Judgment 1. This appeal under Sec.100 of the Code of Civil Procedure by Chela Mery and Agnes, who were Defendants First Party in the trial court, is directed against the judgment and decree of the learned Additional Subordinate judge in Title Appeal No. 107/2 of 1963/70, whereby he reversed the judgment and decree of the trial court. 2. In order to appreciate the points of law involved in this appeal, it will be necessary to briefly state some material facts. One Sheikh Lal Mohammed was the owner of Survey Plots Nos. 327 and 328 of Khata No. 130, situated in Mohalla Aggarwa, in the Town of Motihari. Shaikh Lal Mohammad had constructed three houses on the aforesaid land separately, but attached to one another. On his death, his son Shaikh Abdul Ralb (defendants second party), came in possession of the three houses, bearing Holding Nos. 115, 116 and 117 of the Motihari Municipality. On the 5th October, 1939, Shaikh Abdul Rab sold the house on Holding No. 115 to Bibi Khatoon, who was plaintiff respondent first party in this Court. On the 15th September, 1950, by a registered deed (Ext. A), Shaikh Abdul Rab, namely, respondent No. 2, sold the remaining two houses on Holding Nos. 116 and 117 to the appellants. The said sale under Exhibit A was only in the name of Appellant No. 2, Agnes daughter of appellant No. 1. Subsequently, a suit had to be instituted by Bibi Khatoon, impleading the appellants as defendants first party and Shaikh Abdul Rab as defendant second party. In the suit, she sought for a declaration that the lands described in Schedule I of the plaint are the common walls and both parties had got the right only to repair them and that they had no right either to raise the walls or to put any pucca roof on the same. It was further prayed that the defendants first party be restrained from further raising the walls and making any construction over the same. 3. The suit was mainly contested by defendants first party. On the pleadings of the parties, as many as six issues were framed. Out of them, Issues Nos. 3 and 5 are important for the purpose of this appeal. The said Issues Nos. 3 and 5 read as follows:- "3. 3. The suit was mainly contested by defendants first party. On the pleadings of the parties, as many as six issues were framed. Out of them, Issues Nos. 3 and 5 are important for the purpose of this appeal. The said Issues Nos. 3 and 5 read as follows:- "3. Whether the wall described under Schedule I of the plaint is a common wall as alleged by the plaintiff?" "5. What are the respective rights of the parties if there be any, with respect to the wall as described in Schedule I of the plaint?" 4. The trial court has considered those issues together. According to the case of the plaintiff, there was an agreement between her (the vendee) and her vendor (respondent No. 2), as contained in the sale-deed (Ext. 1) that the two walls, marked A and B in the sketch map attached to the plaint, were common walls of the houses bearing Holding Nos. 115 and 116. Respondent No. 2, under the terms of the agreement had no right to raise the said walls or to put any construction over the same. According to the plaintiff, if any such construction was made, that had to be demolished by the order of the court. 5. According to the defendants first party, namely, the appellants, the term of agreement in Exhibit I was that out of the three walls indicated in the map attached to the written statement filed on their behalf, indicated by letters AB, BC and CD only two walls, namely, BC and CD were common. BC wall runs east to west, whereas CD wall runs north to south. According to defendants first party, AB wall was exclusively their all. 6. trial court, after considering evidence on the record, found that it appears from a reference to Exhibit 1 that `the wall, i.e., AB wall which runs north to south and which is mentioned in Schedule I of the plaint is not the common wall. It, however, found that the other two walls, i.e., BC and CD walls are common walls. In other words it found that AB wall is the exclusive wall of the defendants and it dismissed the suit filed by the plaintiff. 7. Aggrieved by the judgment and decree of the trial court, Bibi Khatoon preferred an appeal. It, however, found that the other two walls, i.e., BC and CD walls are common walls. In other words it found that AB wall is the exclusive wall of the defendants and it dismissed the suit filed by the plaintiff. 7. Aggrieved by the judgment and decree of the trial court, Bibi Khatoon preferred an appeal. During the pendency of the appeal she died and, therefore, her heirs were substituted in her place. 8. The appellate court, however, allowed the appeal and set aside the judgment and decree of the trial court. It will be relevant to quote the findings of the lower appellate court in Paragraphs Nos. 11 and 12 of the judgment: "11. From these observations it seems clear to me that the walls AB, BC, CD, which would have been one wall if it were straight, are common walls, except for its direction of the common walls is north to south. The learned Munsif, it appears, has viewed the map from the tail end and so he has fallen into an error in observing that the wall BC and CD are only common walls. As mentioned before there is nothing except the defendants latrine by the side of the wall CD but there are many structures of both the parties on both sides of the wall AB. So it would be travesty of truth if this wall AB is not regarded as common wall. 12.Considering all the facts, evidence and circumstances it appears to me that the disputed wall AB (as shown in map Ext. 2), is also a common wall and belongs to both the parties and defendant has no exclusive right over it and plaintiff is entitled to the decree sought for." 9. Mr. Kaushal Kishore Sinha, learned counsel appearing for the appellants, has assailed the judgment and decree of the appellate court and has raised the following points for consideration of this Court: (i) The court below has erred in granting more relief than sought for by the plaintiff in her plaint, (ii) The appellate court has erred in relying upon inadmissible evidence as binding on the parties. (iii) The appellate court has erred in setting aside the judgment and the decree of the trial court which were based on solid evidence on the record, for example, admission of P.W. 2, contents of Ext. (iii) The appellate court has erred in setting aside the judgment and the decree of the trial court which were based on solid evidence on the record, for example, admission of P.W. 2, contents of Ext. 1, existence of drain by the side of the CD wall, and construction of pucca building in continuation of AB wall by respondent No. 2. According to the learned counsel for the appellants, the lower appellate court has not considered these points while setting aside the judgment and the decree of the trial court. (iv) The appellate court has erred in not correctly interpreting the contents of Exhibit 1. 10. As regards point (i) learned counsel for the appellants drew my attention to the plaint. By reference to the plaint it is clear that the plaintiff had no claim with regard to the CD wall. Learned counsel appearing on behalf of the respondents first party had conceded that there was no claim over CD wall. Learned counsel for the appellants, in this connection, also relied upon a decision of the Supreme Court in the case of Raruha Singh V/s. Achal Singh ( AIR 1961 SC 1097 ), wherein it was observed that the appellate court should not make out a new case, which was not pleaded by a party. A similar view was taken in the case of the State of Bihar V/s. Kamakshya Narain Singh (1961 BLJR 446). In my view, therefore, the submission of the learned counsel for the appellants under point (i) is well founded and the finding of the lower appellate court, to the extent it relates to CD wall cannot be sustained. It may be noticed that the trial court had also given a finding that the CD wall is common. That finding also is not called for, and cannot be upheld. As it appears from paragraph No. 6 of the judgment of the appellate court, points raised by the different parties are mentioned. It is clearly mentioned therein that the disputed wall was shown by letters AB in the map Exhibit 2. Therefore, according to me, in this appeal, the finding with regard to AB wall alone has to be taken into account. 11. Now I turn to consider the submissions of the learned counsel for the appellants on point No. (iii). This point relates only to appreciation of evidence. Therefore, according to me, in this appeal, the finding with regard to AB wall alone has to be taken into account. 11. Now I turn to consider the submissions of the learned counsel for the appellants on point No. (iii). This point relates only to appreciation of evidence. A reference may be made to the decision of the Supreme Court in the case of Raruha Singh ( AIR 1961 SC 1097 ) (supra), on which reliance has been placed on behalf of the appellants. In that very decision, their Lordships have observed that in Second Appeal, the High Courts jurisdiction is confined to questions of law. When, on the questions at issue to be dealt with in the light of oral evidence and surrounding circumstances, if the appellate court records a definite finding, it would not be open for the High Court to reappreciate the evidence. In that view of the matter, there is no merit in the submission of the learned counsel for the appellants under this point. 12. Now I turn to consider point No. (iv). The contention under this head by the appellants counsel is that the lower appellate court has mis-interpreted Exhibit 1 and that according to him it will amount to a question of law. Learned counsel, in this connection, relied on a decision of the Supreme Court in the case of Bhusawal Borough Municipality V/s. Amalgamated Electricity Co. Ltd. ( AIR 1966 SC 1652 ), wherein it has been observed that misconstruction of a document which is not merely of evidentiary value but one upon which claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it. In my opinion, this submission of the learned counsel for the appellants also is not tenable. It may be noticed that the learned court below has come to the conclusion not merely by interpreting Exhibit 1, but has also taken into account, as pointed out earlier, other evidence on the record as well. In my opinion, this submission of the learned counsel for the appellants also is not tenable. It may be noticed that the learned court below has come to the conclusion not merely by interpreting Exhibit 1, but has also taken into account, as pointed out earlier, other evidence on the record as well. In the case of Kameswaramma V/s. Subba Rao, ( AIR 1963 SC 884 ) it has been observed that a construction of documents (unless they were document of title) produced by the parties to prove a question of fact did not involve an issue of law, unless it could be shown that the material evidence contained in them was misconstrued by the Court of fact. Exhibit 1 was also placed before me. There also it refers to the two walls being common. In the absence of any sketch map drawn on proper scale on the record, it would be difficult to find out the exact location of the walls, but nonetheless, I do not find justification for interference with the findings of the lower court in this second appeal regarding the AB wall being common. Therefore, the submission of the learned counsel for the appellants under point No. (iv) also fails. 13. Lastly, I advert to consider the submission of the learned counsel under point No. (ii). The contention of the learned counsel for the appellants in this regard is not tenable. Even if I exclude the alleged inadmissible evidence, the finding of the appellate court regarding AB wall can be sustained on other evidence on the record. Under this point, learned counsel has submitted that the appellate court has relied upon the findings in Title Suit No. 356 of 1952, out of which Title Appeal No. 145 of 1954 arose. In these litigations, learned counsel for the appellants submitted, the issue between the parties related to a latrine in Holding No. 116, and, therefore, according to the learned counsel, those findings were neither relevant nor admissible in evidence. That may be so, but, as observed by me earlier the findings of the appellate court can be sustained even after exclusion of that part of the evidence. 14. In the result, after a careful consideration, I allow this appeal in part and the judgment and decree of the court below are modified to the extent as indicated above. That may be so, but, as observed by me earlier the findings of the appellate court can be sustained even after exclusion of that part of the evidence. 14. In the result, after a careful consideration, I allow this appeal in part and the judgment and decree of the court below are modified to the extent as indicated above. In the circumstances of the case, there will be no order as to costs.