Yunus v. Jamiran — 1992 DIGILAW 819 (ALL)

JUDGMENT I.S. Mathur, J. - This is second appeal against the judgment and decree of the first appellate Court, IV Additional Civil Judge, Varanasi dated 29-7-1975, whereby he allowed the appeal against the judgment and decree of the learned Munsif and decreed the suit of the Plaintiffs-Respondents for possession and permanent injunction in respect of the land and khandahar detailed in the plaint. 2 The Plaintiff-Respondents, namely Zameeran and Masiullah are husband and wife. The Defendant No. 1 Mohd. Yunus is the son of Defendant No. 2 Mohd. Ibrahim. Defendant No. 3 Hidayat Ullah and Defendant No. 4 Badullah are sons of Abdul Samad and Defendant No. 5 Khatoon Beebi is his widow, After the death of Defendant No. 4 Badullah, his son Swalle, Israel, Nikail, daughter Shahjahan and Mst. Badrun were parties. 3. Plaintiff-Respondents filed this suit with the allegations that they had purchased the khandahar along with the land, detailed in the plaint, from Defendant No. 2 Mohd. Ibrahim, through a sale deed dated 21-3-1958. The sale deed is in the name of Plaintiff No. 1 Zameeran. Due to some necessity, this property was sold to one Abdul Hameed, but later on Plaintiff No. 1 Zameeran purchased it again from Abdul Hameed on 26-7-1960, in the west of this property, is the house No. 12/79 belonging to one Abdul Samad the predecessor of Defendant Nos. 3 to 5. The Defendant Nos. 1 and 2 had to do nothing with the khandahar and the land but they started to allege that this land belonged to them and they have purchased the same from Defendants Nos. 3 to 5. A notice was given to Defendant no 2 Mohd. Ibrahim but a wrong reply was sent. The Defendants Nos. 1 and 2 started making illegal constructions on this land on 25-11-69 and did not stop. 4. The suit was contested by the Defendant Appellants Mohd. Yunus and Ibraim and it proceeded ex-parte against the other Defendants. The case of Defendants is that the land in suit was part of the house of Abdul Samad which was sold by his sons and widow (Defendant 3 to 5) to the Defendant No. 1 by sale deed dated 26-12-1967. It was denied by the Defendant Nos. 1 and 2 that Defendant No. 2 sold the land in suit to the Plaintiff No. 1 by the sale deed dated 21-3-1958. It was denied by the Defendant Nos. 1 and 2 that Defendant No. 2 sold the land in suit to the Plaintiff No. 1 by the sale deed dated 21-3-1958. It was alleged by them that they have been in possession, 5. Relevant issues were framed by the learned Munsif and he dismissed the writ with the finding that the sale deed, dated 21-3-1958, executed by the Defendant No. 2 Mohd. Ibrahim, in favour of the Plaintiff no. I did not include the land in suit. According to him, the land east of this disputed land was sold to the Plaintiff and the land in dispute belonged to one Abdul Samad and was sold to the Defendant No. 1 by the legal representative of Abdul Samad. 6. In appeal, the learned IV Additional Civil Judge Varanasi reversed this judgment and decree with the finding that the land on suit is covered by the sale deed dated 21-3-1958. According to him, the boundaries given in the sale deed in the East-West and Sonth fully tally with the situation found by the Amin in his report dated 28-4-1970 and shown in the map prepared by him and, in regard to the boundary towards north, the khandahar of Sattar, shown by the Amin in the map along with the house of Mohd Ibraim, has been left out only by mistake. He also found that the sale deed, set up by the Defendants Nos. 1 and 2 did not relate to this property and, in any case, the property in suit did not belong to Abdul Samad. He, interalia, relied upon the statement of the witness of the Defendants, namely DW 3 Hidayat Ullah, son of Abdul Samad, the report of the Amin and the averments in the sale-deed. 7. Aggrieved by the decision of the First Appellate Court, the Defendant Appellants, Mohd. Yunus and Mohd. Ibrahim, have filed the Second Appeal on the grounds that the trial Court considered the statements of the Plaintiffs' witnesses. PW 3 Mohd. Ismail and PW 1 Masiullah for a finding that the land in suit is not covered by the sale deed dated 21-3-1958, but the lower appellate Court did not refer to these statements at all. Ibrahim, have filed the Second Appeal on the grounds that the trial Court considered the statements of the Plaintiffs' witnesses. PW 3 Mohd. Ismail and PW 1 Masiullah for a finding that the land in suit is not covered by the sale deed dated 21-3-1958, but the lower appellate Court did not refer to these statements at all. It is further stated that the boundaries of the Sand in suit do not tally with the boundaries given in the sale deed of the Plaintiff-Respondent, the report of the Amin indicated that this land was part of the house No. 12/79, the lower appellate Court wrongly discarded the sale deed in favour of the Defendants, the Defendants have been in possession over the land in dispute and that the finding that the Plaintiffs-Respondents were the owners of this land, has been given on a wrong interpretation of the sale deed. 8. I have heard the learned Counsel for the parties and have gone through the record. the learned Counsel for the Plaintiffs-Respondents submitted that this second appeal is not maintainable and must be dismissed for the reason that the Appellants want this Court to reassess the evidence and come to a different finding of fact. This, according to the learned Counsel, cannot be done in second appeal and that, in second appeal, this Court is only entitled to interfere if there has been substantial error of law or defect in procedure. 9. On the other hand, the learned Counsel for the Appellants contended that the failure of the learned First Appellate Court in considering the material evidence, namely, the statements of the witnesses of the Plaintiffs would amount to substantial error of law or substantial question of law and this Court will be entitled to interfere in second appeal of material evidence has not been considered by the lower appellate Court and erroneous finding has been arrived at in regard to the interpretation of the sale deed. Reliance has been placed upon Abdul Shankoor v. Kotwalhsewar Prasad AIR 1958 All 4; Smt. Sonawati v. Sriram AIR 1968 SC 446 ; Damadilal and Others Vs. Parashram and Others, AIR 1976 SC 2229 , Hafiz Abdul gaffar v. Nagar Mahapalika 1981 ALJ 228 . Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Others, AIR 1974 SC 1178 and Rama Shanker v. Moti Lal 1965 RD 13. Parashram and Others, AIR 1976 SC 2229 , Hafiz Abdul gaffar v. Nagar Mahapalika 1981 ALJ 228 . Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Others, AIR 1974 SC 1178 and Rama Shanker v. Moti Lal 1965 RD 13. 10 The scope of Interference by the High Court in Second Appeal was considered by a Division Bench of this Court in Abdul Shakur and Others Vs. Kotwaleshwar Prasad and Others, AIR 1958 All 54 . It was held that, where there is no error or defect in procedure, there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, grave or inexcusable the error may seem to be if the first appellate Court had before it evidence proper for its consideration in support of the finding (emphasis supplied). For this observation the Division Bench relied upon the decision of the Privy Council in Mst. Durga Chaudhrani v. Jawahir Singh 17 Ind Appl 122 (P.C.) However, the Division Bench also enumerated the following well known exceptions where the High Court could interfere in the finding of fact of the lower appellate Court: (i) The finding would be assailable in second appeal if there has been no evidence to support the finding, since arriving, at a finding of fact on no evidence becomes a question of law. (ii) A finding based on mere conjectures and surmises would be tantamount to a finding on no evidence since conjectures can not be accepted as a substitute for proof and it can be Interferred with in Second Appeal. (iii) The evidence on which the finding of fact is based should be evidence relevant and admissible under the law relating to the relevancy and admissibility of evidence and where a finding of fact is based partly on admissible and partly on in admissible evidence, there would be good ground for interference by the High Court in Second Appeal (iv) Where it appears that in arriving at a finding of fact the first appellate Court did not consider the oral evidence, nor did it apply its mind to the question, it is not possible to say that there is any finding of fact which should not be interfered with in Second Appeal. The Division Bench also held that, where the evidence on the record is sufficient within the purview of Section 103 CPC and Section 167 of the Evidence Act it is open to the High Court in Second appeal itself to determine an issue of fact if it finds that it has been wrongly determined by reason of any illegality, and there would be no question of a remand for a new trial. 11. In Sonawati and Others Vs. Sri Ram and Another, AIR 1968 SC 466 , the lower appellate Court gave a finding of fact by ignoring important documentary evidence. The Supreme Court held that, where the lower appellate Court arrives at its conclusion ignoring important evidence on record. Its conclusion is not binding on High Court in Second Appeal. The Court observed as follows: The first appellate Court did not refer to these important pieces of evidence, his conclusion cannot be regarded as binding upon the High Court in second appeal. 12 In Hafiz Abdul Gaffar v. Nagar Mahapalika 1981 ALJ 288 , reliance was placed upon Supreme Court decision in Damadilal and Others Vs. Parashram and Others, AIR 1976 SC 2229 and it was observed: Where the finding has been arrived at, as in this case by ignoring consideration of material evidence on record, the finding cannot be held to be sacrosanct in second appeal. Similar view has been taken in Shikharchand Jain v. Digamber Jain Prabandh Karini Sabha AIR 1974 SG 1172 and Rama Shankar v. Moti Lal 1965 RD 13. 13. Besides the above, some more recent decisions of the Supreme Court, in this connection, may also be noted. In Dilbagrai Punjabi Vs. Sharad Chandra, AIR 1988 SC 1858 , the tenant had admitted the ownership of Plaintiff in his reply to the notice. However, the lower appellate Court did not consider this admission and gave a finding that landlord had failed to establish his ownership of the disputed property. In Dilbagrai Punjabi Vs. Sharad Chandra, AIR 1988 SC 1858 , the tenant had admitted the ownership of Plaintiff in his reply to the notice. However, the lower appellate Court did not consider this admission and gave a finding that landlord had failed to establish his ownership of the disputed property. The Supreme Court held that this finding of fact cannot be binding on the High Court in the second appeal and observed: It is true that the High Court while hearing the appeal u/s 100 CPC has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first appellate Court, but at the same time its power to interfere with the finding cannot be denied if, when the lower appellate court decides an issue of fact, a substantial question of law arises. The Court further observed as follows: 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 (Emphasis supplied) 14. In J.B. Sharma Vs. State of Madhya Pradesh and Another, AIR 1988 SC 703 the decision of the appellate Court was based on a circular issued by the authorities a month after the termination order. The first appellate Court assumed that the said circular has visited the Plaintiff with a stigma and the termination order, read along with the circular must, therefore, be treated to be penal in nature The High Court reversed this finding on the ground that the circular did not relate to the Plaintiff The Supreme Court upheld this interfere by the High Court and observed as follows: It will thus be seen that the first appellate Court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire documents on the basis of which the finding was recorded. The High Court was, therefore. justified u/s 100 of the CPC to set aside the finding. 15. In Hira Lal and another Vs. Gajjan and others, AIR 1990 SC 723 . The High Court was, therefore. justified u/s 100 of the CPC to set aside the finding. 15. In Hira Lal and another Vs. Gajjan and others, AIR 1990 SC 723 . which was an appeal against the decision of this Court, the first appellate Court discarded relevant khasra entries of 1356 Fasli and the entries in the revenue records, but this Court found that the evidence so discarded was really admissible, set aside the finding and arrived at its independent decision. The Supreme Court upheld this decision of the High Court and observed as follows in para 8 of the report: Section 100(1)(c) of CPC refers to a substantial error or defect in the procedure. The error or defect in the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits. Even if the appreciation of evidence made 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 in the procedure. The Supreme Court further observed as follows: When the first appellate Court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the Court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision, as held in Madan Lal Vs. Mst. Gopi and Another, AIR 1980 SC 1754 16. In Ramchandra Pandurang Sonar (Deceased by L.R's.) and other Vs. Murlidhar Ramchandra Sonar and others, AIR 1990 SC 1973 , (he question involved in the suit was whether suit land was ancestral joint family property and as such, Plaintiff coparcener had a share in it or whether it was self-acquired property of Plaintiff's father. The suit was decreed by the trial Court by answering the question in favour of the Plaintiff. But first appellate Court, having regard to the relevant circumstances, found that the land was self acquired property and accordingly reversed the decree. The High Court, in second appeal, took a contrary view and restored the decree passed by the trial court. The suit was decreed by the trial Court by answering the question in favour of the Plaintiff. But first appellate Court, having regard to the relevant circumstances, found that the land was self acquired property and accordingly reversed the decree. The High Court, in second appeal, took a contrary view and restored the decree passed by the trial court. The Supreme Court held that, on facts, the conclusion arrived at by the first appellate Court were reasonable and legal, besides being conclusion of fact and, therefore, High Court erred in interfering with the conclusions including the mandatory provisions of Section 100 Code of Civil Procedure. The Court observed as follows in para 7 of the report: Thus it is obvious that the conclusions which were arrived at by the first appellate Court were reasonable and legal besides being conclusion of fact. There was, therefore, no question of law involved in the second appeal. Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 CPC that unless it was satisfied that the case involves a substantial question of law, it could not entertain it. 17. The decisions including the decisions relied upon by the learned Counsel for the Appellants, make it quite clear that, in second appeal, the High Court is not normally entitled to interfere in the finding of fact of the first appellate Court This Court will not be competent to interfere in such a finding, however, gross or inexcusable error may seem to be, unless such an interference is called for in accordance with certain well established exception to this rule. Such interference may be made in second appeal where: (i) there is no evidence to support the finding of fact, since arriving at a finding of fact on no evidence becomes a question of law; (ii) finding is based on mere conjectures and surmises; (iii) the finding of fact is based partly on admissible and partly on inadmissible evidence; (iv) Where the first appellate Court ignored the material oral or documentary evidence on record. 18. It may further be noted, as an established principle of law, that, where the High Court finds in second appeal that the first appellate Court has Ignored certain material oral or documentary evidence, it is not necessary for the High Court to remand the case to the first appellate Court for a fresh finding. 18. It may further be noted, as an established principle of law, that, where the High Court finds in second appeal that the first appellate Court has Ignored certain material oral or documentary evidence, it is not necessary for the High Court to remand the case to the first appellate Court for a fresh finding. The High Court may itself consider the evidence, and if necessary, interfere with the fiding. It may also be emphasized that non consideration of evidence must be in relation to evidence which is really material and is of such magnitude as ignoring it would amount to question of law. Mere failure to consider inconsequential or irrelevant evidence would not amount to question of law and will not be sufficient for interference in second appeal. 19. In the present case the learned Counsel for the Appellants referred to the statements of Plaintiffs witnesses, namely, PW 1 Masi Ullah and PW 3 Mobd. Ismail (it should be PW 2, as there are only two witnesses examined on behalf of the Plaintiffs) in support of his submission that they had made certain material admissions in favour of the Defendants, but the learned first appellate Court did not refer to these statements at all in his judgment. This, according to the learned Counsel, is ignoring material evidence and must be considered to be a question of law or substantial question of law. As has already been noted, the proposition of law envisaged by the learned Counsel that, if some material evidence has not been considered by the first appellate Court, it would be an error of law or substantial question of law, is quite correct, but not so the inference that, in the present case, the statements, referred to, were material and omission of the learned first appellate Court in referring to these statements amounts to an error of law or substantial question of law, 20. I have gone through the statements of the Plaintiff's witnesses, referred to by the learned Counsel for the Appellants, and I am of the opinion that these statements were not material and the failure of the learned first appellate Court in referring to these statements could not be considered to be material or of such magnitude as to amount to a question of law. Admittedly Mohd. Admittedly Mohd. Ibrahim, Defendant no 2 vendor of the Plaintiffs was the owner of the land sold by him to Plaintiff No. 1 Zameeran by sale deed dated 21-3-53 (Ext. 1). The point in dispute is as to whether this sale deed included the property in suit. According to the Plaintiffs, the property in dispute is included in the sale deed while, on the other hand, the case, of the Defendant-Appellants is that the land in dispute belonged to Abdul Samad and it was not included in the sale deed executed by Mohd. Ibrahim. It is also contended on behalf of the Appellants that there was another house of Abdul Samad on this land which later fell down and this land was then sold by sons and widow of Abdul Samad (Defendants 2 to 5) to Defendant No. 2, Mohd. Ibrahim, by the sale deed Ext. A-8 Thus, according to the case of both the parties Mohd. Ibrahim was the owner of the land in dispute ultimately. 21. The question that was for consideration before the lower Courts was as to whether the sale deed in favour of the Plaintiff Zameeran included the land in dispute The learned first appellate Court has found that this land was included in the sale deed Ext.-l. This finding has been arrived at by the learned first appellate Court on the consideration of the boundaries mentioned in the sale deed and other evidence, including, the position at the spot as found by the Amin and the admission of DW 3 Hidayat Ullah who is the son of Abdul Samad and one of the executants of the sale deed (Ext. A-8) in favour of Mohd. Ibrahim. The boundaries mentioned in the sale deed are as follows: East: House of Abdul Rehman. West: House of Abdul. Samad (deceased) North: Rasta thereafter house of Ibrahim. South: Rasta thereafter house of Abdulla. The boundaries in the east and south were not disputed and they admittedly relate to the land and khandahar sold by Ext. 1. in regard to the boundary in the north, the Amin has shown a khandahar of Satiar besides the house of Ibrahim. The learned first appellate Court has observed and, in my opinion, quite rightly that this boundary has been loosely described and the omission to mention the khandahar of Sattar is not material. He has rightly pointed out that the sale deed Ext. The learned first appellate Court has observed and, in my opinion, quite rightly that this boundary has been loosely described and the omission to mention the khandahar of Sattar is not material. He has rightly pointed out that the sale deed Ext. A-8, set up by the Defendants, which purports to be in respect of this very property, also mentions only house of Mohd. Ibrahim in the north. If the sale deed Ext. A-8 set up by the Defendants also mentions the house of Mohd. Ibrahim in the north, there could be no material infirmity if only this boundary is mentioned in the sale deed Ext 1. Accordingly, there would appear to be no infirmity in the view taken by the learned first appellate Court in this connection. 22. The main dispute is in regard to the boundary on the western side. It is not disputed that there exists the house of Abdul Samad on the western side of the land in dispute. However, it is contended by the learned Counsel for the Appellants that there was another house of Abdul Samad on this very land in dispute and the reference to the western boundary is in fact, to the other house of Abdul Samad. It is in this connection that the learned Counsel for the Appellants made strenuous effort to show that the statements of PW 1 Masiullah and PW 3 (PW 2) Mohd. Ismail were relevant and supported the version of the Defendants. As will be discussed hereinafter, this is not correct. In this connection, it may be pointed out at this stage that, since it was not disputed that there was only the existing house of Abdul Samad at the spot, at the time the suit was filed or the statements were recorded and there did not exist any other house on the land in dispute, it was for the Defendants to have established by positive evidence that there was another house of Abdul Samad and it was that house which was referred to in the sale deed executed by Defendant No. 2 Mohd. Ibrahim in favour of Plaintiff Zammeran. The learned first appellate Court has found that they have failed to do so and this finding would appear to be based on proper relevant evidence. Ibrahim in favour of Plaintiff Zammeran. The learned first appellate Court has found that they have failed to do so and this finding would appear to be based on proper relevant evidence. Besides the report of the Amin, the learned first appellate Court has relied upon the admissions of DW 3 Hidayat Ullah who is the son of Abdul Samad and has rightly observed that the admissions of this witness, who is one of the executants of the sale deed in favour of Mohd. Ibrahim, was most material. He has pointed out that, according to the admission of this witeess there was a 'GALI' between the house of Abdul Samad and Mohd. Ibrahim and that 'GALI' existed so long as his memory goes. This admission excludes the existence of any house of Abdul Samad on this land, as there has never been any 'GALI' between the land in dispute and the land East to it which admittedly belonged to Ibrahim. The learned first appellate Court has also referred to the admission of this witness that the eastern wall of the existing house of Abdul Samad has been in the same position as it exists today and there has never been any change in it. Admittedly there are no doors in this wall. In this connection, it may also be noted that, according to the further admission of this witness, there is the house of Abdul Samad in the western boundary of the land and khandahar sold to Plaintiff Zamiran by Ibrahim and that the eastern wall of the house so described is of bricks and he has been seeing it in its present condition ever-since he remembers. The learned first appellate Court has rightly come to the conclusion, on the basis of these admissions and other evidence, that there was no other house of Abdul Sarnad on this land in dispute and the house referred to in the sale deed Ext, 1 is the existing house of Abdul Samad. 23. Accordingly, it is obvious that the learned first appellate Court rightly held, on the evidence on record, that the land in dispute is included in the sale deed Ext. 1 and its boundaries tally with the boundaries at the spot. In these circumstances it cannot be said that the statements of PW 1 Masiuliah or PW 2 Mohd. 23. Accordingly, it is obvious that the learned first appellate Court rightly held, on the evidence on record, that the land in dispute is included in the sale deed Ext. 1 and its boundaries tally with the boundaries at the spot. In these circumstances it cannot be said that the statements of PW 1 Masiuliah or PW 2 Mohd. Ismail were material or omission to consider them is an error of such magnitude that it gives birth to a substantial question of law. Consequently the omission of the learned first appellate court in referring to therein and basing his finding on the above mentioned evidence cannot be said to raise any question of law. Since no error of law or substantial question of law could be said to have arisen in the present case, no interference in second appeal in the findings of fact of the first appellate Court is legally permissible, even though it may be assumed for arguments' sake that the finding is grossly erroneous Hiralal v. Gajjan AIR 1980 SC 723 : R.C. Pandurang Sonar (deceased) v. Murlidhar Ram Chandra Sonar (1590) 4 SCC 45. 24. Even assuming, for arguments' sake, that the statements, referred to by the learned Counsel for tat Appellants were material or omission of the learned first appellate Court to conulder them was of a magnitude that it gave birth to a substantial question of law, this Court could still consider that evidence and decide as to whether any interference in the finding arrived at by the learned first appellate Court is called for. Madan Lal v. Gopi AIR 1980 SC 175 Hira Lal and another Vs. Gajjan and others, AIR 1990 SC 723 . Consequently, the submissions of the learned Counsel for the Appellants that the case may be remanded to the learned first appellate Court for giving fresh finding after taking into consideration the statements of the aforesaid witnesses of the Plaintiff must be found to be legally untenable. 25. The statement of Masiuliah PW 1, referred to by the learned Counsel, reads as follows: Jab liye the tab ek Kothari Khaprail ki thi. Es Kothari mein jalane wala rakhte the. Baad mein woh kothari gir gai. It is contended by the learned Counsel that this admission, supports the version of the Defendants that there was another house of Abdul Samad on this land adjoining the existing one. Es Kothari mein jalane wala rakhte the. Baad mein woh kothari gir gai. It is contended by the learned Counsel that this admission, supports the version of the Defendants that there was another house of Abdul Samad on this land adjoining the existing one. This inference is not correct. The location of this kothari has been fixed by this witness in his cros examination wherein he has stated that it was located on the north eastern corner on this land and rest portion was khandahar and that Kothari fell down three years later. Thus this statement of Masiuliah does not really help the Appellants who claim the second house of Abdul Samad adjoining the existing one. 26. The statement of PW 2 Mohd. Ismail, relied upon by the learned Counsel for the Appellants, is to the effect that there was land lower in level to the land in dispute to the East of it, and this land belonged to Ibrahim and that was sold to Zameeran. The learned lower Court is right in his observation that merely difference in level of land cannot lead to the inference that these two portions of the land belonged to two different persons. The statement of this witness does not really exclude the ownership of Ibrahim of the land in dispute and does not adversely affect the inference that it is included in the sale deed dated 21-3-1958. In any case this witness would appear to have admitted that he does not have any personal knowledge in the matter and his statement is based on hearsay only. In any case, the statement of this witness cannot be relied upon in face of the admission made by Defendants' witness DW 3 Hidayat Ullah, who was alleged to be one of the previous owners of this land. 27. In this connection, it may also be observed that even if we go by the principle that, when both the parties lead evidence, the question of burden of proof loses all its significance, the admission of DW 3 Hidayat Ullah and the other evidence, referred to by the learned first appellate Court, must necessarily lead to the inference arrived at by the learned first appellate Court and no interference in that finding is called for. 28. It may also be observed that, once it is found that the sale deed executed by Mohd. 28. It may also be observed that, once it is found that the sale deed executed by Mohd. Ibrahim in favour of Plaintiff No. 1 Zameeran covers the land in suit also, he cannot be beard to say to the contrary, even if it be true that the land did not belong to him at the relevant time. 29. It follows from the above that the finding of fact arrived at by the learned first appellate Court does not suffer from any perversity or material infirmity. The learned first appellate Court has not committed any such error by not taking into consideration the statements of Plaintiffs' witnesses. The omission by the learned first appellate Court is not referring to the statements of Plaintiffs' witnesses, cannot, in the circumstances of this case, and the legal position, be considered to be error of law or substantial question of law. Even if it be so considered, consideration of those statements does not make any difference in the finding arrived at. The view taken by the learned first appellate Court is a rational view based on evidence. Such a finding cannot be interfered with in second appeal. 30. The appeal accordingly fails and is dismissed with costs.