N. Y. HANUMANTHAPPA, J. ( 1 ) THOUGH this appeal is listed for admission, by consent of both parties, it is taken up for final disposal. ( 2 ) THIS is defendants' second appeal. ( 3 ) RESPONDENT herein was the plaintiff in the trial court. He had filed a suit for declaration of possession and permanent injunction in respect of the suit schedule property. The relief sought reads as follows: that it be declared that the plaintiff is the owner and to put her in possession of the property viz. , suit schedule property including western wall A to B, B to C'and C to D shown in the plaint sketch and also for perpetual injunction and for mandatory injunction directing the defendants appellants to rebuild the wall on the western portion of the suit schedule site at points C to D at their own costs. ( 4 ) RESPONDENT-PLAINTIFF filed O. S. No. 557 of 1980 on the file of Principal Second Munsiff at Bangalore, for a declaration that she is the absolute owner in possession of the plaint schedule site measuring 22' x 60' plus 30/2 i. e. 22' East to West, 60' north to South with an open water closet 10' East to West, 20' North to South including the wall on the western side of the suit site running from North to South and shown as AB, BC and CD in the plaint sketch forming part of Khaneshumarino. 226/147 with assessment list No. 376 situated in Shankar Mutt, Anekal town, more fully described in the plaint schedule and for permanent injunction to restrain the defendants from interfering with their possession of suit property and for mandatory possession to direct the defendants to rebuild the wall on the western portion of the suit schedule site at the points B to C and C to J at their own costs and also for the costs of the suit on the allegation that she is the absolute owner in possession of the entire K. No. 226/147 situated at Anekal measuring 54' x 60' plus 30/2 consisting of a tiled roof house measuring 32 feet East to West and 60' North to South including a well situated therein and also towards North-Western corner of the said vacant site, a latrine open type measuring 10' East to West and 20e North to South. The above property originally belonged to one R. Ramachandra Rao adopted son of Rajapurada krishnappa who in turn sold the same to Smt. Parvathamma daughter of Sri. Bhavani Shankara Archak Syama Dixit under registered sale deed dated 20-3-1929. Subsequently she gifted the said property in favour of Nanjunda dixit s/o Syama dixit under gift deed dated 24-9-1945 who is her grand son. Later, Nanjundaswamy dixit sold the suit property to the plaintiff under registered sale deed dated 4-11-1957. Thus the plaintiff has acquired a valid title to the suit property. The property more fully described in the plaint sketch filed along with the plaint is the hittahi which forms part and parcel of K. No. 226/147 is the exclusive possession and enjoyment of the plaintiff and her predecessors in title. To the west of the suit property there is a property originally owned by one Syama Dixit and the same property is now being possessed by the defendants No. 1 to 3. In between these two properties there exists an old wall and this wall belongs tot he plaintiff. The vacant site referred to above and the wall separating the two sites belongs to the plaintiff. The defendants have no right, title or interest over the above vacant site or the walls marked as AB, BC and CD in the plaint sketch. Even then the defendants taking advantage of the absence of the plaintiff's husband and her children in Anekal, on 16-4-1977 demolished the portion of wall referred to above to a length of 10' at point marked as B and C and 15'at points C and Jinspite of protest by the plaintiff and on the complaint by the plaintiff the further damage was prevented by the police. Since then the defendants made repeated attempts to demolish the remaining wall between j and D and made an attempt to forcibly take possession of the vacant site referred to above, the above suit was filed. ( 5 ) THE defendants resisted the plaintiff's suit by filing written statement by the second defendant which was adopted by defendants 1 and 3. ( 5 ) THE defendants resisted the plaintiff's suit by filing written statement by the second defendant which was adopted by defendants 1 and 3. The sum and substance of the stand taken by the defendants are: they admitted that the plaintiff is the owner of the premises hearing K. No. 226/147 hut they contended the measurements and descriptions of the suit properly as given in para 2 of the plaint so also in the schedule to the plaint and the suit sketch are incorrect and false. The well and the wall AB, BC and CD referred to in the pla int do not form part of plaintiffs property and they are not in her possession and enjoyment. According to the defendants several recitals in the document referred to in para 3 of the plaint are deliberately made to include the properties which do not belong to the plaintiff's husband. Likewise, the measurements entered in the assessment register are also wrong. The entries were made apparently without any data or basis, behind the back ofthe defendants at the instance of interested persons. They have admitted that they are the owners of premises lying to the west of plaintiffs property. It originally belonged to Shyama Dixit son of Naga Dixil who under a will dated 1-3-1925 bequeathed the same to his second daughter Subbamma and hersonnanjunda Dixit alias Syama Dixil who is the father of defendants 1 and 2 and husband of the third defendant respectively. According to them, the defendants are not the sole owners of the suit schedule property. They are entitled to the same and are in possession along with other members of the family. According to them, while furnishing the descriptions of suit schedule property the plaintiff has included a property which forms a portion of defendants property. They are also disputing the correctness of the plaint sketch. The wall AB, BC and CD was not a wall which bifurcated the properties of the plaintiff and defendants. The wall referred to in the plaint and the plaint schedule and indicated in the sketch does not form a portion of the property belonging to the plaintiff. It is not in the hittalu belonging to the plaintiff and the dimensions of the plaintiffs hittalu as given in the plaint are much in excess of the hittalu belonging to her. The plaintiff has come forward deliberately with a false claim. It is not in the hittalu belonging to the plaintiff and the dimensions of the plaintiffs hittalu as given in the plaint are much in excess of the hittalu belonging to her. The plaintiff has come forward deliberately with a false claim. From the recitals in the will dated 1-3-1925 ihe well in dispute formed a portion of his property which is now inherited by the defendants. The hittal of this defendant extended to about 5' beyond the wall on its eastern side and there was no partition wall at any time between the properties of the plaintiff and the defendants. The dwar wall referred as AB, BC and CD in the suit sketch was not a compound wall or a bifurcating wall. They are remnants ofthe wall of a shed which originally stood there forming a portion of the property which belongs to these defendants. The shed was used for tethering cattle and stacking hay and such other things. The shed became dilapidated in course of time and was not in use for about 5 years before it fell down in 1973-74. About five years back the defendants constructed another shed and they are now tethering cattle there. They denied the plaintiffs contention that she is in possession and enjoyment of the wall ab, BC and CD and the hittalu and they further denied the plaintiffs contention that one ofthe pillars ofthe well is embedded in the western wall of plaintiff s house. The well is more than 13' away from the western wall ofthe plaintiffs house. This well was originally revetted with earthen rings and late Nanjundaswamy Dixit alias shama Dixit got the well revetted with stones. Ht has also planted the coconut trees standing by its side more than 30 years ago. The'plaintiff has no right to the well or to the coconut tree or to the hittal in which the well and coconut trees are located. They further denied the plaintiffs allegation that they tried to interfere with their possession of the suit property on 16-4-1977 and the question of interference does not arise when the wall and well never belonged to the plaintiff. Hence prayed that the suit be dismissed with costs. They further denied the plaintiffs allegation that they tried to interfere with their possession of the suit property on 16-4-1977 and the question of interference does not arise when the wall and well never belonged to the plaintiff. Hence prayed that the suit be dismissed with costs. ( 6 ) ON the basis of the pleadings, the trial court framed the following issues: (1) Does the plaintiff prove that she is the owner of plaint schedule site and western wall A to B, B to C and C to D shown in the suit sketch?2) Does the plaintiff prove that she is in lawful possession of plaint schedule site on the western wall ABCD on the date of filing of suit? 3) Whether the suit is undervalued and the court fee paid is not sufficient? 4) Whether the plaintiff is entitled to permanent injunction as prayed for? 5) To what reliefs the parties are entitled? ( 7 ) IN support of the rival contentions, both the parties led evidence both oral and documentary. On the plaintiff's side 5 witnesses were examined as P. Ws. 1 to 5 and ii documents were produced and marked as Exs. P. 1 to P. 11. Ex. P. 1 is the gift deed dated 24-9-1945. On defendant's side 4 witnesses were examined including defendant No. 3 as D. W. 1. They produced 2 documents marked as Exs. D. I and D. 2. Ex. D. I the will is dated 1-3-1925 and Ex. D. 2 the sale deed is dated 20-3-1929. On the material so produced and on hearing both sides, the trial court accepted the contentions raised by the plaintiff in toto and decreed the suit as prayed for. The reasoning adopted by the trial court to hold that plaintiff proved that she is the owner and is entitled for possession and the defendants to rebuild the wall is as follows:"in. Ext. P. 1 there is mention angala andhittalu. In Ext. PI there is mention ofhittalu and well. From the description as stated above mentioned in Ext. P. I and Ext. P. 3 it becomes clear that to the west of the plaintiffs property there is a house property of the defendant. The plaintiff's property is consisting ofhittalu and a well. Ext. P. 4 is the mahazar drawn by the Municipal authorities persuant to the application made by the defendant. P. I and Ext. P. 3 it becomes clear that to the west of the plaintiffs property there is a house property of the defendant. The plaintiff's property is consisting ofhittalu and a well. Ext. P. 4 is the mahazar drawn by the Municipal authorities persuant to the application made by the defendant. The defendants have not challenged the title deeds of the plaintiff, much less Ext. P. 4 which is the mahazar signed by the defendants. The measurements contained in Ext. P. 4 go to prove the case of the plaintiff in regard to the measurements of the property in dispute. In Ext. P. 5 there is mention of the wall (motugode) running from North to South which is shown as AB, BC and CD and both the parties were required to leave a space of \l/2. ' at the time of construction from the said wall. D. W. 3 Seetharama Sastry who is the President of Municipality was examined on behalf of the defendants states that he measured the property as per Ext. P. 4. This goes to show that the measurements contained in Ext. P. 4 are true and correct Besides the measurements of the plaintiff's property is also given in Ext. P. 2. The extent and measurements shown therein is similar and tallies with the measurements given in the plaint schedule. D. W. 1, Bhagyarathnatnrna's husband was the archak of the Bhavani shankar and Shankaracharya Devasthana to which D. W. 3 is the convenor. D. W. 2 was working during festivals for the said Devastbana. The well figured in Ext. D. I which is dated 1-3-1925 is stated to have been constructed by Shama Dixit, and D. W. 2 is said to have been engaged in the construction. No documents are forthcoming to show that Venkatappa 's services were utilised for construction of the well. The say of D. W. 2 that he worked for the construction of the wesannot be accepted since he is no other than the person being called for and engaged at the time of festivals and therefore his evidence is not reliable. So. also that of d. W. 3 who is the convenor of the said temple. Thus D. W. 1 to 3 are the interested witnesses. So. also that of d. W. 3 who is the convenor of the said temple. Thus D. W. 1 to 3 are the interested witnesses. Their evidence including the evidence of D. W. 4 cannot be believed in the absence of documents to show that the well under Ext D. 1 refers to the well in question. On the other hand there is documentary evidence as stated above placed by the plaintiffs to show that the well, coconut trees and the wall in question belonged to them. Besides the witness examined by the plaintiffs namely P. W. 1 and P. W. 2 are Teachers and ex-tenants and their evidence is more reliable. In regard to the wall in question, according to the defendants it is an old dilapidated wall of their cattle shed. In support of this assertion the defendants have not produced any documents. On the other hand Ext. P. 4 and P. 5 clearly show that it is a bifurcating wall belonging to the plaintiff which fact is also stated by the plaintiff and her witnesses. In view of the mention made in the title deeds at Ext. P. 1, P. 3 and P. 8 in regard to the well and trees and in view of the measurements contained in Ext. P. 2, P. 4 and P. 5. It becomes clear that the plaintiff is in possession of the suit schedule property including the disputed wall as owner thereof. Hence issue No. 1 and 2 are answered in favour of the plaintiff. " ( 8 ) AGGRIEVED by the said Judgment and Decree the defendants preferred anappeal before the learned Prl. Civil Judge, Bangalore Rural District, in R. A. 4 of 1985. The appellants contended before the lower appellate court that the trial court was not right in decreeing suit on the basis of Ex. P. 1. It erred in placing reliance on the evidence of the plaintiff ignoring the evidence of the defendant. It has failed to take into consideration the evidence of defendants' witnesses. For all these reasons, the appellants submitted that the Judgment and Decree of the trial court arc vitiated and the same be set aside by allowing the appeal. Whereas, the plaintiff respondent supported the Judgment and Decree of the trial court. After hearing both sides, the lower appellate court raised for its considera tion, the following points:"1. For all these reasons, the appellants submitted that the Judgment and Decree of the trial court arc vitiated and the same be set aside by allowing the appeal. Whereas, the plaintiff respondent supported the Judgment and Decree of the trial court. After hearing both sides, the lower appellate court raised for its considera tion, the following points:"1. Whether the learned Munsiff is justified in holding that the plaintiff has proved her title and possession to the plaint schedule site as on the date of suit?2. Whether the learned Munsiff is justified in holding that the plaintiff is the owner of the suit schedule site and western wall A to B, B to C and C to D shown in the suit sketch?3. Whether the learned Munsiff is justified in decreeing the suit as prayed for?4. What order?having so raised the points, it took the trouble of reappreciating the evidence, both oral and documentary. As it found that the reasonings adopted on the material placed were quite reasonable and justified, the lower appellate court held that the trial court was justified in decreeing the suit. Thus holding, it dismissed the appeal. ( 9 ) AGGRIEVED by the Judgments and Decrees of both the courts below, the defendants have preferred this second appeal. ( 10 ) SRI G. D. Ashwathanarayana, learned counsel for the appellants now submittedthat trie orders of the courts below are quite incorrect and their approach in dismissing of the cases is quite erroneous, in that: (1)THE courts below failed to take into consideration the material which should have been considered and accepted such material which should have been excluded. (2) Construing the effect of Exs. P. I to P. 3 and D. 1 and D. 2 contrary to the recitals. (3) Findings given by the courts below are not supported by material evidence. (4) The courts below committed an error in not noticing that in the absence of framing of an issue regarding mandatory injunction, whether such a relief could have been granted, as is done in the instant case. (3) Findings given by the courts below are not supported by material evidence. (4) The courts below committed an error in not noticing that in the absence of framing of an issue regarding mandatory injunction, whether such a relief could have been granted, as is done in the instant case. He also placed reliance on the decision of the Supreme Court reported in 1979 SC 867 in the case ofm/s. Oriental Distributors v Bank of India Limited and Others, for the proposition that when a document has been misconstrued and a finding has been given on such a misconstrued opinion, this Court under Section 100 of CPC can interfere to correct such a mistake happened due to misconstruing of the document. For the similar proposition, he has also placed reliance on a decision of the High court of Madras reported in AIR 1978 Madras 42 in the case of The Secretary of government Home Department and Another vt. V. Hari Rao. For all these reasons, he submitted that this is a fit case where the orders under challenge are liable to be set aside by exercising powers under Section 100 of the CPC. ( 11 ) AS an answer to these contentions, Sri, Ramaswamy learned counsel for the respondent-plaintiff submitted as follows: both the courts have taken into consideration the entire material produced and held that the plaintiff has proved her case and thus decreed the suit. Regarding non- framing of issue, the defendants did not raise this objection either before the trial court or before the I appellate court. As such, now he is estopped from raising the same in these proceedings. According to him, where on facts both the courts held against the defendants, it is not proper to interfere under Section 100 of CPC. Regarding non- framing of issue, the defendants did not raise this objection either before the trial court or before the I appellate court. As such, now he is estopped from raising the same in these proceedings. According to him, where on facts both the courts held against the defendants, it is not proper to interfere under Section 100 of CPC. For the said proposition, he placed reliance on a decision of the Supreme Court reported in air 1963 SC 302 in the case of V. Ramachandra Ayyar and Another vramalingam chettiar and Another, wherein it is observed as follows:"in hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate court. The error of defect in the procedure to which clause (c) of Section 100 (1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect hi the procedure, On the other hand, if in dealing with a question of fact, the lower appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is admissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate court fails to consider an issue which had been tried and found upon by the trial court and proceeds to reverse the trial court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however erroneous the said conclusions may appear to be to the High Court 17 Ind App. 122 (PC), rel. on; 31 ind App. 154 (PC), ref. to; AIR 1941 Mad. 393 , overruled. If a finding of fact has been recorded by the first appellate court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned under section 100; and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High court would be justified in interfering with the decision of the lower appellate court. All that it means is that it should be a cause where the evidence, which is accepted by the lower appellate court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. 17 Ind. App. 65 (PC) Explained. "for the same proposition, he also placed reliance on two decisions of this Court reported in 1982 (1) Kar. L. J. 285 Rudrappa by L. Rs. v Danappa Malasiddappa, and 1982 (2) K. L. C. 256 C. Chennaiah v K. P. Mahadevappa. For the above reasons Sri ramaswamy submitted that in view of the findings given by the courts below on facts involved, in the absence of any erroneous approach or the procedure followed by the courts below, interference under Section 100 of the CPC is not warranted. For the above reasons Sri ramaswamy submitted that in view of the findings given by the courts below on facts involved, in the absence of any erroneous approach or the procedure followed by the courts below, interference under Section 100 of the CPC is not warranted. ( 12 ) HAVING heard both sides on the substantial questions of law as involved and Sri Ashwathanarayana learned counsel for the defendants from facts narrated and findings arrived at, now it has to be seen, whether the substantial questions of law as suggested by Sri Ashwathnarayana are really involved in this case. The substantial questions of law as suggested are as follows:1. The courts below having held that the property has not been i lentified, erred in coming to the conclusion that the same is proved by the respondent-plaintiff, inspite of the same being on record. Hence proper inference from the law of proof being the law of proper inference is according to law of proof of fact, being thus question of law, the courts below committed an error in that regard?2. The courts below having seen the proper view of the legal right being appreciated materially according to law, the same has not been dealt with. Hence, proper view of legal rights having not been properly held requires interference by this Hon'ble Court. 3. The vital evidence being Ex. D. I from the proved facts, the same has not been appreciated and the same has been rejected on wrong view. From that finding arrived at is not binding. Hence the vital evidence having been rejected on wrong view is a question of law. 4. The admitted fact being that the property in dispute was acquired under ex. D. 1. Thus, the admitted fact being not properly appreciated and considered, becomes gross negligence in considering it. Hence, the same is a question of law. 5. The material evidence and omission to apply correct principles is a question of law. Here the exclusion of Ex. D. 1 and omission to see measurement are not mentioned is a question of law. Hence, substantial law on that point has not been dealt with properly. 6. The documents of the Municipality does not confer legal right. However, the court below relied on the same. Here the exclusion of Ex. D. 1 and omission to see measurement are not mentioned is a question of law. Hence, substantial law on that point has not been dealt with properly. 6. The documents of the Municipality does not confer legal right. However, the court below relied on the same. Therefore, such reliance is a question of law, when law does not give any such right of the same, it could not have been relied upon by the courts below. 7. The courts below have recorded a finding on misleading evidence. Hence, it is amounted to an error of law, because, evidence on record has not been considered by the courts below by reading the recitals therein. 8. The courts below on the available materials, failed to come to a legal conclusion on the basis of the proved facts. Hence, inference that could have been on the same has not been properly inferred. Hence, the same is a question of law and requires interference by this Hon'ble Court. 9. The courts below having found that the evidence and the documents produced could not be sufficient to come to the conclusion that ownership has not been established, erred in giving such an erroneous conclusion for giving declaration of ownership. Hence, the conclusion without evidence and applying correct principles, is a question of law. 10. The courts below having drawn wrong inference from a deed, erred in arriving at such an erroneous conclusion. The material available on record and wrong inference drawn from the document amounts to question of law. ( 13 ) NO doubt, the questions framed by him if really exist in a given case,interference under Section 100 of CPC is definitely warranted. But, in the instant case, a perusal of the evidence produced does not indicate that either the trial court or the lower appellate court committed any mistake in construing the effect of error on documents relied upon by both the parties or accepting such material which should not have been accepted or excluded the evidence which should have been accepted. It is proper to state here that interference of this Court under Section 100 of CPC is called for not on an automatic inference but only when it is shown that substantial question of law is involved. It is proper to state here that interference of this Court under Section 100 of CPC is called for not on an automatic inference but only when it is shown that substantial question of law is involved. Scope of Section 100 of CPC and the substantial questions of law involved has been clearly explained by the Supreme Court reported in air 1963 SC 302 mentioned supra. ( 14 ) IN the case of Mahboob Saheb v N. Sabbarayan Chowdhary and Others, reported in AIR 1982 SC 679 wherein while dealing with reappreciation of evidence, the Supreme Court held that it is not open to the High Court to reappreciate the evidence and substitute its own conclusions in place of those entered by the lower courts. In the case of Budhwanti and Another v Gulab C hand Prasad reported in AIR 1987 SC 1485 the Supreme Court held that where the lower appellate court interferes in a finding of fact given by the trial court on wrong appreciation of evidence and reverses such finding on baseless assumptions and wrong principles of law, the High Court can interfere under Section 100 of CPC. Thus, this Court under section 100 of CPC can interfere only when a finding of fact is vitiated by application of wrong tests or on the basis of conjectures and assumption or where the findings of the courts below are patently erroneous, or it is shown that such findings arc manifestly unjust. View taken in AIR 1982 SC 679 mentioned supra has been again reiterated by the Supreme Court in the case of Maniar Ismail Sab and Others v maniar Fakruddin and Others, reported in AIR 1989 SC 1509 wherein it is said that on concurrent findings of fact interference of High Court under Section 100 of CPC not permissible. This Court also in the case reported in 1982 (1) Kar. This Court also in the case reported in 1982 (1) Kar. L. J. 285 mentioned supra and again in the case reported in 1982 (2) K. L. C. 257 mentioned supra extending the scope of Section 100 of CPC has held as follows:"a. CIVIL PROCEDURE CODE section 100: Suit for permanent injunction - concurrent findings by courts below - appreciation of evidence - failure to examine commissioner and challenge his report-whether necessary to remand the matter-Held: No. "if the contention of Sri Ashwathanarayana is to be accepted, it amounts that this court shall reappreciate the evidence and arrive at a different conclusion which is permissible in view of the limited scope of Section 100 of CPC as held by the supreme Court in the case reported in AIR 1986 SC 1509 in the case of Dudh Nath pandey (dead) by L. Rs. v Suresh Chandra Bhattasali (dead) by LRs. wherein it is held:"the High Court in exercise of its power under Section 100 of the Civil procedure Code cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the first apellate court. The finding on the question of limitation recorded by the first appellate court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which cannot be set aside by the High Court in the exercise of power under Section 100 of the Civil Procedure Code. "the High Court in exercise of its powers under Section 100 of CPC cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the I appellate court. The finding on the question of limitation recorded by the I appellate court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which cannot be set aside by the high Court, in exercise of powers. In the absence of establishing an irregularity committed by the courts below, if findings are given on appreciation of facts, in respect of such findings of fact, the supreme Court found the interference of the High Court unjust in the case of smt. Jahejo Devi and Others v Moharam Ali reported in AIR 1988 SC 411 . In the absence of establishing an irregularity committed by the courts below, if findings are given on appreciation of facts, in respect of such findings of fact, the supreme Court found the interference of the High Court unjust in the case of smt. Jahejo Devi and Others v Moharam Ali reported in AIR 1988 SC 411 . In the case of j. B. Sharma v State of Madhya Pradesh and Another, reported in AIR 1988 SC 703 the Supreme Court took a view that when courts acted merely on assumptions not supported by any evidence and failed to consider the entire evidence, on the basis of which the finding was recorded, in such a case, Supreme Court observed that interference under Section 100 of CPC is justified. Once again the scope of Section 100 for the court's interference in concurrent findings on fact has been made clear by the supreme Court in the case of Ram Singh etc. vajay Chawala, reported in AIR 1988 sc 514 . The Supreme Court has held in the case of Dilbagrai Punjabi v Sharad chandra, reported in AIR 1988 SC 1858 as follows:"for the landlord claiming eviction of his tenant from a non-residential premises on ground that he requires the premises personally for starting a business it is essential to establish that he is the owner of the disputed premises. Where in such a suit the lower court had without considering the tenant's admission of the landlord's title to disputed property as contained in his reply to the notice given by the landlord and in the numerous rent receipts issued by the landlord, recorded a finding that the landlord had failed to establish his ownership to the disputed property, the High Court was right in reversing the finding of fact. The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. Such was the situation in the case. Such was the situation in the case. "in view of the law laid down by the Supreme Court on the scope of Section 100, the appellant has not made out a case, so that this Court can interfere under Section 100 of CPC and thus set aside the orders of the courts below. ( 15 ) THE last contention raised by Sri Ashwathanarayana that courts below erredin granting mandatory injunction in the absence of framing a proper issue to that effect. It is true that the court on the pleadings, has to decide the controvery between the parties or to decide what are the issues to be tried and proved. Order XIV, Rule 1 of CPC, particularly Order XIV, Rule 5 reads as follows:"at the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders), ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. "it is true that the controversy between the parties shall be noted and an issue be framed so that both the parties can lead evidence to prove their respective claims. In the instant case, no doubt an issue regarding mandatory injunction is not framed. However, from the pleadings, it is clear that what the controversy between the parties was. Plaintiff sought for a direction to the defendants to put up a wall as described in the schedule. After understanding the pleadings and the controversy between the parties, evidence was let in. Defendants neither before the trial court nor before the appellate court took a contention that the Judgment of the trial court vitiated for the failure to raise an issue regarding mandatory injunction. Even before the lower appellate court, they did not raise this contention. Only for the first time, before this Court such a contention has been raised and the same now does not deserve to be considered, as such a contention was not raised before the courts below. Further, both the parties understood the controversy and participated in the proceedings and accepted the orders of the courts below. Only for the first time, before this Court such a contention has been raised and the same now does not deserve to be considered, as such a contention was not raised before the courts below. Further, both the parties understood the controversy and participated in the proceedings and accepted the orders of the courts below. This position has been made clear by the Supreme Court in the case of Nagubai Ammal and Others v B. Shama Rao and Others reported in AIR 1956 SC 593 observed that where parties go to trial with the knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduced evidence relating thereto, where no specific issue was raised or framed and the defendants went to trial with the full knowledge and inspite of having ample opportunity to take up that contention failed to do so, thus they are not entitled to contend the same subsequently. Again in the case of Nedunuri Kameswaramma v Sampati Subba Rao, reported in AIR 1963 SC 884 the Supreme Court held as follows: "where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. " the Supreme Court took a similar view in the case of Kunju Kesavan v M. M. Philip and Others, reported in AIR 1964 SC 164 as follows;" (D) Civil Procedure Code (1908) Order 6, Rule 2, Order 14, Rule 1 Both parties understanding what the issue in the case was Absence of issue held did not lead to mis-trial sufficient to vitiate decision. "the High Court of Calcutta in the case of Krishna Das Nandy v Bidhan Chandra roy, reported in AIR 1959 Calcutta 181 explains the scope of Order 14, Rule 1 and order 41, Rule 25 regarding omission to frame issue and held as follows:"where the defendant had ample notice of a point, he produced his materials thereon and argued the matter fully in the court below without protest and did not make any grievance about it when he filed appeal in the High Court, an objection that the matter was not specifically pleaded in the plaint or raised in the issue cannot be allowed to be taken in appeal as the defendant was not the least prejudiced on that point by the absence of issue or otherwise. "the same High Court again in the case of Shri Radha Gobinda Jew and Others v smt. Kewala Devijaiswal and Others, reported in AIR 1974 Cal. 283 explaining the scope of Order 14, Rule 1 held as follows:"but, the parlies after applying their mind to the state of pleadings stated above went to trial and adduced evidence on it and therefore a mere omission to frame a specific issue on this question is of no moment as said by the Supreme Court in the case of Nedunuri Kameswaramma v Sampati Subba Rao, reported in AIR 1963 SC 884 at p. 886. "even the High Court of Rajasthan in the case of Girdharsingh and Another v Gokitl and Others, reported in AIR 1976 Raj. 10 has observed as follows:"mere omission to frame issues is not necessarily fatal to the trial of the suit unless such omission has affected the disposal of the case on merits. In the instant case tenants have filed the suit alleging that they have been irrigating their filed from the well of the landlord. The parties went to trial fully knowing the rival case and led all evidence in support of their contentions. Held in the circumstances that it could not be said that the absence of the issue was fatal to the case or that there was such mis-trial which vitiated the entire proceedings. "from the discussion made above, it is clear that even the contention that orders of the courts below are vitiated as the trial court did not frame an issue relating to mandatory injunction is neither available nor tenable. "from the discussion made above, it is clear that even the contention that orders of the courts below are vitiated as the trial court did not frame an issue relating to mandatory injunction is neither available nor tenable. ( 16 ) THE other contentions which Sri Ashwathanarayana raised do not deserveany consideration in view of the answer given above. In view of the answer given above which will cover and hold that the said contentions of Sri Ashwathanarayana as untenable. Hence, this appeal is dismissed. --- *** --- .