Adhimoola Padayachi v. Arumugha Padayachi — 1997 DIGILAW 1273 (MAD)

JUDGMENT P. Thangavel, J. 1. The suit filed by the plaintiffs for declaration of title to the suit B Schedule property, for recovery of possession of the same and for mesne profits, was decreed by the trial court. But, on appeal by the 2nd defendant the suit was dismissed. Aggrieved, the plaintiffs are before this Court by way of this second appeal. 2. The case of the plaintiffs is as follows: Late Nondi alias Rama Padayachi (hereinafter referred to as Rama Padayachi), through his first wife, had son by name Kesava Padayachi, who died without even getting married and through his second wife Rama Padayachi had two sons, viz., the plaintiffs herein. Rama Padayachi was the owner of the land bearing S.No. 25/1, measuring 2.19 acres described in A Schedule of the plaint and he was in possession and enjoyment of the same. He sold the northern 62 cents out of 2.19 acres along with three other items to one Sivarama Chettiar on 9.8.1929 for Rs. 790 by means of registered sale deed. He was in possession of the remaining 1.57 acres, described in the plaint B Schedule. He sold 38 cents out of the B Schedule property on 3.6.1929 in favour of late Kesi Ammal, his wife and she died intestate, leaving Rama Padayachi and his heirs, as heirs. Therefore, the abovesaid 38 cents sold in favour of Kesi Ammal was also enjoyed by Rama Padayachi and his heirs. Kesava Padayachi executed a settlement deed on 11.5.1966 with regard to his right in the plaint B Schedule property and other properties in favour of the plaintiffs and, therefore, the plaintiffs become entitled to the shares of late Kesava Padayachi also. Rama Padayachi executed two usufructuary mortgages on 1.4.1948 and 16.3.1948 in favour of one Lakshmiammal with regard to 33 cents each, totalling to 66 cents and the abovesaid usufructuary mortgage debts were discharged by the plaintiffs on 30.3.1978 by paying the amount to Rathinasamy, son of Chinnasamy, who is the husband of Lakshmiammal. The plaintiffs are, therefore, entitled to B Schedule property and were in possession and enjoyment of the said property. The plaintiffs are, therefore, entitled to B Schedule property and were in possession and enjoyment of the said property. The defendants, who are the sons of late Vembu Padayachi, claiming right and title over 1.33 acres in A Schedule property, by virtue of the sale deed dated 12,3.1959 executed by the legal heirs of Sivarama Chettiar, in favour of Vembu Padayachi, trespassed over the B Schedule property on 1.7.1978. Hence, the plaintiffs filed the suit for the above said reliefs. 3. The 2nd defendant resisted the suit on the following grounds, while defendants 1 and 3 remained ex parte. His father purchased the northern 71 cents of the B Schedule property as well as 62 cents, totalling 1.33 acres from Kuppammal and Rajathi Ammal Vagaira on 12.3.1959 for Rs. 300 and was in possession and enjoyment of the same from the date of purchase to the knowledge of the plaintiffs and their predecessors-in-title and died intestate in or about 1964. The defendants continued to enjoy the family properties left by their father and divided the abovesaid properties by means of a registered partition deed on 8.1.1969. In the partition, the northern 62 cents purchased by Vembu Padayachi was allotted to the 1st defendant, while the southern 71 cents were allotted to the 2nd defendant. They were in possession and enjoyment of their respective shares separately by paying kist. Even if there was any title to the abovesaid 62 cents and 71 cents mentioned above to the plaintiffs and their predecessors-in-title, the defendants have perfected title to the said properties by adverse possession. Therefore, the 2nd defendant sought for the dismissal of the suit. 4. The trial court, after hearing arguments of both sides and after considering the material evidence placed before it, both oral and documentary, found that the usufructuary, mortgage deeds executed by Rama Padayachi were duly discharged by the 1st plaintiff, that the sale deed dated 12.3.1959 in favour of Vembu Padayachi cannot confer right or title in respect of the entire 1.33 acres, that the partition deed dated 8.1.1969 entered into between the sons of Vembu Padayachi will not be binding on the plaintiffs, that the 2nd defendant had not proved that he has prescribed title to 71 cents in B Schedule property by adverse possession and that therefore, the plaintiffs, who are entitled to B Schedule property, are entitled to the reliefs as prayed by them. In view of the said findings, the trial court decreed the suit as prayed for with costs. 5. Aggrieved, the 2nd defendant has preferred A.S.No. 143 of 1982 before the first appellate court. The first appellate court after hearing the arguments of both sides and after considering the material evidence placed before it, held that Sivarama Chettiar got 71 cents out of the Plaint B Schedule property immediately to the south of 62 cents purchased by him from Rama Padayachi in lieu of 73 cents in S.No. 25/2 by exchange and enjoyed the same in his own right, that the father of the 2nd defendant purchased the abovesaid 1.33 acres from the heirs of late Sivarama Chettiar in the year 1959 and continued to be in possession of the same till 1969 when a partition had taken place with regard to the properties of Vembu Padayachi between the sons of Vembu Padayachi, that the 2nd defendant has perfected title to 71 cents of land in the plaint B Schedule property by adverse possession by enjoying the same for over the statutory period to the knowledge of the plaintiffs and their predecessors in title including the mortgagees, that the 2nd defendant has not claimed right, title or possession to the remaining 86 cents in S.No. 25/1, that there is no cause of action for filing the suit on the ground of alleged trespass by the plaintiffs and that, therefore, the plaintiffs are not entitled to declaration and recovery of possession of the plaint B Schedule property. In view of the abovesaid findings, the first appellate court also held that the plaintiffs are not entitled to mesne profits. On such findings, the first appellate court set aside the Judgment and decree of the trial court and dismissed the suit with costs throughout. Aggrieved by the judgment and decree of the first appellate court, the plaintiffs have come forward with this second appeal. 6. Mrs. S. Radha Gopalan, learned Counsel appearing for the appellants-plaintiffs submitted that the court below failed to note that the vendors under Ex.B-1 had not title to convey anything more then 62 cents, which was earlier purchased by Sivarama Chettiar under Ex.A-1. 6. Mrs. S. Radha Gopalan, learned Counsel appearing for the appellants-plaintiffs submitted that the court below failed to note that the vendors under Ex.B-1 had not title to convey anything more then 62 cents, which was earlier purchased by Sivarama Chettiar under Ex.A-1. She also submitted that the lower appellate court went wrong in holding that the defendants' father was in possession of the disputed 71 cents and the joint patta in Ex.B-2 could be taken to be evidence of possession of the disputed 71 cents also. She further submitted that the lower appellate court erred, in holding that the 2nd defendant has perfected title to the disputed 71 cents by adverse possession in the absence of kist receipts or other documents for a continuous period of 12 years. She also submitted that the court below erred in believing the evidence let in regarding exchange of disputed 71 cents in lieu of 73 cents in R.S.No. 25/2 in the absence of any plea in the written statement and that it went wrong in disbelieving the discharge of usufructuary mortgage deeds. She further submitted that the said mortgages having been discharged only on 30.3.1978 the disputed 71 cents could not have been enjoyed by the 2nd defendant and his predecessors-in-title to claim prescriptive right adverse to the interest of the plaintiffs or their predecessors in title. 7. Per contra, Mrs. Hema Sampath, learned Counsel for the 2nd defendant respondent supported the findings of the first appellate court. She would further contend that the 2nd defendant and his predecessors-in-title had perfected title to the disputed 71 cents by adverse possession by enjoying the same for over the statutory period to the knowledge of the owners of the said 71 cents. 8. I have considered the rival submissions. 9. Admittedly the dispute is only with regard to the northern 71 cents in the B Schedule property. The B Schedule property forms part of A Schedule property, measuring 2.19 acres in S.No. 25/1. Out of that extent, the original owner, viz., Rama Padayachi, the father of the plaintiffs sold 38 cents under the registered sale deed dated 3.6.1929, marked as Ex.A-2, in favour of his wife Kesiammal. The B Schedule property forms part of A Schedule property, measuring 2.19 acres in S.No. 25/1. Out of that extent, the original owner, viz., Rama Padayachi, the father of the plaintiffs sold 38 cents under the registered sale deed dated 3.6.1929, marked as Ex.A-2, in favour of his wife Kesiammal. On the death of Kesi Ammal intestate, the abovesaid 38 cents reverted back to Kasova Padayachi, who is the son of Rama Padayachi through his first wife and who died without marriage, has settled his share in the entire A schedule property in favour of the plaintiffs under Ex.A-5 settlement deed. Thus, it is the case of the plaintiffs that excluding the 62 cents sold by Rama Padayachi to Sivarama Chettiar under Ex.A-1 dated 9.8.1929, the remaining 1.57 acres, described as B schedule property is their absolute property. Per contra, the defendants claim right over an extent of 1.33 acres under Ex.B-1, which includes the above said 62 cents sold in favour of Sivarama Chetty under Ex.A-1 and the northern 71 cents in the B Schedule property. According to the 2nd defendant who was examined as D.W.1, Sivarama Chetty was in enjoyment of 1.33 acres and after his death his legal heirs were in enjoyment of the same and from Pichayee the daughter of Sivarama Chetty through one of his wives Rajathi, and Kuppammal the 1st wife of Sivarama Chetty, Vembu Padayachi, the father of the defendants purchased the said 1.33 acres under Ex.B-1 and therefore the said extent was in the possession of his family. Here, it is pertinent to note that there is no dispute over the 62 cents sold by Rama Padayachi to Sivarama Chettiar under Ex.A-1, and the plaintiffs dispute the claim of the 2nd defendant over the remaining 71 cents lying immediately to the south of it in the B Schedule property. According to the 2nd defendant the said extent was got by Sivarama Chettiar from Rama Padayachi in exchange of 73 cents in R.S.No. 25/2. But, in the written statement no such plea has been raised by the 2nd defendant. For the first time, only during the course of evidence as D.W.1, the 2nd defendant comes forward with this case of exchange, Except interested ipse dixit of D.W.1, there is no independent evidence with regard to this theory of exchange. But, in the written statement no such plea has been raised by the 2nd defendant. For the first time, only during the course of evidence as D.W.1, the 2nd defendant comes forward with this case of exchange, Except interested ipse dixit of D.W.1, there is no independent evidence with regard to this theory of exchange. It is now well settled that no amount or oral evidence could be looked into on a plea that was never put forward. The lower appellate court has come to the conclusion that by way of exchange as deposed by D.W.1, Vembu Padayachi might have got that 71 cents in lieu of 73 cents in S.No. 25/2. But it must be remembered that findings cannot be based on conjectures and surmises. Therefore, I am of the considered view that the theory of exchange put forward by the 2nd defendant during the course of his evidence, cannot be accepted and cannot be acted upon. 10. If the vendors under Ex.B-1 had no valid title to convey the entire 1.33 acres covered thereunder, it has to be seen whether the 2nd defendant and his predecessors have perfected title over the disputed 71 cents by adverse possession, as claimed by him, right from the date of Ex.B-1. The 2nd defendant does not dispute the usufructuary mortgages under Exs.A-3 and A-4 in the year 1948 by Rama Padayachi in favour of Lakshmiammal. He disputes only the discharge of the said mortgages on 30.3.1978 under Exs.A-6 and A-7 by the 1st plaintiff by paying the amount to one Rathinasamy, son of mortgagee's husband Chinnasamy through his another wife. In this connection it is pertinent to note that the plaintiffs have specifically pleaded in the plaint about the abovesaid discharge. But, the abovesaid pleadings of discharge have not been specifically denied by the 2nd defendant in the written statement. It is only at the time of evidence, he has come forward with the case that Rathinasamy is not the heir of Lakshmiammal, the mortgagee and that the plea of discharge pleaded by the plaintiffs is not true. Such a belated stand taken by the 2nd defendant cannot be safely acted upon. It is only at the time of evidence, he has come forward with the case that Rathinasamy is not the heir of Lakshmiammal, the mortgagee and that the plea of discharge pleaded by the plaintiffs is not true. Such a belated stand taken by the 2nd defendant cannot be safely acted upon. Further, the 1st plaintiff Athimoolam, who was examined as P.W.1 in this case, would state that the debt due under Exs.A-3 and A-4 were discharged under Exs.A-6 and A-7 dated 30.3.1978 by paying the amount to Rathinasamy the heir of Chinnasamy, who is the heir of Lakshmiammal. The evidence of P.W.1 is supported by documentary evidence Exs.A-5 and A-6 and the evidence of P.W.3, Palani, who was examined in support the case of the plaintiffs. He has attested Exs.A-6 and A-7 and had spoken not only about, attesting Exs.A-6 and A-7 but also had spoken about the act of Rathinasamy signing Exs.A-6 and A-7, which were written by one Narayanan. If the documentary and oral evidence stated supra are taken into consideration, it is quite clear that Rama Padayachi had executed usufructuary mortgage deeds Exs.A-3 and A-4 in favour of Lakshmiammal and put her in possession of the property covered thereunder with liberty to pay kist for the said property by her till discharge of the said debt and that the said mortgages were discharged as seen from Exs.A-6 and A-7. 11. In the light of the above finding that Exs.A-3 and A-4 usufructuary mortgages and their discharge under Exs.A-6 and A-7 are true and valid, it has to be examined whether the 2nd defendant has perfected title over the disputed 71 cents by adverse possession for over the statutory period. In this case it cannot be said that the 2nd defendant was in possession of the said property in denial of the mortgagor's right, nor can it be said that the 2nd defendant or his predecessors have openly acted so as to assail the right of the mortgagor to redeem. To claim adverse possession in cases of this nature, there must be a manifest assertion of title incompatible with that of the mortgagor and there must be something done or declared excluding the mortgagor's power to resume possession at will. But no such plea was put forward in this case, nor was established. 12. Further in Zinda v. Mt. Roshnai A.I.R. 1928 Lah. But no such plea was put forward in this case, nor was established. 12. Further in Zinda v. Mt. Roshnai A.I.R. 1928 Lah. 250 it has been held as follows: Where a mortgagee is let into possession, his position is to some extent of a trustee and he is bound to protect the interests of the mortgagor and to prevent any invasion of his rights by a stranger. If the mortgagee by neglect or collusion allows any person to come into possession of the property, for instance a purchaser of equity of redemption under an invalid sale, there will be no invasion 6f the rights, of the mortgagor and when the time for redemption comes, he will be entitled to treat the stranger as a trespasser and the stranger's right by adverse possession against the mortgagor will not commence unless and until the mortgagor had sought to exercise the right of redemption and redeemed the property. It has also been held in Salignam v. Gauri Shankar AIR1935All542 , that if the mortgagor is not entitled to any kind of possession or enjoyment of the mortgaged property during the continuance of the usufructuary mortgage, the mortgagor is not entitled to sue a trespasser for possession. It is the mortgagee alone who can do so and if the mortgagee does not care to bring such suit for more than 12 years, Section 28, Limitation Act operates to extinguish the mortgagee's title to the property in possession of a trespasser. The mortgagor's right to sue for possession accrues for the first time when after redemption he is unable to take possession of part of the mortgaged property which he find to be in possession of trespasser, who denies his title to it. He becomes entitled to sue the trespasser when he redeems the property and is opposed by the trespasser. 13. Further, in Shukar Hanan v. Malkappa AIR1980Bom213 , it has been held as follows: The rights of the mortgagor are liable to invasion equally with those of mortgagee. However, the party claiming to hold adversely to the mortgagor has to prove that he was in possession in denial of mortgagor's right; there must be something amounting to ouster of the person against whom adverse possession is claimed. However, the party claiming to hold adversely to the mortgagor has to prove that he was in possession in denial of mortgagor's right; there must be something amounting to ouster of the person against whom adverse possession is claimed. There must be some adverse act sufficient to give a person to be affected by it an opportunity of knowing that his rights are being infringed and that occasion has arisen for action by him to protect them. There may be possession adverse to the mortgagee which is not adverse to the interest of the mortgagor. It has to be shown that the person in possession has openly acted so as to assail the right of the mortgagor to redeem. There must be a manifest assertion of title incompatible with that of the mortgagor. In other words, there must be something done or declared, excluding his (mortgagor's) power to resume possession at will. If the mortgagee, who has been placed in possession by the mortgagor is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage, as a mortgagee or he may be an adverse claimant to the mortgagor right; where more that one inference may be drawn that inference should not be drawn which imputes a wrongful act to a person. The defendant has, therefore, to show mat he took possession of the property as absolute property to the knowledge of the mortgagor in denial of the rights of the mortgagor. Therefore, it is evident that the 2nd defendant can claim that he and his predecessors-in-title were in possession and enjoyment of the abovesaid 71 cents of land, adverse to the interest of the plaintiffs and their predecessors-in-title only after extinguishing the mortgagee's right and after the redemption of the usufructuary mortgages and not during the subsistence of the mortgages. 14. In this case, there is no documentary evidence on the side of the defendants to establish that Sivarama Chettiar was in possession and enjoyment of the abovesaid 71 cents at any time before the execution of the sale deed Ex.B-1 dated 12.3.1959 with regard to 1.33 acres in favour of Vembu Padayachi by Kuppammal for herself and as guardian of Pichayi Ammal. A perusal of Ex.B-2 Chitta extract for fasli 1368 produced for proving possession of the abovesaid 71 cents would disclose that the name Vembu Padayachi was included in the place of Kuppammal along with Adhimoola Padayachi only in 1968. It is relevant to point out that out of 1.33 acres alleged to have been purchased by Vembu Padayachi under Ex.B-1, Sivarama Chettiar was having valid title only for 62 cents. Therefore, Ex.B-2 may not help to establish the possession of 71 cents also by Vembu Padayachi. No kist receipt has also been produced for patta No. 38, in which S.No. 25/1, measuring about 2.19 acres is situate, in the name of Vembu Padayachi. No adangal extract has also been produced for possession of the disputed 71 cents either by Sivarama Chettiar or his heirs or by Vembu Padayachi. D.W.1 would admit at the time of evidence that no kist receipt standing in the name of his father was produced before court to prove possession. Ex.B-4 is the Chitta extract for fasli 1388 to 1390 for Patta No. 38, standing in the name of the plaintiffs and the 2nd defendant. It also would not disclose that the 2nd defendant was in possession and enjoyment of 71 cents separately out of the B Schedule property. On the other hand it would disclose about the joint possession of the lands in S.Nos.25/1 and 25/2 in Ulundoor Village from 1979 to 1981. Ex.B-6 is the Patta Book standing in the name of the plaintiffs and the 2nd defendant for the lands covered under Patta No. 38 issued for the lands measuring about 2.19 acres in S.No. 25/1 and 73 cents in S.No. 25/2. Therefore, the abovesaid documents will not also help the 2nd defendant to establish his exclusive possession for 71 cents against the interest of the plaintiffs or their predecessor in title. Exs.B-7 to B-13 are kist receipts standing in the name of the 2nd defendant for the years 1971, 1973, 1974, 1976 1979 and 1980. It is relevant to point out that this suit was filed by the plaintiffs against the 2nd defendant and his brothers even in the year 1979 itself. Therefore, the kist receipts produced by the 2nd defendant as mentioned above will not help to establish that the 2nd defendant has been in possession of 71 cents for over a period of 12 years. Therefore, the kist receipts produced by the 2nd defendant as mentioned above will not help to establish that the 2nd defendant has been in possession of 71 cents for over a period of 12 years. But the same will cover only a period of 9 years with a break of three years in the middle. Of Course D.W.2 was examined in support of the case of the 2nd defendant to establish his right to 71 cents by adverse possession. When there is no documentary evidence for possession and enjoyment of the abovesaid 71 cents continuously for a period of 12 years and more, the oral evidence of D.W.2 cannot be safely acted upon. 15. Learned counsel for the 2nd defendant contended that the 2nd defendant can avail himself or on to his own adverse possession the adverse possession of his predecessors-in-title and if such adverse possession is availed of or tracked on, the possession of the 2nd defendant will be for more than 12 years and for such contention, the learned Counsel relied on the decision in Secretary of State v. Debendra Lal. But, in the present case, as already stated, there is no acceptable evidence to establish that either Sivarama Chettiar and his heirs or Vembu Padayachi was in possession of the disputed 71 cents before the 2nd defendant allegedly entered into possession of the abovesaid 71 cents against the interest of the plaintiffs. Therefore relied on by learned Counsel for the 2nd defendant, will not come to the rescuer of the 2nd defendant. Likewise, the decision in Navaneethammal v. Arjuna Chetty AIR1996SC3521a relied on by the learned Counsel for the 2nd defendant in favour of the case of 2nd defendant with regard to adverse possession will not also help the 2nd defendant since the principles laid down in that case by the Apex Court will have no application to the facts and circumstances of this case. 16. Learned counsel for the plaintiffs-appellants brought to the notice of this Court the decision in S. Subba Reddiar and Ors. v. Bhagyalakshmi Ammal and another (1996)2 L.W.31 wherein it was held as follows: What was the adverse character and when it started are only within the personal knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. v. Bhagyalakshmi Ammal and another (1996)2 L.W.31 wherein it was held as follows: What was the adverse character and when it started are only within the personal knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. Article 65 of the Limitation Act provides that for recovery of possession on the basis of the title, 12 years from the date on which adverse possession began. So, a definite date is required to claim adverse possession. In the present case, the 2nd defendant has not pleaded and proved a specific date from which adverse possession had commenced against the plaintiffs or their predecessors-in-title. If the principles laid down in the decision cited supra is applied to the facts and circumstances of this case, it will stare against, the interest of the 2nd defendant, so far as the claim for adverse possession is concerned. 17. In the above circumstances, learned Counsel for the plaintiffs was right in contending that the 2nd defendant, who has to prove that he has been in possession and enjoyment of the property measuring 71 cents for over the statutory period to claim title to the said property by adverse possession, has failed to establish the same by adducing necessary evidence. For the foregoing reasons, this Court holds that the 2nd defendant has failed to establish that he has perfected title by adverse possession over the disputed 71 cents, by enjoying the same for over the statutory period against the interest of the plaintiffs and their predecessors-in-title. 18. Learned counsel for the 2nd defendant would contend that the plaintiffs cannot abandon their own case and claim reliefs on the basis of the case of the defendants, and in support of such contention, relied on the decisions in Madhavan v. Kannammal (1990)2 L.W. 274, C. Lakshmi Rajyam v. The Commissioner of Income Tax, Madras (1960)2MLJ276 and Govindaraj v. Kandasami Gounder (1956)2MLJ578 . But, in the present case there is nothing to show that the plaintiffs have relied on the case of the 2nd defendant, abandoning their own case, as seen from the submission made on the side of the plaintiffs, as stated supra. But, in the present case there is nothing to show that the plaintiffs have relied on the case of the 2nd defendant, abandoning their own case, as seen from the submission made on the side of the plaintiffs, as stated supra. In view of the abovesaid circumstances, this Court is of the opinion that the decisions cited supra by learned Counsel for the 2nd defendant will not in any way improve the case of the 2nd defendant. 19. Learned counsel for the 2nd defendant placed reliance upon the decision of the Apex Court in Kshitish Chandra Purkait v. Santhosh Kumar Purkait (1997)3 L.W. 220 and contended that unless a substantial question of law is involved in the second appeal, this Court has got no jurisdiction to interfere with the judgment and decree of the first appellate court under Section 100, C.P.C. Of course, the Apex Court has held as follows: The proviso to the Section shows that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a "substantial" question of law" is thus, the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C. It has also been held in Navaneethammal v. Arjuna Chetty AIR1996SC3521a , that the High Court should not interfere with the concurrent findings of the courts below by reappraising the evidence and arrive at another possible view. It has also been held in the said decision that interference with the concurrent findings of the courts below by the High Court under Section 100, C.P.C. must be avoided unless warranted by compelling reasons. 20. In this case, the following substantial question of law were formulated for consideration by M.A. Sathar Sayeed, J. at the time of admission: (1) Whether the second defendant can be said to have title by way of acquisition or adverse possession to the disputed 71 cents when admittedly the same were subjected to two usufructuary mortgages? 20. In this case, the following substantial question of law were formulated for consideration by M.A. Sathar Sayeed, J. at the time of admission: (1) Whether the second defendant can be said to have title by way of acquisition or adverse possession to the disputed 71 cents when admittedly the same were subjected to two usufructuary mortgages? (2) Whether the finding/ of adverse possession be sustained when the same was not proved to be continuous for over the statutory period of 12 years in the face of producing kist receipts under Exs.B-7 to B-13 only for the years 1971 to 1979. (3) Whether the findings as regards exchange be sustained without any such plea in the written statement without any issue being framed and without only documentary evidence in this behalf? (4) Whether the dismissal of the suit in its entirety be sustained when it is found that the plaintiff is entitled to 86 cents of the suit property? In order to decide the abovesaid substantial questions of law formulated at the time of admission, this Court has no other alternative except to appreciate the evidence available in this second appeal. It is held by the Apex Court in Navaneethammal v. Arjuna Chetty AIR1996SC3521a , this Court can even interfere with the concurrent findings of the courts below, if it is warranted by compelling reasons. In this case, there is no concurrent findings by the courts below. Apart from that the trial court based its conclusion on the material evidence available before it and also weighing the evidence let in by the witnesses. But the first appellate court has come to a contrary conclusion without appreciating the evidence properly and also accepting hearsay evidence with regard to the alleged exchange pleaded by the 2nd defendant at the time of trial for the first time, without raising such pleadings in the written statement. The first appellate court has not decided as to when adverse possession will commence with regard to the property in the possession of the mortgagee. Further, there is no proof for continuous and uninterrupted possession of 71 cents by the 2nd defendant and his predecessors-in-title for over the statutory period. The first appellate court has not decided as to when adverse possession will commence with regard to the property in the possession of the mortgagee. Further, there is no proof for continuous and uninterrupted possession of 71 cents by the 2nd defendant and his predecessors-in-title for over the statutory period. The first appellate court has erred in even refusing to grant a decree as prayed for with regard to 86 cents of lands, which the plaintiffs are entitled to even according to the conceded case of the 2nd defendant. Thus, I am of the considered view that there are compelling reasons in this case warranting reappreciation of the evidence in order to come to a conclusion as to whether the 2nd defendant has perfected title over the disputed 71 cents by adverse possession. Therefore, this Court holds that the contentions raised by the learned Counsel for the 2nd defendant relying on the two decisions referred to supra, cannot advance the case of the 2nd defendant. In view of my foregoing discussion, it is quite clear that the substantial questions of law formulated in this case do arise and the lower appellate court erred in coming to the conclusion that the 2nd defendant has perfected title to the disputed 71 cents by adverse possession and in believing the theory of exchange put forward at the time of trial in the absence of plea in the written statement. 21. In. Subhiah Pillai (died) and Ors. v. M.A. Thirunavukkarasu Pillai, (died) and Ors. (1996)2MLJ16 , it has been held as follows, after observing that there where the inference from facts or the of the conclusion drawn form the facts is questioned, it is a question of law and can be questioned in the second appeal even though, in second appeal, findings of fact cannot be interfered with: The appellate court is bound by the finding of fact only if it is a concurrent finding. Therefore, where the findings between the trial court and the first appellate court are not concurrent findings and when the finding of the first appellate court has been arrived by placing the on use of proof wrongly, it is a question of law, which can be gone into in the second appeal. Therefore, where the findings between the trial court and the first appellate court are not concurrent findings and when the finding of the first appellate court has been arrived by placing the on use of proof wrongly, it is a question of law, which can be gone into in the second appeal. It has also been held in Thangavel Udayar v. R.K. Raju Mudaliar (1997)1MLJ19 , that the if the finding is not supported by acceptable evidence or based on misconception, the High Court can interfere in second appeal. As discussed earlier, it is quite clear that the findings arrived at by the first appellate court in this case are not supported by acceptable evidence and they are based on misception. Therefore, this Court is inclined to interfere with the findings rendered by the first appellate court in this case. 22. In the result, the second appeal is allowed, the judgment and decree of the first appellate court are set aside and that of the trial court are restored. In the circumstances of the case, the parties are directed to bear their own, costs throughout.