Pratap Krishna Lohra, J.

1. Appalled by the impugned judgment and decree dated 31st of March 2011 passed by the learned Addl. District Judge No. 3, Jodhpur (for short, learned lower appellate Court), appellants/plaintiffs have laid this second appeal. By the impugned judgment, the learned lower appellate Court has affirmed the judgment and decree dated 31.07.2007 passed by the learned Civil Judge (Jr.Div.) No. 6, Jodhpur (for short, learned trial Court), whereby it has dismissed the suit of the appellants for permanent injunction.

2. The apposite facts of this appeal are that appellants filed a civil suit before the learned trial Court seeking the relief of permanent injunction against the respondents/defendants on the basis that plaintiffs are in possession of a Bada situated in Khasara No. 388, Bali Mandawata, Mandore, Jodhpur for last more than five decades since when their father was using it for storing grains etc. It is averred in the plaint that on the basis of their possession on the land, an application was moved by their father for issuance of Patta in respect of the said land. Their uncle also moved application for obtaining Patta of the land and Panchayat Samiti, Surpura started proceedings to grant Patta to their uncle Girdhari and Patta was issued to him but when their father came to know about it, he raised objection that his brother Girdhari was not having possession over the disputed land and only on the basis of forged documents he had applied for patta of the disputed land but despite raising objection by the plaintiffs father patta was issued in the name of their uncle was not cancelled. The plaintiffs came up with the case that they are in possession of the disputed land but respondents/defendants want to encroach over their land. Injunction was sought to the effect that for the disputed land, lease deed or patta should not be granted in favour of Smt. Roopa Devi.

3. The respondent-defendant Urban Improvement Trust, Jodhpur did not respond to the suit, however, respondent-defendant No. 2 Smt. Roopa Devi w/o Late Girdhari filed written statement and refuted all the allegations. In the return, she specifically denied possession of the appellants on the land in question rather pleaded that the land in dispute is in her possession and that the plaintiffs want to encroach over the said land. The respondent categorically emphasized that her husband during his lifetime had filed an application to the Gram Panchayat Surpura, for conversion of land into Abadi in the year 1963 and that the Gram Panchayat issued Patta No. 21 on 01.04.1963 for the land measuring 75 x 150 ft. Asserting that the land in question is in her use and occupation as owner since the date of issuance of Patta, it was prayed that the suit filed by the appellants merits dismissal.

4. On the basis of pleadings of rival parties, the learned trial Court framed six issues for determination. In support of their case, on behalf of the plaintiffs four witnesses were produced. In defence, defendant No. 2 herself appeared in the witness box.

5. The learned trial Court proceeded to decide the matter and on appreciation of evidence available on record, decided all the issues against the appellants and in favour of respondents. The learned trial Court took cognizance of the inconsistencies and serious pitfalls in the evidence of the appellants and relying on that evidence recorded findings against the appellants. The learned trial Court found that the plaintiffs failed to prove their possession on the land in question relying on the proceedings of the Urban Improve Trust and observed that the plaintiffs approached the Court with unclean hands. Finally, the learned trial Court, on the basis of findings arrived at on issue No. 1 to 5, dismissed the suit.

6. Feeling dismayed with the judgment and decree of the learned trial Court, the appellants approached the lower appellate Court and the lower appellate Court examined the matter afresh by re-appraisal of evidence and other materials available on record. Upon examining the findings and conclusions of the learned trial Court, the learned first appellate Court fully concurred with the judgment of the learned trial Court and affirmed the findings arrived at by the learned trial Court. The learned lower appellate Court has completely repudiated the theory of appellants that the land, which is subject matter of litigation, was in possession of plaintiffs and arrived at the conclusion that the learned trial Court has not committed any error of law in passing the judgment and decree. Eventually, the learned lower appellate Court declined to interfere with the judgment and decree of the learned trial Court by dismissing the appeal.

7. Learned counsel for the appellants, Mr. O.P. Joshi, submits that both the learned Courts below have committed serious error of law and fact in construing the evidence and materials available on record and as such finding of fact, may be concurrent, is vitiated in law. Learned counsel for the appellants would contend that it is a clear case of misconstruing the evidence of appellants, therefore, the impugned judgment cannot be sustained.

8. Per contra, learned counsel for the respondents Mr. Rajesh Choudhary and Mr. J.L. Sinwaria would urge that no substantial question of law is involved in the instant appeal, and therefore, no indulgence can be granted to the appellant. Learned counsels have vehemently argued that instant case is a pure and simple case of concurrent finding of fact recorded by both the Courts below, and therefore, interference in the second appeal is not desirable. Both the learned counsels submitted in unison that the learned Courts below, on appreciation of evidence and other materials on record, recorded a definite finding against the appellants which is a finding of fact not liable to be upset by exercising jurisdiction under Section 100 CPC. Learned counsel for the respondents referred to Section 100 of the Code of the Civil Procedure and submitted that against the concurrent finding of the Courts below the second appeal can only be entertained when the Court is satisfied that the case involves substantial question of law. It is further argued that if it is found that in the case no substantial question of law is involved then in second appeal this Court cannot reverse the judgment of the lower appellate Court even if the same is erroneous or other view is possible.

9. I have heard learned counsel for the appellants as well as learned counsel for the respondents and perused the judgments rendered by both the Courts below and scanned the record of the case.

10. Upon perusal of impugned judgments, there remains no quarrel that Patta for the land in dispute is issued by Gram Panchayat, Surpura in the name of husband of respondent No. 2 after completing requisite formalities which is evident from the Inspection Report of Land Acquisition Officer. Perusal of record also indicates that the claim and title of respondent defendant No. 2 on the land in question was found to be genuine with its neighbourhood boundaries as before L.A.O. Receipt No. 7 dated 02.06.1964 was produced showing deposit of amount for issuance of Patta No. 3 and 21 by Girdhari, the husband of respondent-defendant No. 2 Roopa Devi, so also she produced the original letter issued by Gram Panchayat Surpura dated 05.06.2002, which made it crystal clear that Patta No. 21 was issued in the name of Girdhari, her husband. Furthermore, in the notice calling objection also the applicant for the land in question was only the husband of respondent-defendant No. 2. Last but not the least, according to the file of exchange deed, title of Smt. Roopa Devi was found to be truthful while of others fake and worth rejection. In the instant case, the appellants have failed to discharge their burden, therefore, it is not necessary to examine the weakness of the evidence of the opposite party. The law on the subject is trite. Section 101 of the Indian Evidence Act 1872 is based on the rule, ei incumit probation qui decit, non-quit negat - burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The doctrine of burden of proof is further elaborated in following maxims:

Affirmatis est probare - He who affirms must prove.

Affaimanti non neganti incumbit probation - The burden of proof lies upon him who affirms, not upon one who denies.

The cumulative effect of these two maxims is to the effect that the person who affirms should prove it.

11. In that background, on a close scrutiny of the evidence tendered by the appellants, and while testing the deposition of the witnesses of appellants on the touchstone of settled principles, I am afraid, concurrent findings of fact recorded by both the Courts below cannot be faulted. As a matter of fact, the appellants have miserably failed to prove their case for the reliefs craved. It goes without saying that 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. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the Lower Appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or against settled position of law on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

12. In totality, while construing the proposed substantial questions of law by the appellants and analyzing the arguments canvassed on behalf of the appellants, I am unable to find any question of law, which is fairly arguable. It is only where there is a room for difference of opinion on an arguable question of law, the Court may think it necessary to deal the question at some length and discuss alternative views so as to construe the same as the substantial question of law. On the other hand, if the question is practically covered by the authoritative pronouncements of the Honble Apex Court, or if the general principles are to be applied in determining the question are also well settled, and the only question is to apply these principles to particular facts of the case, I am afraid, the same cannot be construed as a substantial question of law. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where: (1) 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. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. None of these exceptions can be pressed into service in the instant appeal inasmuch as there is no cogent material on record to deviate from the general rule.

13. After analyzing the matter in its entirety, I am unable to find any error in appreciation of evidence by both the Courts below and taking into account the concurrent finding of fact and more particularly the finding of learned lower appellate Court, which is the final Court of finding of fact, no case for interference in second appeal is made out.

Consequently, I am not persuaded to interfere in the matter.

14. Resultantly, the appeal fails and the same is hereby dismissed summarily.