appellant has pointed out that the Trial Court has given a categorical finding that the Appellant herein has been in continuous possession of the suit land right from 1956 till 1976. The learned Trial Judge, on the basis of that aforesaid continuous possession of the Appellant for nearly 20 years, appears to have concluded that the Appellant was entitled to the title of the suit land.
9. According to Mrs. Gokhale, the learned Counsel for the Appellant, the only ground, on which the Lower Appellate Court has reversed the Trial Courts decree, was on the ground of actual possession of the suit land by the Respondents at that time when both; the Appellant and the Respondents were held to be the trespassers on the said land. According to her the view taken by the learned Lower Appellate Court was that as the both; the Appellant and the Respondents were the trespassers on the suit land, the Respondents stood on a better footing as they were in actual possession, and unless the Appellant could prove a better title to the suit land he could not get possession of the suit land from the Respondents. Hence, the learned counsel for the Appellants has submitted that the learned Lower Appellate Court has proceeded on an erroneous proposition of law, viz. that in case of a suit between two trespassers, the Plaintiff has to show better title than that of the Defendants so as to get the possession of the said land.
10. Mrs. Gokhale, the learned Counsel for the Appellants, has relied upon the judgment of the Rajasthan High Court in the case of Deepal and Others v. Parshwanath Digambar Jain Vidyalaya Mahamantri Shri. Gulabchand, Relying upon the aforesaid judgment, Mrs. Gokhale has pointed out that the pleadings in India specially those in the Mofussil should not be construed very strictly and the Court must look to the essential justice of the case, without considering whether matters of form have been strictly adhered to. She has further contended that it was also pleaded in the Plaint that the Plaintiff was in possession of the said land as an ancestral property and from the evidence recorded before the Trial Court it is clear that the Plaintiff was able to produce the 7/12 extract so as to indicate that he was in possession of the suit land from 1956 to 1976.
11. Further. Mrs. Gokhale, the learned Counsel for the Appellants, has also relied upon the Division Bench Judgment of our High Court in the case of Sheshrao Parashram v. Yeshwant Ambusa and Others,. In this case, the Court was concerned with an issue as to whether the Plaintiff, merely on the basis of prior possession can claim the restoration of possession from the trespasser. In the said case it was argued before this Court that in case of a suit between the two trespassers, the Plaintiff cannot maintain the suit for restoration of possession on dispossession by the trespasser. Finally, our High Court has taken a view that such a suit for possession on the basis of a possessory title of the Plaintiff who has been dispossessed by a person without any title to be maintainable and the Plaintiff is entitled to claim possession from the trespasser. In the aforesaid judgment in the case of Sheshrao, our High Court has referred to the decision of the Supreme Court in the case of Nair Service Society Ltd. v. K. C. Alexander, Mrs. Gokhale, the learned counsel for the Appellants has also relied upon the said decision of the Supreme Court. The Supreme Court in the aforesaid case of Nair Service Society Ltd. had held that in case of a suit between two trespassers, the Plaintiff can maintain such suit against the Defendant who is a trespasser, only on the condition that such a suit is filed within a period of 12 years from dispossession. In the instant case, it is the case of the Appellant that, the suit has been filed within a period of four years. [That the Plaintiff was dispossessed in the year 1976 whereas the suit was filed in the year 1980). In the aforesaid judgment of Nair Service Society Ltd. the Supreme Court has quoted with approval the observations of the Madras High Court in the case of Mustapha Sahib v. Santha Pillai,. The said observations read as under :-
"...... that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title."
The rule in question is so firmly established as to render a lengthened discussion about it quite superfluous. Asher v. Whit lock, and the rulings of the Judicial Committee in Mt. Sunder v. Mt. Porbati and Ismail Ariff v. Mahomed Ghous, not to mention numerous other decisions here and in England to the same effect, are clear authorities in support of the view stated above ...... section 9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well recognised doctrine expressed in Pollock and Write on possession thus :- Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner''s title."
12. In the aforesaid case of Nair Service Society, the Supreme Court has categorically held in Paragraph 14 as under :-
"........ In other words, the right is only restricted to possession only in a suit u/s 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 ands 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable properly based on possession and not on title, when the Plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent."
13. It is the contention of learned Counsel for the Appellant that both the Courts below have given their concurrent findings that the Plaintiff has been in possession of the suit land from 1956 to 1976 and that in the year 1976 the Defendants have dispossessed the Plaintiff. Mrs. Gokhale, the learned Counsel for the Appellant, has further contended that the Lower Appellate Court has proceeded on an erroneous proposition of law and has taken an erroneous view that in case of a suit between the two trespassers, the Defendants who were in actual possession of the suit land would have the right to remain on the said land, unless the Plaintiff was able to establish the better title than that of the Defendants. Therefore, Mrs. Gokhale, the learned Counsel for the Appellant has contended that, in view of the patent erroneous proposition of law adopted by the learned Lower Appellate Court, this Court, even though exercising its jurisdiction in a Second Appeal, ought to interfere as the same is a substantial question of law.
14. On the other hand, Mr. Saste, the learned Counsel for the Respondents (Original Defendants) has strongly contended that the Lower Appellate Court''s judgment and order was fully justified and this Court ought not to interfere with the same. He has contended that the scope of interference by this Court in a second appeal is very limited and in view thereof, he has brought to my notice the judgment of the Apex Court in the case of Kondiba Dagude Kadam v. Savitribai Sopan Gujar and Others. In the said case the Apex Court has laid down the scope of interference in a second appeal u/s 100 of the Code of Civil Procedure, after the 1976 amendment to the Code of Civil Procedure. In Paragraphs 3. 4, 5 and 6 of the judgments, the Supreme Court has elucidated in detail the scope of the High Court''s power in a second appeal. The said Paragraphs 3, 4. 5 and 6 read as under :- "3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely State the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence."
"4. It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed u/s 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the First Appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an Inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., held this:
"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 pubic 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."
5. "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. It is true that the Lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in second appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two Inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. 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."
"6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the First Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the First Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramakrishna Govind Morey, held that whether the Trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference-"
15. Mr. Saste, the learned Counsel for the Respondents has also relied upon the judgment of the Apex Court in the case of Mohd. Amirullah Khan and Ors. v. Mohd. Hakumullah Khan and Ors., pointing out thereby that in a second appeal, the High Court cannot reappreciate the evidence and reverse the findings of facts arrived at by the First Appellate Court. In the aforesaid judgment of Mohd. Amirullah Khan, the Supreme Court has reiterated the principle that the High Court while hearing a second appeal ought not to have reappreciated the evidence and reversed the findings of facts arrived at by the Lower Appellate Court.
16. Mr. Saste the learned Counsel for the Respondents thereafter relied upon the judgment of the Supreme Court in the case of Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, of the aforesaid judgment, the Supreme Court has held as under :-
"Having given our anxious consideration to the rival contentions aforesaid, we find ourselves unable to sustain the decision rendered by the learned Single Judge of the High Court for the reasons that follow :
It has to be kept in view that the learned Single Judge was exercising jurisdiction u/s 100 of the C.P.C. as it was amended in 1976. A mere look at the said provision shows that the High Court can exercise its jurisdiction u/s 100 of C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being Kshitish Chandra Purkait v. Santosh Kumar Purkait, and Sheel Chand v. Prakash Ghand, that the judgment rendered by the High Court u/s 100 of the C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed."
17. Mr. Saste, has therefore contended that the substantial question of law which is raised and argued at the time of hearing is not permissible as the same was not framed at the time of admission of the appeal. According to Mr. Saste, the substantial question of law framed at the time of admission of the appeal is only permissible to be argued, whereas in the instant case, at the time of admission of the Second Appeal, such a question was not framed. As such according to Mr. Saste, this Court ought not to permit such a substantial question of law to be raised and argued at the final hearing.
18. Mr. Saste, the learned Counsel for the Respondents also relied upon another judgment of the Apex Court in the case of Taherakhatoon (D) By Lrs, v. Salambin Mohammad, in this case the Apex Court has dealt with the Issue of scope of High Court to interfere u/s 100 of the Code of Civil Procedure. The Supreme Court in the aforesaid judgment has again reiterated that the High Court cannot interfere with the prior findings of fact in a second appeal.
19. The learned Counsel for the Respondents has also relied upon the judgment of the Supreme Court in the case of K. Chelliah Servai v. P. Mitthusami Servai, In this case, the Supreme Court has held that, in a second appeal, it was not open to the High Court to have gone into the question which was neither pleaded nor raised or dealt with by the Trial Court and the Lower Appellate Court.
20. The learned Counsel for the Respondents has contended that at the time of trial, no issue was specifically framed to the effect as to whether the Plaintiff was in possession of the suit land from 1956 to 1976 as the Plaintiff has been dispossessed in the year 1976. So far as the issues framed by the Trial Court, if one were to look at Issue No. 2 framed by the Trial Court, the same reads as under :-
"Does the Plaintiff prove that the Defendants have made encroachments in the suit properties as alleged ?"
21. From the above issue it is inherent that the Plaintiff was already in possession and that the Defendants had encroached upon the said property. Admittedly, at the time of trial, the Plaintiff was able to produce 7/12 extract as well as the record of land survey which was taken in May, 1977 which indicated that the Plaintiffs was in possession of the said land from 1956 to 1976, and after 1976 the Defendants had encroached upon the Plaintiffs land to the extent of three gunthas. Therefore, the submission of the learned Counsel for the Respondents (original Defendants), that the Respondents had no opportunity to deal with this issue of possession of Appellant (original Plaintiff) for over 20 years has no basis at all. In this context, it should be noticed that both the Courts below have given their categorical finding with regard to the aspect of possession by the Appellant of the said suit land from 1956 to 1976. In this regard the Trial Court, in para 8 of its judgment, has held as under :-
"..... Even if for the time being it is considered that the suit property is not ancestral property of the Plaintiff, he has a continuous possession right from 1956-57 ..... "
"..... Under these circumstances I have to hold that by continuous possession of the Plaintiff right from 1956-57 till 1976 he got the title in the suit property.
Similarly, on this aspect of possession of the said suit land by the Plaintiff, in para 10 of its judgment, the Lower Appellate Court has also given its finding as under :-
"Even refrying on the entries in the 7/12 extract at Exh. 49, it can be taken that the suit land was in possession of the Plaintiff since 1956-57 to 1975-76. But mere such long standing possession does not confer title to the suit land in favour of the Plaintiff..."
22. Therefore, the submission of the learned Counsel for the Respondents that the Respondents had no opportunity to deal with the issue of possession of the suit land by the Plaintiff for a period of 20 years, has no substance at all.
23. With regard to the contention of the learned Counsel for the Respondents that this Court cannot reverse the findings of the Lower Appellate Court or the Trial Court, it is a settled law that this Court cannot do so. The substantial question of law raised in the present second Appeal does not involve reversing of any findings of fact arrived at either by the Trial Court or by the Lower Appellate Court. In fact, the substantial question of law arises on the basis of findings of fact arrived at by both the Courts below holding thereby that the Plaintiff was in possession of the suit land for a period of 20 years. The only issue of substantial question of law is that whether the Lower Appellate Court had proceeded on an erroneous proposition of law as pointed out hereinabove.
24. With regard to the contention of the learned Counsel for the Respondents that this Court ought not to frame the substantial question of law which was not framed at the time of admission of the Second Appeal, and at the most, this Court can only entertain such substantial question of law as formulated in the memo of appeal as has been held by the Supreme Court in the case of Dnyanoba Bhaurao Shemade mentioned herein above. It should be noted here that the above judgment was delivered by the Supreme Court on 5th February, 1999 whereas, in the subsequent judgment of the Supreme Court delivered on 16th April, 1999 in the case of Kondiba Dogodu Kadam mentioned hereinabove, in very clear terms, the Supreme Court has explained and interpreted the scope of proviso to Section 100 of the Code of the Civil Procedure which acknowledges the power of High Court to hear an appeal on a substantial point of law though not formulated by it, with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. In fact, in the earlier judgment of Dnyanoba Bhaurao Shemade, the proviso to Section 100 of the CPC was not considered and dealt with by the Supreme Court, whereas in the subsequent judgment in the case of Kondiba Dagadu Kadam the said proviso to Section 100 of the CPC has been considered and dealt with by the Supreme Court. Hence, in view of the aforesaid judgment of the Supreme Court in the case of Kondiba Dagadu Kadam, it is clear that, so as to prevent an injustice to the litigant, the substantial question of law can be formulated and dealt with even at the time of hearing of the second appeal, though it was not formulated at the time of admission of the second appeal.
25. With regard to the aforesaid substantial question of law raised by the learned Counsel for the Appellant viz. whether the learned Lower Appellate Court has proceeded on an erroneous proposition of law, in the sense holding thereby that in case of a suit between two trespassers the Plaintiff ought to establish that he has better title than that of the Defendants, I am of the clear opinion that the learned Lower Appellate Court has proceed on an erroneous proposition of law and decided the matter thereby reversing the Trial Court''s decree. In view of the aforesaid decisions referred to and relied upon by the learned Counsel for the Appellant, viz., Nair Service Society Ltd. v. K. C. Alexander, and Sheshrao Parashram v. Yeshwant Ambusa and Others, it is clear that in the instant case, the learned Lower Appellate Court has proceeded on an erroneous proposition of law that in case of a suit between two trespassers the Plaintiff has to show a better title than that of the Defendants otherwise the Plaintiff cannot claim possession of the suit land from the Defendants. The learned Lower Appellant Court has reversed the findings of the Trial Court on the basis of an erroneous proposition of law and hence, the same cannot be sustained.
26. Under the aforesaid facts and circumstances, second appeal is allowed and the Lower Appellate Court''s judgment and order dated 3rd January, 1987 in Regular Civil Appeal No. 272 of 1983 is set aside. The Trial Courts judgment and order dated 29th October, 1983 in Regular Civil Suit No. 50 of 1980 is restored. Second Appeal is accordingly allowed, however there shall be no order as to costs.
27. The learned Counsel for the Respondents prays for stay of this judgment and order for a period of six weeks. Accordingly, this judgment and order is stayed for a period of six weeks.
28. Court Stenographer is permitted to issue an ordinary copy of this order. Issuance of certified copy is expedited.
