Jaspreet Singh, J.

1. This is a batch of two second appeals filed by the defendants who are the appellants, before this Court, against the judgment and decree passed by the lower appellate court dated 18.11.1988 passed in Civil Appeal Nos.168 and 169 of 1987. Since the two appeals arise out of the same judgment and decree and in between the same parties, accordingly they were connected and were heard together and are being decided by this common judgment.

2. In a nutshell, the plaintiffs Suraj Bhan and another had initially instituted a suit for arrears of rent and ejectment in the court of Judge Small Causes, Lucknow seeking the eviction of the defendantsappellants. Since the defendants had raised an issue of title and had denied the relationship of landlord and tenant consequently the Judge Small Causes exercising its power under Section 23 of the Provincial Small Causes Court Act 1887 returned the plaint to be filed before the regular court. It is in this fashion that the plaint was re-filed in the court of Munsif and after making amendments in the plaint, a decree of possession on the basis of title was also sought. The said suit came to be registered as Regular Suit No.323 of 1984.

3. The defendant-appellants contested the suit and also set up a counter claim against the plaintiffs seeking decree of possession against the plaintiffs for the upper portion of the property bearing No.68, Latouche Road Lucknow.

4. The trial court by means of judgment and decree dated 12.08.1987 dismissed the suit of the plaintiffs but it decreed the counter claim of the defendants. In this view of the matter, the plaintiffs preferred two civil appeals under Section 96 CPC bearing Nos.168 and 169 of 1987. One appeal was filed as the suit of the plaintiffs was dismissed and the other was filed as the counter claim of the defendant was decreed.

5. The lower appellate court after hearing the parties allowed both the appeals by means of judgment and decree dated 18.11.1988 as a result the suit of the plaintiffs came to be decreed and the counterclaim of the defendants was dismissed. It is in the aforesaid backdrop that the defendants have now approached this Court by filing two second appeals assailing the judgment of the lower appellate court dated 18.11.1988 and has prayed for the dismissal of the suit of the plaintiffs and decree of the counter claim.

6. The record indicates that initially the two appeals came to be filed in December 1988, however, no substantial question of law was formulated. Later, by means of order dated 15.02.2017 the appeals were formally admitted on the following question of law:-

"Whether the judgment and decree of the learned first appellate court is vitiated because of the wrong interpretation of the Will deed executed by Jadu Nath Chatterji on 08.10.1929"

7. The record would further indicate that the appellant had moved an application proposing additional questions of law involved in the second appeal and after hearing the parties, this Court on 21.07.2023 found that in so far as the issue of Will of Jadu Nath Chatterji is concerned, the same was practically not in dispute and rather in light of the tentative submissions made by the learned counsel for the parties, the question of law was modified by this Court to encompass the controversy involved between the parties more effectively and the question was modified as under:-

"Whether the lower appellate court was justified in decreeing the suit and dismissing the counter claim while ignoring the material evidence and also did not exercise its powers of the first appellate court in terms of Section 96 read with Order 41 Rule 31 CPC"

8. It is on the aforesaid modified question of law that the appeal was heard.

9. Shri Virendra Mishra, learned counsel along with Ms. Shradhra Mishra for the appellants has submitted that the plaintiffs-respondents while filling the suit which was registered as Regular Suit No.323 of 1984 had stated that they were the owners of the property bearing house No.92/146, situate at Gautam Budh Marg, Lucknow and it was also shown in the site plan annexed as annexure A and forming part of the plaint in suit.

10. It was further pleaded that the defendant/appellants were occupying the portion of the aforesaid building, which was shown by the letters A, B, C, D in the site plan with doted lines, as tenants on a month rent of ₹ 50/-. It was further pleaded that the defendants had carried out material alterations in the premises under tenancy by demolishing the wall, removing the doors and erecting new lintel walls which had the effect of disfiguring and diminishing the value of the building and that too without the written consent and permission of the plaintiffs or previous owners and the aforesaid material alterations were done after commencement of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) 1972 Act [U.P. Act No.13 of 1972], consequently they had made themselves liable for eviction on the said ground apart from the fact that the defendants had also denied the title of plaintiffs which was an additional ground available with the plaintiffs for the eviction of the defendants.

11. It was further pleaded that the defendants were in arrears of rent with the effect from 28.12.1982 and despite demands the arrears were not paid which prompted the plaintiffs to issue a notice dated 01.06.1983 demanding arrears of rent as well as ejectment which though was served on the defendants but they failed to comply. This was also followed by another notice dated 17.08.1983 wherein the earlier notice was reiterated and it was further provided that in case if the defendants did not vacate, they would be liable to pay damages at the rate of ₹ 69.20 paise to the plaintiffs. Despite the same the defendants did not comply. In the aforesaid backdrop, the suit was initially filed in the court of Judge Small Causes where the defendants has raised a plea of title and by means of order the plaint was returned to be re-filed on the regular side. The plaintiffs after amending the plaint also sought a relief of possession by incorporating the same in paragraph-10A.

12. This suit was came to be contested by the defendants who have filed their written statement and had set up a case that originally Sochindra Nath Chatterji was the owner of the building known as 68 Latouche Road Lucknow and recorded as house No.92/146 Gautam Budh Marg, Lucknow. It was stated that the defendants had purchased the portion of the said building on 10.08.1966 with certain boundaries mentioned in the deed and thus on the basis of the sale deed the defendants were the owners in possession. It was urged that the portion situate on the ground floor was being used by the defendants as its office since very long. The defendants also raised a plea of adverse possession in paragraph-17 of the written statement. In the aforesaid backdrop it denied the title of the plaintiffs and set up the title in itself simultaneously pleading a case of adverse possession.

13. The defendants also filed a counter claim wherein it was stated that the defendant no.1 had purchased the property from Sochindra Nath Chatterji on 10.08.1966 who was its ostensible owner and it was stated that the father of the plaintiffs, namely Bahauri Lal was a tenant on the upper portion of the said property and was paying rent to its erstwhile landlord. Upon the purchase of the said property, the defendant no.1 became the owner and landlord of the father of the plaintiffs. It was further stated that the notice was served on the father of the plaintiffs for payment of rent but he did not respond. Thereafter Bahauri Lal Agarwal expired and his sons are now the tenants in occupation and in the aforesaid circumstances a counter claim of ejectment was sought against the plaintiffs from the upper portion of the building.

14. In the aforesaid context, the plaintiffs filed a replication to the written statement filed by the defendants and also filed a written statement to the counter claim filed by the defendants. In light of the written statement to the counter claim and the replication to the written statement the plaintiffs stated that the property in question was initially in the name of Jadu Nath Chatterji who had procured two separate properties, one by means of a sale deed dated 04.02.1908 which is referable to house bearing No.266 whereas he acquired the other property bearing Nazul Plots No.189, 191 and 194 on lease measuring one bigha, eight biswa, four biswani and one kachwansi by means of registered lease executed by Nazul Department dated 16.02.1924.

15. Jadu Nath Chatterji executed his last registered Will dated 08.10.1929. In terms of the bequest made by Jadu Nath Chatterji, he clearly stipulated that part of house No.266, which is the property which was purchased by the defendants, was bequeathed in favour of Sochindra Nath Chatterji and Atindra Nath Chatterji (grand sons of Jadu Nath Chatterji; being the sons of his pre-deceased son Jitendra Nath Chatterji, from his first wife Sushila Sunderi Devi). The remaining property whether movable or immovable were bequeathed to his second wife, namely, Anand Bala Devi, who was conferred with a life estate, and after her, the said properties were bequeathed to his sons born from his second wife Anand Bala Devi.

16. In terms of the aforesaid Will dated 08.10.1929 a clear bequeath was made by Jadu Nath Chatterji between the sons of his first wife and the second wife. The defendants claim to have purchased the property by means of sale deed dated 10.08.1966 from Sochindra Nath Chatterji. Whereas, the plaintiffs claim to have purchased the property from Ramendra Nath Chatterji [who is the grand son of Jadu Nath Chatterji] and son of Narendra Nath Chatterji [from the second wife of Jadu Nath Chatterji].

17. The dispute which has been raised by the parties has emerged primarily in view of the property which was bequeathed to the sons of first wife of Jadu Nath Chatterji and part of this property was bequeathed to his second wife Anand Bala Devi with life estate and after her to his sons from his second wife alongwith other properties.

18. This dispute arose on account of certain confusion in the boundaries as mentioned in the certain deeds including the deed by which the defendants had purchased the property. It is in view of the aforesaid that upon exchange of pleadings the trial court framed nine issues. However, the relevant issues upon which the suit came to be contested were:- (i) whether the plaintiffs and the defendants are the owner of the disputed property, (ii) whether the defendants had made any material alteration in the premises in question as stated in para-3 of the plaint, (iii) whether the defendants was the tenant of the plaintiffs, (iv) whether the defendants were served validly a notice for demand and ejectment, (v) whether the plaintiffs is liable to be evicted in light of the prayer made in the counter claim, (vi) whether the defendants have perfected their rights by adverse possession as stated in paragraphs-15 to 17 of their written statement and lastly (vii) whether Sochindra Nath Chatterji was the ostensible owner of the property in question.

19. On the side of the plaintiffs, Suraj Bhan Agarwal was examined as P.W.1 and Arvindra Kumar was examined as P.W.2. However, from the side of the defendants Harvansh Singh was examined as D.W.1 and Jogendra Singh was examined as D.W.2.

20. The trial court clubbed, issue no.2-A, as to whether the plaintiffs and the defendants are the owner alongwith the issue no.9 as to whether Sochindra Nath Chatterji was the ostensible owner. Thereafter the trial court after noticing that no attesting witness of the Will of Jadu Nath Chatterji was examined and thus the Will was not proved and threafter considering the evidence on record concluded that Sochindra Nath Chatterji was the ostensible owner since Jitendra Nath Chatterji the father of Sochindra Nath Chatterji was the owner, accordingly finding that the documents furnished by the defendants were more than 20 years old and drawing presumption as provided under Section 90 of the Indian Evidence Act as applicable to the State of U.P., it found the title of the defendants was proved and dismissed the suit of the plaintiffs but decreed the counter claim by means of judgment and decree dated 12.08.1987.

21. The plaintiffs being aggrieved preferred two appeals, one against the dismissal of the suit and the other against the decree of the counter claim. Both the first appeals bearing Nos.168 and 169 of 1987 were heard together and allowed by the lower appellate court by means of judgment and decree dated 18.11.1988 wherein it was recorded that in so far as the Will of Jadu Nath Chatterni is concerned, the same was relied by both the parties and there was no dispute in respect thereto, consequently dismissal of the suit on the ground that the Will was not proved, was not a reasonable. It also took note of the various deeds and documents filed by the respective parties and found that the property in dispute which was shown in the site plan stood corroborated by the Commissioner's report and it reflected that two separate properties were involved in the sense that the plaintiffs had purchased house No.92/146, situate at Gautam Budh Marg, Lucknow and this was situate on the Nazul plot which was purchased by Jadu Nath Chatterji and was bequeathed to the children of his second wife.

22. As far as the defendants is concerned, they acquired the property from Sochindra Nath Chatterji vide sale deed dated 10.08.1966 and since Sochindra Nath Chatterji was the son of Jitendra Nath Chatterji the pre-deceased son of Jadu Nath Chatterji and accordingly as per his Will this was bequeathed to his two grand sons, namely, Sochindra Nath Chatterji and Atindra Nath Chatterji and this related to property bearing house No.266. The lower appellate court also found that there was certain discrepancy in the boundaries which was mentioned in the sale deed of the defendants and this could not have an adverse impact the rights of the plaintiffs and as such it was found that the defendants were occupying the premises which belonged to the plaintiffs who had purchased the same by way of the sale deed dated 28.12.1982 and since the plaintiffs have been able to establish their title, accordingly while allowing the first appeals, the suit of the plaintiffs came to be decreed and the counter claim was dismissed.

23. Learned counsel for the appellants while attacking the aforesaid judgment and decree dated 18.11.1988 has primarily urged that the plaintiffs did not initiate any proceedings for cancellation of the sale deed belonging to the defendants. The boundaries as stated by the plaintiffs regarding his property did not match and could not be corroborated in terms of the lease deed executed by the Nazul in the year 1924. Till such time the plaintiffs could establish his title with cogent evidence and pointing out the discrepancies in the deed of the defendants would not inure to the benefit of the plaintiffs; inasmuch as the plaintiffs has to stand on his own leg and cannot derive any benefit from the weakness of the defence. It is thus urged that the basic controversy relating to the property, where it was situate and without arriving at clear findings in respect of clear demarcation thereto which was neither done by the trial court nor by the lower appellate court and in such circumstances, the suit could not have been decreed.

24. It is further urged that the civil court is not empowered to grant a decree of eviction which can only be done by the Court of Judge Small Causes. It is urged that even after the plaint was returned from the Judge Small Causes to be re-filed before the court on the regular side yet the plaintiffs did not amend the relief. A decree of eviction can be granted only against a tenant and as there was no relationship of the landlord and the tenant between the parties who were contesting tooth and nail and on the basis of their own respective title, hence even if at all the claim of the plaintiffs was proved yet in absence of seeking and claiming a decree of possession, the same could not be granted in the garb of relief for ejectment.

25. Shri Mishra, learned counsel for the appellants has further submitted that though the plaintiffs had amended paragraph-10A after the suit was re-filed in the regular court yet from the perusal thereof, it would indicate that the plaintiffs had only claimed entitlement to a decree of possession which was in the nature of a declaratory decree and without seeking the substantive relief of possession in the sense that the relief ought to have been made that the plaintiffs must be put in possession after removing the defendants, which has not been done, accordingly the decree as granted could not be awarded which is also an incorrect exercise of jurisdiction by the trial court.

26. It is further submitted that the basic issue regarding the disputed boundaries and the location of the property was not ascertained by the trial court or by the lower appellate court but merely on the basis of inferences drawn from the documents, it has reconsidered its findings and as such the lower appellate court exceeded its jurisdiction by carving out a new case in favour of the plaintiffs to state that the boundaries as mentioned in the sale deed of the defendants is bad. It is urged that neither there was any such dispute regarding the boundaries nor there was any specific pleadings nor there was any direct challenge to the sale deed dated 10.08.1966 hence, it was not open for the lower appellate court to have held the boundaries mentioned in the sale deed of the defendants as bad.

27. Learned counsel for the appellants further submits that inferences which has been drawn by the appellate court on the basis of the evidence; has been arrived at by merely considering the deeds which were filed by the respective parties. However, there is no consideration of any oral evidence led by the parties to arrive at any independent finding recorded by the lower appellate court.

28. It is also submitted by the learned counsel for the appellants that the boundaries as given in the deed of the defendants-appellants have been derived from the averments made in the plaint in suit of Regular Suit No.482 of 1963 which was contested between Lala Govardhan Das and another against Sochindra Nath Chatterji. It is further urged that the boundaries as given in the sale deed in favour of the defendants dated 10.08.1966 were taken from the deed of sale dated 13.06.1939 executed by Sochindra Nath Chatterji in favour of his real younger brother Atindra Nath Chatterji relating to house No.68, Latouche Road and the same boundaries were also mentioned in the sale deed of the defendants dated 10.08.1966. It has further been submitted that the plaintiffs seek to derive some benefits from the proceedings which were the subject matter of suit bearing Regular Suit No.56 of 1958 wherein an alleged compromise is said to have been arrived at between Narendra Nath Chatterji, Samendra Nath Chatterji, Vibha Nanni Devi, Sumendra Nath Chatterji, Ramindra Nath Chatterji and Devendra Nath Chatterji and Priti Devi and it is submitted that the plaintiffs could not get any benefit there from as neither the appellant nor his predecessor were a party to the said proceedings.

29. It is also submitted that a numbers of documents were filed by the plaintiffs which were not proved as they had no foundation in the pleadings, accordingly in totality it would be seen that the lower appellate court has committed an error in failing to consider the basic controversy but drew inferences from documents, which were not connected with the appellants as they were not a party to it and the same has been used against the appellants without meeting with the reasons recorded by the trial court and in this fashion the judgment and decree passed by the lower appellate court is in ignorance of the material evidence available on record. The lower appellate court has relied upon evidence which was not relevant and without framing points for determination the suit has been decreed by reversing the judgment of the trial court dated 12.08.1987 which is not in sound exercise of jurisdiction and powers conferred upon the lower appellate court in terms of Section 96 read with Order 41 Rule 31 CPC.

30. Shir Mishra in support of his submissions as relied upon the following decisions (2001) 3 SCC 179 [LQ/SC/2001/352] Santosh Hazari Vs. Puroshottam Tiwari and 2022 LCD 54 V. Prabhakara Vs. Basavara J. L. to buttress his submissions regarding the powers and duties of the first appellate court and how they are to be exercised.

31. Shri Mishra has further relied upon the decision of the Apex Court in Manjula and others Vs. Shyam Sunder and others (2022) 3 SCC 90, [] K.Karuppuraj Vs. M. Ganeshan (2021) 10 SCC 777 [LQ/SC/2021/3123 ;] and H. Siddiqui Vs. A. Ramlingam (2011) 4 SCC 240 [LQ/SC/2011/358] to support his submissions as to how the lower appellate court is required to exercise its power and compulsorily follow the mandate as provided in Order 41 Rule 31 CPC.

32. Shri Mishra has further relied upon the decisions of the Apex Court in Shreepat Vs. Rajendra Prasad 2000 All. Law Reports 534 and decision of this Court in Shankar Lal Nigam Vs. Addl. Distt. Judge 2019 LCD 3056 to contend that as there was serious dispute regarding the boundaries it was incumbent upon the two courts to have demarcated and identified the property before decreeing the suit which has not been done and thus the basic controversy remained unresolved yet the suit was decreed.

33. Shri Mishra has also relied upon a decision of the Apex Court in Union of India Vs. Ibrahim Uddin and another 2012 LCD 1635 to content that any relief which is not based on pleadings and his outside the grounds as raised by the parties is not to be considered and granted. To the aforesaid effect is the decision of the Apex Court in Union of India Vs. E.I.D. Parry (India) Ltd. (2000) 2 SCC 223 [LQ/SC/2000/217] . Reliance has also been placed on Prataprai N. Kothari Vs. John Braganza (1999) 4 SCC 403 [LQ/SC/1999/500] and in Bachhaj Nahar Vs. Nilima Mandal and another (2008) 17 SCC 491 [LQ/SC/2008/1958] and these decisions too have been cited for the proposition that the decision of a court cannot made on the basis of ground or plea which is outside the pleadings of the parties. Thus the emphasis is:-

(i) the two courts did not enter into the issue of the identification of the property without which it could not be said as to whether the property purchased by the plaintiffs or the one purchased by the defendants were separate for which demarcation and survey should have been done but unfortunately it was not done.

(ii) the court has carved out a new case beyond the pleadings and prayer of the party to hold that the boundaries of the property purchased by the defendants is incorrect.

(iii) the decree of ejectment cannot be granted by the civil court as it is to be done by the Judge Small Causes and that too after establising the relationship of the landlord and tenant and without amending the prayer the suit could not have been decreed.

(iv) the two courts have relied upon various evidence which were not properly connected and have drawn inferences and that too without meeting with the reasons recorded by the trial court and while allowing the appeal and moreso the oral evidence has not been considered at all by the lower appellate court.

Thus for all the aforesaid reasons the appeals deserves to be allowed.

34. Per contra, Shri B. K. Saxena learned counsel alongwith Shri Rakshit Raj Singh for the respondents has submitted that initially the suit was for arrears of rent and ejectment. It is the defendants who had set up a title to itself while denying the relationship of the landlord and tenant and also that he being the owner the decree of ejectment could not be passed.

35. It is further submitted that Judge Small Causes considering the said plea in terms of Section 23 of the Provincial Small Causes Court Act, 1887 returned the plaint to be filed on the regular side and at that stage the plaintiffs categorically amended and incorporated paragraph 10A bringing this fact on record and also stating that the plaintiffs is entitled to a decree of possession against the defendant on the basis of title, if the tenancy is not proved subject to payment of additional court fee, if any.

36. It is thus submitted that once the suit was being contested before the regular civil court and the plaintiff had made the aforesaid pleadings it hardly makes any difference whether the plaintiffs uses word 'possession' or 'ejectment' since the matter was being contested on the basis of title and both the parties were aware of the case, they had to meet. Now at this stage, it cannot be said that the plaintiffs could not be granted the relief merely on account of technical use of the terminology as per the defendant used as ejectment instead of possession.

37. It is further submitted that the plaint as a whole is to be read and the intention as well as the relief which has been prayed for is to be ascertained and in the instant case there were clear recital of entitlement of possession on the basis of the title in case if the tenancy was not proved. In the aforesaid context, the courts have ample power to grant the appropriate relief as prayed and for the aforesaid reason the submissions of the learned counsel for the appellants that the plaint was not appropriately worded and the relief of possession cannot be granted in the garb of ejectment has no legs to stand.

38. Shri Saxena further submits that from the pleadings which were exchanged in between the parties, it was categorically admitted to the parties that the property which was purchased by the defendants from his predecessor, namely, Sochindra Nath Chatterji, it related to house No.266 which was a different property from the property purchased by the plaintiffs as it was bearing house No.92/146 which fell in the share of the sons of Jadu Nath Chatterji from his second wife and the said property had been purchased by Jadu Nath Chatterji by means of registered lease deed dated 16.02.1924 from the Nazul. Thus, there was clarity regarding the property being claimed by the plaintiffs and it was different from the one purchased by the defendants. The Commissioner who had visited the site and had filed his report which was done in Regular Suit No.482 of 1963 which was contested by Gobardhan Das against Sochindra Nath Chatterji (the predecessor of the defendants) and this would also indicate the property which was sold to the defendant was a different property then the property which was purchased by the plaintiffs. In the aforesaid circumstances, there was ample documentary evidence for the lower appellate court to have examined the said documents and return a finding thereon which is a finding of fact which is not liable to be interfered with especially in view of the fact that any inference of fact drawn from the recital or contents of a document is a question of fact and it is not likely to be interfered with in exercise of power under Section 100 CPC. In support of his submissions, he has relied upon the decision of the Apex Court in Hero Vinoth (Minor) Vs. Seshammal (2006) 5 SCC 545 [LQ/SC/2006/449] .

39. Shri Saxena learned counsel for the plaintiff/respondent taking his submissions forward has drawn through the attention of the Court to the lease deed of the year 1924 executed by the Nazul Department in favour of Jadu Nath Chatterji. He has also drawn the attention of the Court to the proceedings of Regular Suit No.56 of 1958 which was contested amongst the sons of Jadu Nath Chatterji from his second wife Anand Bala Devi, wherein the particular property purchased by the plaintiffs was referred to as lot No.4 which was allotted to Narendra Nath Chatterji, son of Jadu Nath Chatterji and it was the which was purchased by the lease deed executed by Nazul dated 16.02.1924.

40. It has also been submitted that during the pendency of the proceedings, the State of U.P. through the Nazul Officer, also executed a lease in favour of the plaintiffs which is on record as paper No.Ka.58 (Exhibit No.20) which also has a site plan annexed and this would indicate that it also relates to the same property which was earlier bequeathed by Jadu Nath Chatterji in favour of his second wife Anand Bala Devi and thereafter it vested with his sons Narendra Nath Chatterji and the sons of Narendra Nath Chatterji, namely, Ramendra Nath Chatterji who executed the sale deed in favour of the plaintiffs.

41. It is also urged that the plaintiffs had clearly pleaded the fact and has also annexed a site plan and the said site plan was corroborated with the Commissioner's report filed in suit bearing No.482 of 1963 which was contested by Sochindra Nath Chatterji (the predecessor of the defendants), and there are documents which contains the admission of Sochindra Nath Chatterji which are binding on the defendants, being his successor.

42. It is also submitted that merely by incorporating an incorrect boundary in the sale deed of the defendants it will not mean that the same mistake can be perpetuated even against the plaintiffs and it is not for the plaintiffs to either seek cancellation or correction in the sale deed of the defendant rather in light of the evidence led by the plaintiff in support of his case to get his relief and the lower appellate court, while examining the documents have returned a finding which were inferred from the documentary evidence and the court arrived at its own independent finding which cannot be said either to be perverse or that a new case was carved out by the lower appellate court, hence the submissions of the appellant is to the said effect is not correct.

43. It is further submitted that primarily the plaintiffs had laid their claim on the basis of the sale deed dated 28.12.1982 executed by Ramendra Nath Chatterji, son of Narendra Nath Chatterji [children from the second wife, Anand Bala Devi, of Jadu Nath Chatterji.] In the aforesaid circumstances, it cannot be pleaded that there was any dispute regarding the identity of the property in question and for the said reason there was no requirement to get a Survey Commission conducted.

44. Shri Saxena further submits that the lower appellate court has meticulously considered the respective case of the parties, formulated the points for determination and thereafter considering the evidence on record, it has returned the findings and it has upset the findings of the trial court and have been set aside. The lower appellate court also recorded the respective contentions of the learned counsel for the parties and thereafter recorded its own findings and thus it cannot be said that the said findings are in contravention of Order 41 Rule 31 CPC.

45. It is urged that the lower appellate court is the final court of fact and it also exercises the same power which are co-extensive with the powers of the trial court and thus by adverting to the evidence especially noticing the kind of controversy which was raised by the defendants, which could at best, be considered in light of the documents filed by the parties and even it there is no specific reference to the oral evidence it cannot be said that the judgment of the lower appellate court is bad as the issue involved could be resolved by considering the documentary evidence.

46. It is also stated that from the perusal of the evidence led by the parties especially D.W.1 and D.W.2, it would indicate that they were formal witnesses who did not have much knowledge regarding the boundaries and the manner in which the deeds came to be executed and for the aforesaid reason even if at all the oral evidence was not specifically considered yet it will not impact the judgment of the lower appellate court since the oral evidence was not material especially in respect of the fact that the issue could be resolved by gathering inferences and ascertained from documentary evidence. For the aforesaid reasons, it is urged that the judgment of the lower appellate court is based on proper appreciation of evidence and as such are not liable to be disturbed in exercise of power under Section 100 CPC, accordingly, the appeal deserves to be dismissed.

47. Shri Saxena, in support of his submissions has relied upon the decision of the Apex Court in Tajender Singh Ghambhir and another Vs. Gurpreet Singh and another (2014) 11 SCC 702 to amplify the powers of the appellate court and the trial court in comparison to each other. In the same string, he has also relied upon the decision in Karedla Parthasaradhi Vs. Gangula Ramanamma and others (2014) 15 SCC 789 [LQ/SC/2014/1304] to explain the power of the first appellate court.

48. Learned counsel for the respondents has also relied upon the decision of this Court in Satya Narain Vs . Puttoo and others 2021 AHC-LKO:5825 in order to explain the powers under Order 41 Rule 31 CPC and how the same have to be exercised. He has also relied upon the decision of the Apex Court in Narendra and others Vs. Ajabrao (2018) 11 SCC 564 [LQ/SC/2017/1564] to buttress his submissions that though the defendants have pleaded the issue of adverse possession and how the same is to be considered. He has also placed relied on a decision of the Apex Court in Hero Vinoth (supra) to address the Court on the issue of what constitutes a substantial question of law and to state that an inference of fact which is drawn from the recital of contents of the document, is a question of fact and is not liable to be interfered with. Thus, for the aforesaid reason, it is stated that the appeals are devoid of merits and deserves to be dismissed.

49. The Court has heard learned counsel for the parties at length and also perused the record.

50. Before adverting to the question of law, it will be appropriate to narrow down the controversy in light of the facts which are not disputed between the parties:-

(a) It is not disputed that Jadu Nath Chatterji was the owner of two separate properties, one was purchased by means of sale deed dated 04.02.1908 which relates to plot no.266 and referred to in the records as Maqboolganj. The other property purchased by him was from the Nazul Department comprising of Plots No.189, 191 and 194 by means of lease deed executed by the Nazul Department in favour of Jadu Nath Chatterji on 16.02.1924.

(b) Another fact, admitted, is that Jadu Nath Chatterji had executed his last registered Will dated 08.10.1929. In terms of the aforesaid Will, the property which Jadu Nath Chatterji had purchased in the year 1908 was bequeathed to his grand sons (children of pre-deceased son namely Jitendra Nath Chatterji, son from his first wife, Sushila Sundari Devi), namely Sochindra Nath Chatterji and Atindra Nath Chatterji. The remaining properties were bequeathed by Jadu Nath Chatterji firstly in favour of second wife Anand Bala Devi who was given a life estate and thereafter the same would devolve on his sons from his second wife. For the sake of convenience, this Court shall be referring to the two respective properties as the property of 1908 and the other as Nazul property which was purchased in 1924.

(c) It is also not disputed that initially Sochindra Nath Chatterji had executed a sale deed in respect of his share in favour of his real brother Atindra Nath Chatterji by means of registered deed dated 13.06.1939. Another fact which is borne out from the record is that Atindra Nath Chatterji sold his share in the property of 1908 in favour of one Govardhan Das by means of registered sale deed dated 23.10.1951. It is also an admitted fact that Atindra Nath Chatterji on 07.03.1949 had gifted his remaining share to his brother Sochindra Nath Chatterji by means of registered gift deed. From the above, it would be clear that initially Sochindra Nath Chatterji and Atindra Nath Chatterji both had equal share in the property of 1908. Sochindra Nath Chatterji transferred his share in favour of his brother in the year 13.06.1939 and at that point of time Atindra Nath Chatterji became the owner of the entire property 1908. Again Atindra Nath Chatterji gifted his half share to his brother Sochindra Nath Chatterji by means of the gift deed dated 07.03.1949 and once again both the brothers became equal owners of the property of 1908. Later, Atindra Nath Chatterji sold his half share in vaour of Lala Govardhan Das by means of sale deed dated 23.10.1951 and thus now the property of 1908 was owned by Sochindra Nath Chatterji and Lala Govardhan Das.

(d) It is in the aforesaid backdrop that in respect of the property of 1908 where Sochindra Nath Chatterji had half share he then sold the property to the defendants-appellants by means of sale deed dated 10.08.1966. It will be noticed at this stage that the defendantsappellants were already a tenant in the said premises and they later purchased the same from Sochindra Nath Chatterji and became the owner in possession thereof. Thus, it would be seen in so far as the plaintiffs-appellants are concerned, their claim, right and title emerges only in respect of the property purchased by them from Sochindra Nath Chatterji and in light of the preceding paragraph which has traced the title, it would indicate that it relates to the property of 1908.

(e) In the aforesaid context, if the case of the plaintiffs-respondents is seen, it would reveal that the part of house No.266 as mentioned in the Will of Jadu Nath Chatterji was bequeathed to Sochindra Nath Chatterji and Atindra Nath Chatterji. However, by virtue of the same Will the other part of House No.266alongwith all other property movable and immovable was bequeathed to the second wife of Jadu Nath Chatterji, namely, Anand Bala Devi and after her death to the sons of Jadu Nath Chatterji from his second wife. It is in the aforesaid context that the Nazul plot alongwith all other movable and immovable property came in the family of sons of Jadu Nath Chatterji from his second wife who were Narendra Nath Chatterji, Samrendra Nath Chatterji, Hirendra Nath Chatterji and Amrendra Nath Chatterji. The record would further indicate that in the year 1958 a declaratory suit was filed amongst the sons Jadu Nath Chatterji from his second wife and this suit came to be registered as Regular Suit No.56 of 1958 wherein Narendra Nath Chatterji was the plaintiff and the defendant were Samrendra Nath Chatterji, Nibhu Nanni Devi (who was the widow of Harendra Nath Chatterji), Swamendra Nath Chatterji, Ramendra Nath Chatterji and Devendra Nath Chatterji (Somendra to Devendra minor sons of Amrendra Nath Chatterji and they were represented by their mother Priti Devi widow of Amrendra Nath Chatterji) and Priti Devi. This suit bearing No.56 of 1958 was compromised amongst the parties and a compromise decree was passed on 25.10.1958 and alongwith the said compromise, a map was also annexed whereby various lots which were allotted to the parties concerned was clearly demarcated. In terms of the aforesaid compromise, Narendra Nath Chatterji and his family were allotted lot number IV-A and IV-B alongwith ground floor portion of the house situate at Gautam Budh Marg which was shown in the map as lot 4-C.

(f) The record would further indicate that lot which was demarcated in terms of the family compromise in the branch of the children of Jadu Nath Chatterji from his second wife, the disputed property which was sold by Ramendra Nath Chatterji son of Narendra Nath Chatterji for himself as well as on behalf of his other brothers to the plaintiffs by means of two sale deeds dated 28.12.1982 and thus both the plaintiffs no.1 and 2 became the owners of the property in question. The record would also indicate that the department of Nazul further executed a lease in favour of the plaintiffs which is on record as exhibit 20 dated 16.08.1985 which also has a map annexed therewith and the property has been demarcated and shown by yellow colour in the map alongwith the lease deed.

(g) Another fact is that in respect of this property which was purchased by the plaintiffs from Ramindra Nath Chatterji on 28.12.1982 was part of lot No. 4 as indicated in the Regular Suit No.56 of 1958 and the father of the plaintiffs, namely, Bahouri Lal was residing therein as a tenant and it is after the sale deed executed on 28.12.1982 that the plaintiffs became the owner in possession thereof.

(h) This would also indicate that both the plaintiffs as well as the defendants were initially tenants of the respective portions which they are now claiming as their own after having purchased it [ as far as the plaintiffs are concerned, from the grand son of Jadu Nath Chatterji born from the children of his second wife] [the defendants purchased it from the grand son of Jadu Nath Chatterji from the children his first wife Sushila Sundari Devi]. Another fact which is borne out from the record is that the title of both the predecessors of the plaintiffs and the defendants is emanating from the Will of Jadu Nath Chatterji of 08.10.1929.

(i) The deeds which have been mentioned by which the property had changed hands including the compromise decree though all clearly refer and relate to the respective title of the predecessor of the plaintiffs and defendants coming down from the Will of Jadu Nath Chatterji dated 08.10.1929.

51. In light of the facts crystallized, now the Court proposes to examine the controversy which has arisen and has been simmering between the parties and has engaged them in a bitter battle since 1984.

52. The precise contention of the learned counsel for the appellants is that they had purchased the property from Sochindra Nath Chatterji and in so far as the northern and southern boundary is concerned, there is no dispute. It is also not disputed that in case if entire house No.266 is concerned which was purchased and arising out of the sale deed of 1908 is concerned, Latouche Road/Gautam Budh Marg has been shown on the western side.

53. As per the defendants, they have stated that in the deed executed by Sochindra Nath Chatterji in favour of Atindra Nath Chatterji on 13.06.1939 it indicated that the property which has been sold had Latouche Road/Gautam Budh Marg on the western side, on the eastern side the house of Narendra Nath Chatterji and other brothers was shown. The house of Dr. Pathak was shown on the northern side whereas on the southern side it mentioned Jadu Nath Sanyal Road. The same boundaries have since then percolated in various deeds which have been relied upon by the defendants to state that the portion which has been purchased by him had Gautam Budh Marg/Latouche Road on the western side bounded with property of Dr. Pathak on the northern side and after the house of Amrendra Nath Chatterji, there is Jadu Nath Sanyal Road and on the eastern side is the house of Amrendra Nath Chatterji and other brothers.

54. On the basis of the aforesaid, it is further stated by the counsel for the appellants that the plaintiffs (prior to them their father Bahauri Lal) was a tenant of the property in question and since the defendant had purchased the property in the manner as indicated in the previous paragraphs. It is their case that the plaintiffs had now become their tenant and therefore they had laid a counter claim seeking eviction of the plaintiffs from the property.

55. In contrast, the plaintiffs categorically states that the children born from the second wife of Jadu Nath Chatterji had got remaining portion of house No.266 alongwith the other properties and after the partition which took place amongst the children of Jadu Nath Chatterji from the second wife in terms of the compromise entered between them in Regular Suit No.56 of 1958. The property came in the hands of Narendra Nath Chatterji who is son of Ramendra Nath Chatterji and he had sold it to the plaintiffs who became its owner and since the defendants were tenant in the ground floor portion of the said property and thus after the sale deed executed in favour of the plaintiffs on 28.12.1982 the defendants became their tenant.

56. In the aforesaid factual matrix, the heart and soul of the entire controversy revolves around the facts regarding whether the plaintiffs or the defendants is the owner in possession of the disputed property which has been shown by the plaintiffs bearing house No.92/146 Gautam Budh Marg and also shown in the site plan which has been annexed and forms part of the plaint in suit as annexure-A. On the other hand, it has to be ascertained whether the defendants are the owner and if so the plaintiffs are its tenants and whether they are to be evicted.

57. As far as Order 41 and Rule 31 CPC is concerned, the same reads as under:-

“31. Contents, date and signature of judgment.-The judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and.

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

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

58. The manner in which an appellate court is required to exercise its jurisdiction has very well has been illustrated in Santosh Hazari (supra) wherein in paragraph 15, the Apex Court has held as under:-

"15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124 [LQ/SC/1966/149] ] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 [LQ/SC/1982/179] : AIR 1983 SC 114 [LQ/SC/1982/179] ] ) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120 [LQ/SC/1950/37] ] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."

59. The aforesaid proposition cannot be disputed and apparently the same aspect has also been considered by the Apex Court in V. Prabhakara (supra) wherein paragraphs-21 and 22 it has noticed as under:-

"22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanour of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.

23. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in Jagdish Singh v. Madhuri Devi [Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497] [LQ/SC/2008/996] : (SCC pp. 504-08, paras 27-37).

“27. It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence—oral as well as documentary—and can come to its own conclusion.

28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable.

29. Before more than a century, in Coghlan v. Cumberland [Coghlan v. Cumberland, (1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus:

‘Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.’

(See also observations of Lord Thankerton in Watt v. Thomas [Watt v. Thomas, 1947 AC 484 : (1947) 1 All ER 582 (HL)].).

30. In Sara Veeraswami v. Talluri Narayya [Sara Veeraswami v. Talluri Narayya, 1948 SCC OnLine PC 48 : AIR 1949 PC 32 [LQ/PC/1948/55] ] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated [ Quoting from Watt v. Thomas, (1947) 1 All ER 582 at pp. 583 H-584 A.] :

‘… but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.’

31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari Pratap Narain Singh [Sarju Pershad v. Jwaleshwari Pratap Narain Singh, 1950 SCC 714 : AIR 1951 SC 120 [LQ/SC/1950/37] ] stated : (SCC p. 717, para 8).

‘8. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.’

32. Referring to several cases on the point, the Court concluded : (Sarju Pershad case [Sarju Pershad v. Jwaleshwari Pratap Narain Singh, 1950 SCC 714 : AIR 1951 SC 120 [LQ/SC/1950/37] ] , SCC p. 720, para 18).

‘18. … The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding.’

33. After about a decade, in Radha Prasad Singh v. Gajadhar Singh [Radha Prasad Singh v. Gajadhar Singh, AIR 1960 SC 115 [LQ/SC/1959/156] ] this Court reiterated : (AIR p. 118, para 14).

'14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in court. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.’

34. In T.D. Gopalan v. Commr. of Hindu Religious & Charitable Endowments [T.D. Gopalan v. Commr. of Hindu Religious & Charitable Endowments, (1972) 2 SCC 329] [LQ/SC/1972/299] , this Court said : (SCC p. 333, para 9).

‘9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross-examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants.’

35. Yet in another decision in Madhusudan Das v. Narayanibai [Madhusudan Das v. Narayanibai, (1983) 1 SCC 35] [LQ/SC/1982/179] , this Court said : (SCC pp. 39-40, para 8).

‘8. … At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. …The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.’

36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:

(i) it applies its mind to reasons given by the trial court;

(ii) it has no advantage of seeing and hearing the witnesses; and.

(iii) it records cogent and convincing reasons for disagreeing with the trial court.

37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has “virtually” reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law.

(emphasis in original)."

60. The other decision in Manjula (supra), K. Karuppuraj (supra) and H Siddiqui (supra) also strike a similar chord and needless to say that the aforesaid proposition cannot be disputed. However, now it is to be seen whether the judgment of the lower appellate court falls foul of the parameters as noticed and held by the Apex Court in the decision referred hereinabove.

61. Apparently, what can be culled out is that the court dealing with an appeal must frame points for determination in order to filter out the controversy and it also help in putting a prespective in light whereof the facts, the evidence and the reasoning is to be examined. The court of first appeal is a court of both law and fact and it is required to deal with the respective contentions of the parties, meet with the reasons recorded by the trial court and then if it concurs with the findings of the trial court it may so record its reason or in case it differs then it has the right to reverse the finding by recording its own reasons, independently.

62. In the aforesaid context, upon perusal of the judgment passed by the lower appellate court, this Court finds that the lower appellate court has first noticed the respective case and contentions of the parties and thereafter at internal page-6, third paragraph, the crux of the controversy arising between the parties has been noticed. It may be true that the lower appellate court has not specifically used the words 'points for determination' but it has very clearly in the vernacular expressed and noticed what are the points of contentions, in the paragraph mentioned above which clearly amplifies that the lower appellate was conscious of the contentions between the parties and the issue which was required to be adjudicated.

63. Thus this Court finds that the lower appellate court did notice the controversy and points that emerged for consideration and for the said reason the judgment cannot be faulted on the sole count that points for determination was not framed.

64. This Court had the occasion to consider the issue of Order 41 Rule 31 CPC in Dalla Vs. Nanhu [2019(1)ADJ 246(LB)] in detail alongwith the aid of the decision of the Apex Court and in paragraphs17 to 23 and 31 to 34 it was held as under:-

"17. From the reading of the provision, it would indicate that the provisions of Order XLI Rule 31 CPC are salutary in nature and object thereof is to focus on the contention of the parties and the appellate court in understanding in adjudicating the rival claims. Thus, the provisions, therefore, must be complied with, however, non-compliance with the provisions of Rule 31 of Order XLI CPC may be an irregularity of serious nature, but, it would not amount to illegality and would not vitiate the judgment and make it wholly void, if there is substantial compliance with the provisions and the Court is satisfied that the justice has not suffered thereby it would be valid and operative.

18. I am fortified in my above view in light of the judgment of Hon'ble the Supreme Court, reported in G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224 [LQ/SC/2006/200] wherein after taking into consideration the law laid down by the Hon'ble Apex Court in the case of Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, [LQ/SC/2001/352] it interpreted the provisions of Order XLI Rule 31 CPC held as under: —

“The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.”

19. It has been repeatedly held by this Court as well as by Hon'ble Supreme Court that the first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth and pressed by the parties for decision.

20. This issue was also considered by Hon'ble the Supreme Court in the case of Laliteshwar Prasad Singh v. S.P. Srivastava, reported in (2017) 2 SCC 415, [LQ/SC/2016/1611] wherein considering the provisions of Order XLI Rule 31 CPC, Hon'ble the Supreme Court held as under:—

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

“31. Contents, date and signature of judgment.-The judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and.

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

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

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

21. The Hon'ble Supreme Court in the case of G. Saraswathi v. Rathinammal, reported in (2018) 3 SCC 340 [LQ/SC/2018/204] had the occasion to consider the scope and applicability of Order XLI Rule 31 CPC and held as under:—

“10. Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits.”

22. Thus what can be culled out from the decisions of the Hon'ble Apex Court is that the judgment of the first appellate Court must confirm to the mandate of Order XLI Rule 31 CPC as it is a duty cast on the first appellate Court to follow and perform.

23. The spirit of the provision is to ensure that the appellate Court must record reasons for the decisions and is to focus attention of the Court to rival contentions of the parties which arise for determinations and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which the decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal conferred by Section 100 CPC."

***

.......31. In the case of Jagdish Singh v. Amresh, reported 2018 (36) LCD Page 2729, in Para-13, this Court held as under:—

“So far as the contention of learned counsel for the appellant that there is no statutory compliance of Order XLI Rule 31 CPC is concerned, suffice is to observe that the Apex Court in a recent judgment dated 4.8.2017 passed in Civil Appeal No. 9951 of 2017; U. Manjunath Raov.U. Chandrashekhar, has held that the compliance of Order XLI Rule 31 CPC will depend in the facts and circumstances of the case and in case there is substantial compliance of Order XLI Rule 31 no illegality can be attributed. In the present case there is substantial compliance of Order XLI Rule 31 CPC as such the contention raised has no force.”

32. In order to successfully canvass the point of non-compliance of Order XLI Rule 31 CPC, it is not mere non framing of points of determination alone, but consequent failure of justice must also be established occasioned to a party.

33. The purpose and object of incorporating Section 99 CPC is to prevent mischief, which may be caused by the reversal of the decree in a case of this kind. Thus, unless and until the non-compliance of Order XLI and Rule 31 CPC is of such a nature that it affects the merits of the case or the jurisdiction of the Court or the soul of the provision is robbed by not discussing the bare facts, issues arising therefrom, the rival points urged and recording of reasons upon which the judgment is based, till then minor infraction of the aforesaid provision will not give a latitude to a party to assail a judgment and seek its reversal only on this infraction under Section 100 CPC.

34. Needless to say that Rules of procedure though couched in a mandatory format must be given a reasonable construction so that it may not cause an ultimate failure of justice. Thus, merely non-framing of the point of determination without any consequent failure of justice and if the judgment otherwise complies with the mandate of narration of facts, consideration of submissions and recording of reasons as required in law will not cause the aforesaid issue to be termed as a substantial question of law."

65. This Court in order to examine and test the submissions of the learned counsel for the appellants in respect of the requirement of the appellate court to deal with the submissions and record its findings, has meticulously perused the judgment of the lower appellate court and it is found that the lower appellate court has considered every arguments raised by the appellants before the lower appellate court; inasmuch as it has dealt with the plea of ostensible ownership and adverse possession. It also considered the reasons noted by the trial court and gave its own independent reasons why it differed from the findings of the trial court regarding the proof of the Will of Jadu Nath Chatterji and thereafter it considered the various documents on record and also referred to the evidence led by the defendants and on the aforesaid basis it has drawn inferences and recorded its own independent findings.

66. The lower appellate court noticing the fact that the Will of Jadu Nath Chatterji dated 08.10.1929 which is source of title for both the parties and it was admitted to them hence even if the said Will was not proved by examining any attesting witness it would not affect the merits since both the parties admit that the initial owner of the property was Jadu Nath Chatterji and it is from the said Will of 08.10.1929 that the predecessor of both the plaintiffs and defendants have traced their title.

67. Various deeds executed amongst the defendants Sochindra Nath Chatterji and his brother Atindra Nath Chatterji vice versa in shape of a gift deed executed by Atindra Nath in favour of Sochindra Nath Chatterji and all other subsequent deeds of 1966 in favour of the defendants also refers to the said Will and in light of the admitted fact even if the attesting witness was not produced, it can be termed as a fact admitted which may not require any proof. On this count the lower appellate court has considered the evidence on record and then disagreed with the findings of the trial court and recorded its own finding based on its own reasons emerging from the record and the same cannot be termed to be bad or recorded in a cursory manner.

68. From the aforesaid, it cannot be said that the lower appellate court did not advert to the respective contentions or did not look into the evidence on record. Thus, for the aforesaid reason, this Court is satisfied then in so far as the procedural and technical plea raised by the learned counsel for the appellants is concerned, the same does not find favour with this Court.

69. Now coming to the other limb of the submissions of the learned counsel for the appellants that the lower appellate court did not decide the core controversy regarding identification of the property and which could have been done by a Survey Commission and having failed to do so, the findings arrived at by the lower appellate court are perverse.

70. In this regard, if the record is seen, apparently, there are two sets of evidence available on record, one which was filed by the plaintiffs which included the documentary evidence comprising of the two sale deeds executed in favour of the plaintiffs dated 28.12.1982 by Ravindra Nath Chatterji, son of Narendra Nath Chatterji. It also brought on record two deeds (Titamba) to correct the sale deed dated 28.12.1982 incorporating house No.92/146, situate at Gautam Budh Marg. The plaintiffs also filed on record the copy of the lease deed executed by the Nazul Department in favour of the plaintiffs dated 16.08.1985 bearing paper No.Ka 58. It also brought on record the application for compromise filed in Regular Suit No.56 of 1958 alongwith the map indicating the division of the properties amongst the sons of Jadu Nath Chatterji born from the second wife Anand Bala Devi. The plaintiffs also brought on record the copy of the decree passed in Regular Suit No.56 of 1958 marked as paper No.Ga.40. It also brought on record the plaint in suit of Regular Suit No.482 of 1963 which was between Lala Goverdhan Das and Sochindra Nath Chatterji, the written statement filed in the aforesaid suit alongwith the application under Order 6 Rule 17 CPC filed by Sochindra Nath Chatterji and the copy of the application for compromise of the said suit has also been brought on record and are bearing paper No.Ga.33, Ga.34, Ga.35 and Ga.36 which have all been exhibited.

71. The plaintiffs also brought on record the certified copy of the Will of Jadu Nath Chatterji as well as the original lease deed executed by the Nazul Department in favour of Jadu Nath Chatterji relating to the year 1924 marked as paper No.Ga.28 and Ga.29 which have also been exhibited. In order to prove the same Suraj Bhan Agarwal was examined as P.W.1 and Arvind Kumar was examined as P.W.2.

72. On the other hand, the defendants filed the copy of the gift deed dated 07.03.1949 executed by Atindra Nath Chatterji in favour of his brother Sochindra Nath Chatterji bearing paper No.Ga.17. The defendants also filed the certified copy of the sale deed dated 10.08.1966 executed by Sochindra Nath Chatterji in favour of the defendants and in order to prove the same Harvansh Singh, Director of the defendants' company was examined as D.W.1 and Jogendra Singh was examined as D.W.2 who was the Manager with the defendant company.

73. The submissions as to whether there was any confusion regarding the property and that it required proper identification by the Commissioner and in absence thereof whether the findings given by the lower appellate court that apparently the western boundary of the property mentioned in the deed of the defendants is incorrect can be sustained or not.

74. Apparently, what this Court finds is that this issue was not considered at all by the trial court who literally skirted the issue. The lower appellate court has dealt with the same in detail and recorded its own findings. The lower appellate court went ahead and also noticed that the documents which were filed before the trial court was not even exhibited and the same was done by the lower appellate court.

75. Needless to say that the court of first appeal is a final court of fact. Its powers are co-extensive with that of the trial court and in this regard the decision of the Apex Court in Karedla Parthasaradhi (supra) in paragraph-22 has relevance and it reads:-

"22. Mere perusal of the aforequoted finding would go to show that it is based on proper appreciation of evidence and being just, legal and proper, it does not call for any interference by this Court under Article 136 of the Constitution. That apart, the High Court while exercising its first appellate jurisdiction under Section 96 CPC had ample jurisdiction to appreciate the evidence independent to that of the appreciation done by the trial court and come to its own conclusion. Indeed, this being the well-settled principle of law laid down by this Court in several decisions, no elaborate discussion is necessary on this question."

76. Similar sentiment has been echoed by the Apex Court in Tajender Singh Ghambhir (supra) wherein paragraph-11, it held as under:-

"11. The High Court was also in error in holding that the deficiency in court fee in respect of the plaint cannot be made good during the appellate stage. In this regard, the High Court, overlooked the wellknown legal position that an appeal is continuation of the suit and the power of the appellate court is coextensive with that of the trial court. It failed to bear in mind that what could be done by the trial court in the proceeding of the suit, can always be done by the appellate court in the interest of justice."

77. This Court notices that in so far as the proposition which have been laid down by the Apex Court which has been cited by the counsel for the parties. There can be no two views about it, however, in the given facts and circumstances it needs to be seen whether they have been complied or are attracted in the instant case.

78. Since the parties have been litigating since 1984 and the instant second appeal has been pending before this Court since 1988, therefore, in order to test the submissions the Court invokes its power under Section 103 CPC only to satisfy itself whether the findings are based on appreciation of evidence as recorded by the lower appellate court or not.

79. In light of the documentary evidence which has been filed by the parties, it would be seen that a suit was instituted by Lala Goverdhan Das against Sochindra Nath Chatterji claiming a decree of accounting on the premise that Atindra Nath Chatterji had sold his share in favour of Lala Goverdhan Das by means of the sale deed dated 23.10.1951 though this deed is not on record but the plaint, written statement and the judgment passed in Regular Suit No.482 of 1963 has been placed on record and the said documents have also been exhibited. These documents assumes significance for the reason that while Lala Goverdhan Das had instituted the suit, in paragraph-1, it has given the boundaries of the property in question. Sochindra Nath Chatterji while his filing the written statement had clearly denied the boundaries as mentioned in the said plaint of Regular Suit No.482 of 1963 thereafter Sochindra Nath Chatterji also filed an application for amendment in the written statement and the proposed paragraphs30, 31, 32, 33 gain importance for the reason that Sochindra Nath Chatterji clearly stated that the boundaries as mentioned by Lala Goverdhan Das related to the entire house No.266 and the correct boundaries have been mentioned as in east house of Amrendra Nath Chatterji, west Latouche Road, north house of Dr. Pathak in south house of Amrendra Nath Chatterji and thereafter Jadu Nath Sanyal Road has been given. Sochindra Nath Chatterji further clarified that the portion which was bequeathed to him was as under:-

East : house of Narendra Nath Chatterji.

West : house of Narendra Nath Chatterji.

South : house of Amrendra Nath Chatterji and thereafter Jadu Nath Sanyal Road.

North : house of Dr. Pathak.

80. It will be relevant to recall that Amrendra Nath Chatterji, Narendra Nath Chatterji were the sons of Jadu Nath Chatterji born from his second wife Anand Bala Devi.

81. Apparently, if two boundaries which have been shown in the application for amendment by Sochindra Nath Chatterji, it would completely match the other documents filed by the plaintiffs including thier version.

82. At the cost of repetition, it may be noted that Jadu Nath Chatterji had only bequeathed part of house No.266 which was purchased by him in terms of the sale deed of 1908. The remaining part and all other properties were bequeathed to the sons of Jadu Nath Chatterji born from his second wife. In light of the aforesaid, the picture that emerges is that in so far as the entire house no.266 is concerned, a part of which was bequeathed to the defendants the boundaries on the northern side indicates the house of Dr. Pathak and this is undisputed, the western boundary indicates the existence of Gautam Budh Marg/Latouche Road, southern boundary indicates the house of Amrendra Nath Chatterji and thereafter Jadu Nath Sanyal Road and on the eastern side is the house of Amrendra Nath Chatterji which has been shown.

83. Now if this is the boundaries of the full house and only part was bequeathed to the grand sons of Jadu Nath Chatterji born from his first wife, it would indicate that within this entire boundary only part was bequeathed to the grand son of Jadu Nath Chatterji who were the sons of Jitendra Nath born from the first wife. However, if the boundaries which have been noticed in lease deed dated 1924 is seen alongwith boundaries mentioned in the sale deed executed by Ravindra Nath Chatterji, son of Narendra Nath Chatterji in favour of the plaintiffs and as mentioned in Suit No.482 of 1963 that too at the behest of the Sochindra Nath Chatterji who is predecessor of the defendants. Also noticing the Commissioner's report marked as exhibit-18 which also has a map annexed thereto which was part of Suit No.482 of 1963 and the said map clearly demarcates the portion including the first floor and it also mentioned the tenant occupying the said portion.

84. It will be worthwhile to notice that the suit primarily filed by the Lala Goverdhan Das was on the premise that he had purchased the share of Atindra Nath Chatterji and thus became a co-sharer with Sochindra Nath Chatterji. Since the property in question was tenanted and it was Sochindra Nath Chatterji who was realizing the rent but did not account for the same with Lala Goverdhan Das. It is in view thereof that the suit for accounting was filed which came to be decreed in favour of Lala Goverdhan Das by means of judgment and decree dated 10.03.1966.

85. The aforesaid documentary evidence gives a clear picture that within the entire house No.266, the part which was bequeathed to the defendants was towards the eastern side and sandwiched between the part bequeath to the children of Jadu Nath Chatterji born from his second wife. The property bequeathed to Sochindra Nath Chatterji on the western side had the portion of Narendra Nath Chatterji thereafter Latouche Road and on the eastern side it was the property of Amrendra Nath Chatterji, while in the northern side it was the house of Dr. Pathak while the southern side mentioning the house of Amrendra Nath Chatterji and thereafter Jadu Nath Sanyal Road.

86. It is the portion which was given to Narendra Nath Chatterji which also stands corroborated by the suit filed by the heirs of Jadu Nath Chatterji born from his second wife which came to be decided in a compromise in Suit No.56 of 1958 and the map annexed thereto which clearly matches with the Commissioner's report and the map brought on the record marked as exhibit-18 relating to Suit No.482 of 1963. The said map which is part of exhibit of 18 would also indicate the status of the father of the plaintiffs Bahauri Lal who was shown as a tenant on the first floor and on the ground floor of the said portion, the tenant Kanpur Daily Goods Career was also shown, thus, this also indicates and corroborates the respective pleas that both the plaintiffs and the defendants were earlier the tenants and thereafter the plaintiffs purchased the property in the year 1982 whereas the defendants had purchased the property from Sochindra Nath Chatterji on 10.08.1966. Apparently, Sochindra Nath Chatterji could only sell the portion which vested with him in terms of the Will of Jadu Nath Chatterji.

87. It is in this context, that another deed, which was filed by the defendants dated 13.06.1939 which was executed by Sochindra Nath Chatterji in favour of his brother Atindra Nath Chatterji wherein recitals referred to the Will of Jadu Nath Chatterji dated 08.10.1929 and thereafter it has also mentioned the boundaries which are the boundaries of the full house No.266 but in the later part of the deed it has clearly been stated that vendee (referring to Atindra Nath Chatterji will enjoy all easements and other rights appurtenant existing since the life of Jadu Nath Chatterji. This included the right of way through the adjacent house towards the west belonging to M/s. Narendra Nath Chatterji, Harendra Nath Chatterji, sons of the Jadu Nath Chatterji as well as the right of way through the adjacent house towards the south belonging to Narendra Nath Chatterji, Amrendra Nath Chatterji and Surendra Nath Chatterji.

88. This would go on to establish categorically that the portion which was bequeathed to Sochindra Nath Chatterji and Atindra Nath Chatterji, it was sandwiched, between the property which was bequeathed to Narendra Nath Chatterji, Amrendra Nath Chatterji on the eastern, western and the southern side and it also provided a right of easement to use the way. This deed is of the year 1939 executed by Sochindra Nath Chatterji in favour of his brother Atindra Nath Chatterji and this also corroborates the fact that in the suit filed by Lala Goverdhan Das bearing Regular Suit No.482 of 1963 Sochindra Nath Chatterji had given the boundaries of the full house No.266 and also referred to that part of house No.266 which was bequeathed by Jadu Nath Chatterji in their favour. It is for the aforesaid reason that it would indicate that when Atindra Nath Chatterji executed a gift in favour of Sochindra Nath Chatterji, it also conveyed the easement attached to the said land.

89. Apparently, the sale deed executed by Sochindra Nath Chatterji in favour of the defendants on 10.08.1966 which has been brought on record as paper No.C-46 clearly states that only half portion of the pakka house has been sold which was part of old municipal No.266 also referring to the Will of Jadu Nath Chatterji and this is in consonance with the boundaries of the entire house No.266 and not the part which was bequeathed by Jadu Nath Chatterji in favour of Sochindra Nath Chatterji and Atindra Nath Chatterji.

90. At this juncture, it would also be relevant to refer to the evidence of the defendants namely Harvansh Singh the Director of the defendant company and Jogindar Singh who was the Manager of the defendant company. The have merely narrated the facts of the plea taken by them in the written statement and the counter claim but clearly deposed that they had not seen the documents of title of Sochindra Nath Chatterji from whom they purchased the property. It only stated that they had seen the documents and it was found that Sochindra Nath Chatterji was the owner and they purchased the same without verifying the exact boundaries. They were cross-examined to ascertain whether they knew about the previous title holder to which they expressed ignorance. Thus, from the perusal of the deposition of D.W.1 and D.W.2, prima facie, it indicates that they do not have any information and knowledge regarding the facts as to how the property had been treated and the house which was bequeathed to Sochindra Nath Chatterji and Atindra Nath Chatterji and Amrendra Nath Chatterji who were sons of Jadu Nath Chatterji from the second wife.

91. Since the lower appellate court has considered the deeds and the documents available before it and noticing the evidence of the defendants which was quite sketchy except to the limited extent of having purchased the property and execution of the deed in their favour, it found that the defendants were unable to trace their right or to explain the dispute regarding boundaries and seek the eviction of the plaintiffs, the lower appellate court has looked into the documentary evidence which was not disputed and thereafter it has drawn its inferences which support the case of the plaintiffs and therefore it cannot be said that the lower appellate court has committed an error in failing to scrutinize the evidence but on the contrary its reasons are borne out from the record which support the version of the plaintiff.

92. As already noticed above, this Court in order to test the submissions of the learned counsel for the appellants also took a glance at the depositions and in light of the documentary evidence which was on record which were documents relating to more than 20 years from the date of institution of the suit and the parties were also entitled to benefit under Section 90 and 90-A of the Evidence Act. It is in this light that the lower appellate court held that the western boundary as mentioned by Sochindra Nath Chatterji in the deed executed in favour of the defendants were erroneous. This is apparently on account of the fact that all the deeds and other corroborating documents including the documents relating to Regular Suit No.482 of 1963 as well as relating to Regular Suit No.56 of 1958 alongwith the map clearly gives credence to the case of the plaintiffs and to that extent this Court does not find that there is any error committed by the lower appellate court to give its own independent findings on the basis of the evidence available.

93. At this juncture, it will also be relevant to notice that in the deposition made by the D.W.1 and D.W.2, they had expressed their ignorance in respect of the chain of title and for the said reason if the lower appellate court did not refer to the said oral statement but dealt with the documentary evidence in detail and had drawn inferences which are necessarily a question of fact, it cannot be said that the decision rendered by the lower appellate court falls foul in context with Section 96 read with Order 41 Rule 31 CPC.

94. This Court further finds that the defendants had sought a counter claim against the plaintiffs treating them to be the tenants. However, this plea could not be proved at all; inasmuch as the defendants had purchased the property on 10.08.1966. It is also the admitted case at an earlier point of time Bahauri Lal, father of the plaintiffs, was a tenant on the upper portion and on the ground floor the defendants were present. Had the plaintiffs been the tenants then naturally they would have paid rent to Sochindra Nath Chatterji or Lala Goverdhan Das who had purchased part of the property. There is nothing to show that at any point of time the rent was realized by Sochindra Nath Chatterji or Lala Goverdhan Das from the plaintiffs or their father thus it was a bald plea which was not substantiated. Moreover, even if having purchased the property on 10.08.1966 the defendants did not make any demand of rent from the plaintiffs and it is only once the plaintiffs had filed the suit that the defendants took this plea in their counter claim but there is nothing on record in shape of evidence as to when the demand for rent was made or the tenancy of the plaintiffs was terminated.

95. Since 1966 till the institution of the suit in the year 1984 more than 18 years had passed but nothing was brought on record to indicate that there was any relationship of landlord and tenants between the defendants and the plaintiffs. On the other hand, if the evidence is seen, it would be found that even in the suit instituted by Lala Goverdhan Das bearing Regular Suit No.482 of 1963 the Commissioner Report which was furnished with the map indicated the occupation of various tenant and it also indicated the tenancy of Bahaouri Lal on the first floor. It was also noticed that the portion of which Bahouri Lal was in occupation was the first floor. The defendant was occupying some part on the ground floor thereof. Once in terms of the property which was demarcated amongst the sons of Jadu Nath Chatterji from his second wife who made a division of the property which was in pursuance of the Regular Suit No.56 of 1958, the same came in the share of Narendra Nath, son of Jadu Nath Chatterji born from his second wife and it is this portion which was sold by Ravindra Nath Chatterji, son of of Narendra Nath Chatterji in favour of the plaintiffs, who were earlier the tenants and thereafter purchased the property and by virtue of the transfer made by Ravindra Nath Chatterji to the plaintiffs, the defendants tenancy also stood transferred.

96. All these facts go on to establish the case of the plaintiffs and therefore this Court finds that no error could be found in the decision of the lower appellate court while decreeing the suit and dismissing the counter claim by means of its judgment and decree dated 18.11.1988. Thus, in light of the pleadings which were available on record and the evidence both oral and documentary evidence, the findings have been returned by the lower appellate court from the consideration of the documents which is an inference drawn of fact which this court is not inclined to interfere with in exercise its power under Section 100 CPC.

97. In so far as the plea raised by the defendants of ostensible ownership and adverse possession is concerned, this Court finds that there was no clear pleadings nor evidence in so far as adverse possession is concerned. The issue of adverse possession was considered by this Court in the case of D. P. Misra Vs. S. D. Singh; 2019 SCC Online Alld. 1838 and Abdul Salam and others Vs. Imrana Siddiqui and others; 2019 SCC Online Alld. 3924.

98. In order to arrive at a finding regarding adverse possession, it was absolutely essential for a person raising such a plea to plead and prove the following ingredients:-

(a) who was the real owner and on what date, the person raising the plea of adverse possession came into possession;

(b) what was the nature of his possession;

(c) whether the factum of possession was not known to the other party;

(d) how long his possession has continued; and.

(e) his possession was open and undisturbed.

99. Needless to say that the said plea of adverse possession was a mutually destructive as the defendants on one hand claimed title and on the other is said to have perfected his rights by adverse possession but even the ingredients as noticed above were neither pleaded nor proved and moreover the defendant did not even admit the plaintiffs as owners thus the said plea of adverse possession looses steam.

100. Regarding the issue raised by the learned counsel for the appellants as to the plea of ostensible ownership is concerned, this Court finds that the necessary ingredients for the aforesaid plea of ostensible ownership is also to be properly pleaded. In this regard, the decision of the Apex Court in Hardev Singh Vs. Gurmail Singh (2007) 2 SCC 404, [LQ/SC/2007/130] in para 8 to 15 it has been held as under:-

"8. The distinction between the said two provisions is apparent.

9. Application of Section 41 of theis based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

10. The ingredients of Section 41 of theare:

(1) the transferor is the ostensible owner;

(2) he is so by the consent, express or implied, of the real owner;

(3) the transfer is for consideration;

(4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

11. Section 43, on the other hand, embodies a “rule of feeding the estoppel” and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation. (See Jumma Masjid v. Kodimaniandra Deviah [AIR 1962 SC 847 [LQ/SC/1962/4] : 1962 Supp (2) SCR 554].).

12. In order to get the benefit of the said provision, the conditions which must be satisfied are:

(1) the contract of transfer was made by a person who was competent to contract; and.

(2) the contract would be subsisting at the time when a claim for recovery of the property is made.

13. However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under Section 23 of the Contract Act. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The “rule of feeding the estoppel” shall apply in absence thereof.

14. The doctrine of feeding the estoppel envisages that “where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel”.

15. The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Sections 41 and 43 of theis apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect."

101. This Court finds by applying the aforesaid proposition that this plea was also not sustainable and for the said reason the decision of the lower appellate court in not accepting the plea of ostensible ownership before it cannot be faulted.

102. Lastly, the plea raised by the appellants that once the relationship of landlord and tenant was not established then a decree of eviction cannot be passed by the civil court rather a decree of possession must be sought which has not been done is also misconceived for the reason that in a suit on the basis of contract of tenancy the question of title need not be gone into and if the plaintiff fails to prove the relationship, the Court is justified in dismissing the suit on that basis. However, where the question of title has been gone into and the parties were at issue on the point and had led evidence then it is not necessary to direct the plaintiff to file another suit for possession on the basis of title. This proposition has been considered by this Court in a decision reported in 1976 (74) ALJ Page 748 Smt. Rama Shankar vs. Noor Mohammed, wherein the question considered by this Court was whether the plaintiff could get a decree on the basis of title even though he had failed to prove the contract of tenancy. This Court by considering the decisions of the Hon'ble Supreme Court held as under:-

""7. In Balmakund vs. Dalu, reported in 25 Allahabad 498, while dealing with the above question, the Full Bench held: "The fact that no distinct issue as to the plaintiff's title had been framed could not be construed to the prejudice of the plaintiff inasmuch as the issue had in fact been tried, and it could not be said that the defendant had been in any way taken by surprise."

8. The case, in hand, stands on still better footing. In this case, there was a definite pleading in the written statement denying the title of the plaintiff and the setting up of the title by the defendants themselves on the basis of adverse possession. There were definite pleadings of the parties and the definite issue on the question of title and the trial court recorded findings on those issues. The finding of the trial court, as stated earlier, on the question of adverse possession was not reversed by the lower appellate court and in such a case, the Full Bench case will squarely apply and the plaintiff's suit could be decreed on that basis.

9. In Abdul Ghani vs. Musammat Babni, reported in 25 Allhabad 256, the defendant denied the tenancy set up by the plaintiff and asserted that she had been in adverse possession for a period of seventeen years. The finding of the appellate Court was that the plaintiff was the owner of the house and that the defendant occupied the house as a friend with the permission of the plaintiff and that the defendant had never before this asserted her title to the house, and that her possession was permissive. On these findings, it was held by the Full Bench that the plaintiff was entitled to a decree for possession notwithstanding that his case had been that the defendant was his tenant.

10. In Bhagwati Prasad vs. Chandramaul, AIR 1966 SC 735 [LQ/SC/1965/268] , dealing with such a situation, the Supreme Court observed:

"Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot overrule the legitimate considerations of substance."

11. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it If it appears that the parties did not know that the matter was in issue at the trial and one of them was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would into duce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another".

In view of the principles laid down by the Supreme Court, the suit for possession was decreed on the basis of title although the plaintiff had failed to prove the contract of tenancy. The Supreme Court quoted with approval the aforesaid two Full Bench decisions.

12. On the analysis of the various authorities, there is so manner of doubt that the Court can pass a decree for possession on the basis of title even if the plaintiff had failed to prove the contract of tenancy put up by him provided no prejudice is caused to the other side. In the instant case, both the parties led evidence on the question of title and there was a definite issue framed on the question of title. Therefore, there is no question of any prejudice being caused to the defendants. In these circumstances, the suit should have been decreed on the question of title though the plaintiff failed to prove the contract of tenancy.

13. Learned counsel for the respondents, however, contended that in a suit for possession on the basis of a contract of tenancy, it was not at all necessarily for the lower appellate court to record any finding on the question of title or to decree the suit on the basis of title, and, in support of his contention, he placed reliance on The Subsagar Muncipal Board Sibasagar vs. Dayal Chandra Harthakur, AIR 1971 Assam 155. There is no quarrel with the proposition of law laid down in that case. In a suit on the basis of the contract of tenancy, all that need he gone into whether there is a contract of tenancy between the parties and if the plaintiff had failed to prove then the court could dismiss the suit on that basis and it is not necessary to go further in, but in a case where the question of title has also been gone into and the parties were at issue on the point and the parties had led evidence, it is not necessary to direct the plaintiff to file another suit for possession on the basis of title and the suit can be decreed on the basis of the findings recorded by the courts below. The only guiding consideration is that no prejudice should be caused to the other side. In the instant case, I have already observed that there is no question of prejudice to any party. Law courts always abnor the multiplicity of suit."

This proposition has also been relied upon by this Court in the case reported in 1979 (5) ALR Page 24 - Panna Lal vs. Sharafat Ali. Thus, in view of the clear pronouncements of this Court, the other submissions of the learned counsel for the appellant also fails."

This proposition was followed by this Court in D. P. Misra (supra), as noticed above.

103. Thus, for the aforesaid detailed discussions, this Court finds that the appeals are sans merit and are accordingly dismissed. The judgment and decree dated 18.11.1988 passed in Regular Civil Appeals No.168 and 169 of 1987 is affirmed. As a result, the Suit No.323 of 1984 shall stand decreed and the counter claim of the defendants shall stand dismissed. Costs are made easy. The record of the lower court shall be returned expeditiously.