Judgment 1. THE decision of this appeal by the plaintiff from an appellate judgment and decree of reversal turns on the consent or lack of consent by the appellant to the construction of a bundh (an embankment) by the defendants, the respondents here,-a bundh which, as is now clear, has encroached upon the appellant's land, plot no. 259, a bheri, to the extent of 151/2 cottahs. The respondents' land is plot no. 256, another bheri. "256" is on the immediate west of "259". 2. IT is hardly necessary to restate facts either finally disposed of or no longer insisted upon. Suffice it to say that the 151/2 cottah land in controversy here does appertain to plot no. 259 which belongs to the appellant. In other words, the appellant has title to aforesaid land. On that the court of first instance and the court of appeal below are agreed, What they are not agreed on is the question of consent to the construction of the bundh. The first court holds that no permission was taken ever of the appellant before the construction was made. More, there was no joint survey either before that; and if there was any, the respondents having erected the bundh in the manner they have done have not adhered to what was agreed upon. The court of appeal below holds the opposite. It takes into consideration: joint survey at the instance of both the parties before the construction of the bundh and the fixing of pegs demarcating the boundary between "256" and "259", as it finds the appellant withholding the report of his amin, the respondents having spent Rs. 20,000 or Rs. 25,000 for the bundh (which they would not have done without the consent forth coming), the bundh proving helpful to the appellant's bheri, and the appellant himself having been there with a view to watching whether or no the bundh in the making was trenching on his land. Having done so, the appellate judge finds on "the balance of probabilities" that the appellant had consented to the erection of the bundh encroaching 151/2 cottahs of his land (page 51 of the paper-book) 3. IT is now for decision if this finding can stand, Mr. Having done so, the appellate judge finds on "the balance of probabilities" that the appellant had consented to the erection of the bundh encroaching 151/2 cottahs of his land (page 51 of the paper-book) 3. IT is now for decision if this finding can stand, Mr. Ghose the learned advocate for the appellant, contends that it cannot It cannot, because consent, which means free consent in full knowledge and comprehension of the thing consented to, not consent by stealth, not consent caused by mistake, (vide section 14 of the Contract Act), is not a question of fact, but a quention of law. And there, Mr. Ghose concludes, the judge falls into an error of law in drawing, as he has drawn, the inference of the appellant's consent. Mr. Sen, the learned advocate for the respondents, contends, on the other hand, that whether or no the appellant had consented to the construction of the bundh is a question of fact and that however erroneous the judge's finding may be (not that it is erroneous, Mr. Sen hastens to add), it is not for me to disturb it, 4. WITH great respect for Mr. Sen, consent need not invariably be a question of fact. Each case will depend on its facts and circumstances. And there can be no formula of universal application. If, for example, consent is given under a mistake an illustration Mr. Ghose takes-it becomes a question of law to be determined even in a second appeal. The determination will be whether or no it has been given under a mistake. Only when consent is free, it becomes legal. Consent as 1 see here is a question of legal inference from the facts found. So, if the inference is wrong, that deserves to be upset, betraying as it will an error of law. The authorities on this point are ample and clear. To refer to two only, (1) Ramgopal v. Shamskhatun, I. L. R. 20 Calcutta 93 at page 98, a Privy Council decision, lays down inter alia: the facts found need not be questioned; it is the soundness of the conclusion from them (facts found)that is in question and this is a matter of law. To refer to two only, (1) Ramgopal v. Shamskhatun, I. L. R. 20 Calcutta 93 at page 98, a Privy Council decision, lays down inter alia: the facts found need not be questioned; it is the soundness of the conclusion from them (facts found)that is in question and this is a matter of law. Again, as held by the Privy Council in (2) Lala Beni Ram v. Kundan Lal, 26 I,a. 58, acquiescence (how far is consent from that is riot a question of fact but of legal inference drawn from facts found. That apart, many of the facts from which consent is inferred here are vitiated by errors of law. So consent becomes all the more a question of law. And I am entirely within my jurisdiction to question the soundness of the conclusion drawn by the learned appellate judge. To say so is not to run away from the long line of decisions where it has been held that it is not for the High Court to go into questions of facts, however erroneous the findings recorded by the courts of facts may be. Starting from, say, the Privy Council decision in (3) Musammat Durga chowdhurain v. Jawhar Singh, (1890)17 I. A. 122, (a case under section 584 of the then Code corresponding to section 100 of the present code), to (4) Madamanchi ramappa and another v. Muthaturu bojjappa, A. I. R. 1963 S. C. 1633, it is there to be seen that the High Court has not the jurisdiction even to entertain a second appeal on the ground of an erroneous finding of fact, however gross the error may be. To do so will be introducing a gambling element in the litigation and confusion in the mind of the litigant public, as the Supreme court warns in (5) Deity Pattabhiramaswamy v. S. Hanymayya, A.I.R. 1959 S.C. 57, and "re-warns" in Madamanchi ramappa's case ante in 1963. But I am not going that way. All I am doing is to question the soundness of a legal conclusion drawn from facts found and to question too the most of the facts found in error of law. 5. TO the latter aspect first. The amin's report not produced by the appellant would have shown at what point of time the joint survey was made-before or after the construction of the bundh-and with what result. 5. TO the latter aspect first. The amin's report not produced by the appellant would have shown at what point of time the joint survey was made-before or after the construction of the bundh-and with what result. So rightly enough the judge draws and presumption adverse to the appellant. But there he stops. The respondents also have not produced "papers'1 they have "to show" the boundary between the two bheris"- a boundary which was "ascertained before the erection of the bundh" (p. 41 of the paper book. Nor have they produced their accounting books. They would have shown, no less than the appellant's amin's report, the timing of the joint survey. And the survey "papers" would have shown the result thereof. But the judge draws no presumption adverse to them, though no explanation is forthcoming for their non-production. Worse, Cbintaharan, the respondents' first witness, speaks with one voice in his evidence-in-chief (no survey paper was maintained by: their amins) and with another voice in his " cross-examination (there are papers: p. 41 of the paper book. No doubt, under section 114 of the Evidence Act, the judge may draw a presumption. Not that he must: but it is for him to act judicially, not capriciously, making fish of the appellant and flesh of the respondents. I therefore see in it an error of law which spoils his finding of a joint survey followed by the fixing of pegs in token of the dividing line between "256" and "259", and that too before the erection of the bundh. 6. THE respondents having expended some Es, 25,000 for the bundh has weighed with the judge a lot. Without the consent of the appellant, would they have spent so much ? Mr. Ghose challenges this sort of an approach leading to a faulty conclusion. He submits that Rs.25,000, if that, was not expended for the portion of the bundh covering 151/2cottah land of the appllant, but for the whole of it; a much bigger area-nearly 1/5th of a mile long. Indeed, the whole of the bundh is some 1000 ft. long, some 18 cubits broad at the base, 10 cubits or so broad at the top and, say, 6 cubits high. Necessarily, therefore, Mr. Ghose concludes, the expenses for this much of the bundh. would be much less: a negligible fraction of Rs.25000. But there is little law in it. Indeed, the whole of the bundh is some 1000 ft. long, some 18 cubits broad at the base, 10 cubits or so broad at the top and, say, 6 cubits high. Necessarily, therefore, Mr. Ghose concludes, the expenses for this much of the bundh. would be much less: a negligible fraction of Rs.25000. But there is little law in it. And I do not reckon it. But what I do reckon is that the judge overlooks section 114 of the Evidence Act again, when he considers the question of expenses incuired for the bundh. The entries in the accounting books would have shown the expenses. And that makes another error of law. It is said by the judge that the bundh is helpful to the appellant's bheri. No doubt that can be said So what? Will that confer a legal right on the respondents to encroach upon the appellant's land and to erect a bundh covering; not a few inches but 151/2 cottahs thereof ? This aspect of the law the judge does not consider To turn a blind eye to it is to commit an error of law. 7. NOW to the conclusion drawn by the judge from facts found. The finding of a joint survey and the fixing of pegs before the construction of the bundh being invalidated due to an error of law, simply because the appellant goes over there and watches the work of construction so that there may be no encroachment his consent to the erection of the bundh as it stands does not necessarily follow. No surveyor he is. He does not go there with a surveyor either or with a theodolite and a map. "256" and "259" have no dividing line between themselves. So, watching with a naked eye will not tell him if his adversaries have been overstepping the limits of their boundary. Watching so and not consenting to the encroachment may go together. And the fixing of pegs after demarcation of the boundary line between "256" and "259" before construction of the bundh, even if taken for granted, carries its own refutation. If that was that, amins of both sides participating with their tools, how is it then that "256" travels into "259" to the extent of a little less than a bigha ? Every survey keeps a margin for errors. But a difference of 151/2 cottahs? If that was that, amins of both sides participating with their tools, how is it then that "256" travels into "259" to the extent of a little less than a bigha ? Every survey keeps a margin for errors. But a difference of 151/2 cottahs? No allowable margin is that. No allowable margin can it be, under any method of surveying-be it with a plane table, a prismatic compass or a theodolite. Now, let it be taken for granted too that the appellant does consent to the erection of a bundh on the foot of the pegs so fixed and that the judge's finding to that end is free from any error of law. Still can you read such consent as free consent to his land being encroached upon by 151/2 cottahs does he say: 'here are 151/2 cottahs of my plot no. 259. Do make a bundh upon it'. It is a consent given on faulty data and under a mistake. It is a consent given under the belief that the pegs stand where "256" ends and "259" begins. But this belief is wrong and proved to demostration to be wrong. It is therefore no consent in the eye of law. And herein lies the strength of Mr. Ghose's contention as much as the weakness of Mr. Sen's, this becomes a question of law within the bounds of section 100 of the Code of Civil Procedure, not a question of fact. And, law, I am relieved to find, marches with common sense which forbids a prudent man to believe that a. man consents to his neighbour building a bundh by encroaching upon his own land to the extent of 151/2 cottahs. 8. NOR can it be said that the appellant stands by Apart from the fact that mistakes feed not estoppel, the appellant brings his action soon enough: on June 30, 1948, the bundh having been, completed by May 15, 1948, or thereabouts, (Baisakh, 1355 B. S.), as the respondents case is and as both the judges find. May 15 to June 30 is 1. month 15 days. You cannot expect a person to make a bee-line for the nearest court the very day his rights are invaded upon. What I find therefore is total lack of consent law knows of, of free consent in full knowledge and comprehension of the thing consented to. Incidentally, why damages of Rs. month 15 days. You cannot expect a person to make a bee-line for the nearest court the very day his rights are invaded upon. What I find therefore is total lack of consent law knows of, of free consent in full knowledge and comprehension of the thing consented to. Incidentally, why damages of Rs. 460 the judge awards if the appellant had consented to the erection of the. bundh ? Who prays the judge for that ? If the appellant consents to the use of his land for the bundh, thereby he does not sell. But the judge does in a manner. 9. THUS, the only point urged before me in support of the appeal succeeds. And the appeal succeeds too. Be it allowed. The judgment and decree of the subordinate judge are set aside and those of the Munsiff restored, save that the respondents are allowed 3 months' time from today to remove their bundh from the suit land Should they herein fail, the appellants shall recover possession thereof in execution by having the bundh removed from the suit land at the respondents' costs. The appellant do get his costs throughout. Leave to appeal under clause 15 of letters Patent has been asked for. It is refused.