G. N. SABHAHIT, J. ( 1 ) THIS appeal by the defendant in the trial Court is directed against the judgment and decree dated 30 7-1977 passed by the district Judge, Bijapur, in RA No. 16/1976 on his file, dismissing the appeal of the defendant on confirming the judgment and decree dated 22-9-1976 passed by the Civil judge, Bijapur, in OS No. 47/75 on his file, decreeing the suit of the plaintiff as prayed for. ( 2 ) THE plainliff instituted a suit for declaration of his title to the suit property and further for a declaration that the defendant was a tenant under him of the suit property. The plaintiff instituted a HRC proceeding against the defendant in HRC no. 37 of 1972 on the file of the Munsiff, bijapur for eviction of the tenant from the suit premises. Therein, the tenant raised the contention that he had entered into an agreement of sale with the plaintiff on 6-3-1964 as per Ext. D-1 and that therefore, there was ho relationship of landlord and tenant between the parties. There after, the learned Munsiff held that the case involved a complicated question of law regarding title and directed the plaintiff to get his title declared in a Civil court. Accordingly, the plaintiff instituted the present suit in OS No. 47/75 on the file of the Prl. Civil Judge, Bijapur. ( 3 ) THE suit was resisted by the defendant on the same grounds that he took up before the HRC Court wherein he contended that he was in possession pursuant to an agreement of sale, vide Ext. D-4 and hence, he could not be a tenant under the plaintiff. ( 4 ) THE trial Court raised the following issues as arising for its consideration : (1) Whether plaintiff proves t'hat he is the landlord and defendant is the tenant on a monthly rent of Rs. 50 ? (2) Whether the defendant proves that the plaintiff agreed to sell the suit house for a consideration of Rs. 7,501 and executed a document in this regard ? (3) Whether he proves that he has paid the entire consideration for Rs. 7,501 and has become the owner of the suithouse ? (4) Whether the plaintiff proves that the said document is a fabricated one ? (5) What decree or order ? 7,501 and executed a document in this regard ? (3) Whether he proves that he has paid the entire consideration for Rs. 7,501 and has become the owner of the suithouse ? (4) Whether the plaintiff proves that the said document is a fabricated one ? (5) What decree or order ? ( 5 ) THE learned Civil Judge appreciating the evidence on record held under issue no. 1 that the plaintiff is the landlord and the defendant is the tenant of suit house. He answered issues Nos. 2 and 3 in the negative. He answered issue No. 4 in the affirmative and in that view the learned civil Judge decreed the suit of the plaintiff as prayed for. ( 6 ) AGGRIEVED by the said judgment and decree, the defendant went up in appeal before the District Judge, Bijapur In RA no. 16/76 on his file. The learned District judge in the course of his judgment raised the following points for consideration. (1) Whether the defendant has ceased to be a tenant of the suit premises and that his present possession is that of a purchaser under a partly performed contract for sale of the suit house ? (2) Whether the decree made by the trial Court is proper ? ( 7 ) THE learned District Judge, reassessing the evidence on record answered point no. 1 in the negative and point No. 2 in the affirmative and in that view he dismissed the appeal, confirming the judgment and decree of the trial Court. ( 8 ) AGGRIEVED by the same, the defendant has come up in the above second appeal before this Court. ( 9 ) THE learned Advocate appearing for the appellant defendant strenuously urged before me that the Courts below were not justified in not placing reliance on Exts. D-4 and D 5. In that view he submitted that the Courts should have held that the present appellant was not a tenant after the agreement of sale but that he continued to be in possession as prospective purchaser in part performance of the agreement of sale. ( 10 ) AS against that the learned Advocate appearing for the respondent plaintiff argued supporting the judgment and decree of the trial Court confirmed by the first appellate Court. ( 11 ) THE only substantial question of law that was noted while admitting the appeal is : 1. ( 10 ) AS against that the learned Advocate appearing for the respondent plaintiff argued supporting the judgment and decree of the trial Court confirmed by the first appellate Court. ( 11 ) THE only substantial question of law that was noted while admitting the appeal is : 1. "whether the lower Appellate court was justified in not giving a finding on the genuine nature of the document Ext. D-4 ?" ( 12 ) IT may at once be stated that this court sitting in second appeal is not expected to reassess the evidence on record with a view to scrutinise the finding given by the Courts below on a question of fact however erroneous that finding might be. ( 13 ) THE Supreme Court of India in the case of Afsar Shaikh v. Soleman Bibi (1) has observed in para 18 of the judgment thus :"the scope of the powers of the High court to interfere in second appeal with judgments and decrees of Courts below is indicated in Ss. 100, 101 and 103 of cpc. Broadly, the effect of Ss. 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the "ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be". Both the Courts below in this case have concurrently held on a question of fact that Exts. D-4 and D 5 are not proved to be genuine and properly executed. That being so, it is not the function of this court to find fault with that finding as it is a finding on a question of fact. " ( 14 ) THERE is no substance in the contention that the first appellate Court has not answered the point about the genuine nature of the document; for the appellate court has clearly held that the person in whose favour the document is executed is not examined and that the signature of the plaintiff is not got examined by the handwriting expert and that the evidence of dws. 3 and 4 is not at all worthy of acceptance, and that therefore, Exts. D-4 and D-5 are not proved. 3 and 4 is not at all worthy of acceptance, and that therefore, Exts. D-4 and D-5 are not proved. Hence, there is no substance in that point. I was taken through the judgments of the Courts below and I am satisfied that they have taken into consideration all the material evidence on record both oral and documentary before arriving at the conclusion that the relevant documents are not proved. Hence, agreeing with the Courts below I hold that the agreement of sale is not at all proved, as a matter of fact, by the defendant. ( 15 ) EVEN otherwise as rightly pointed out by the learned Civil Judge, assuming for the sake of argument that Ext. D 4 is proved, even then it does not change the character or possession by the defendant- appellant. S. 53a of the TP Act regarding part performance applies only when the defendant is put in possession of the suit property or allowed to continue in possession pursuant to the agreement of sale. S. 53a, para (2) states : ". . . . and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract. . . . " there is nothing to indicate in Ext, D-4 that the defendant in the suit was allowed to continue in possession pursuant to the agreement of sale. That being so, S. 53a of the TP Act would not be applicable to the facts of the case even assuming that the agreement of sale is proved. ( 16 ) A Division Bench of this Court consisting of the Hon'bie the Chief Justice and Puttaswamy, J. has laid down in the case of Mallappa Bhimanna v. The Land tribunal, Sundgi (2) that the right, of a lessee under a lease does not merge with the right that the tenant may have acquired under a mere agreement of sale of the land in his favour, The tenant continues to be a tenant. That being so, there should be no difficulty in holding that the plaintiff is the landlord and the owner of the suit land and the defendant is a tenant under him. That being so, there should be no difficulty in holding that the plaintiff is the landlord and the owner of the suit land and the defendant is a tenant under him. That is what the Courts below have held, I have no reason to differ. ( 17 ) IN the result, therefore, the appeal fails and is dismissed. On the peculiar facts of the case, I make no orders as to costs. --- *** --- .