JUDGMENT Arun Kumar Goel, J. :- Facts out of which this appeal has arisen are that appellant, hereinafter referred to as the plaintiff, filed a suit for possession and recovery of Rs.1950/- against the respondent, hereinafter referred to as the defendant. Basis of this suit was that prior to him his ate father. Shri Ratti Ram was the owner of a doubled sorroyed structure consisting of one shop in the ground floor and one room in the first floor standing on Khasra No.860/81/2. Khata No. 134. Khatauni No. 136. measuring 1 biswa situated at Mauza Junga (Chaunri). Pargana Parali. Tehsil and District Shimla. According to him these premises are bounded and abutted as under:- In front : Shimla-Junga Road. On the back : Civil Hospital Compound. On one side : Room occupied by Surinder Halwai and On the other side : Vacant land of the plaintiff. 2. Plaintiff also claimed that his father filed civil suit No.208/1 of 1979 against the defendant regarding suit property which was compromised on 7.1.1982. As a result of this compromise, defendant admitted the father of plaintiff to be the owner and further agreed to pay the amount of arrears in the sum of Rs.600/- by installments and to further continue to pay the rent of the premises in future at the rate of Rs.50/- per month. During the pendency of this suit, according to the plaintiff, his father renovated the premises by adding one more storey which was also let out to the defendant. Defendant neither cared to pay the agreed rent for this structure nor paid any amount in terms of decree. Further case of the plaintiff is that he instituted a suit for possession and recovery of money being civil Suit No.228/1 of 1984. This was decided by Sub Judge 1st Class (I). Shimla. on 17.1.1986. However, it was allowed to be withdrawn by District Judge. Shimla, in Civil Appeal No.49-S/83 of 1986, on 20.5.1987. Liberty was reserved according to the plaintiff, in his favour subject to cost of Rs.75/- which he claims to have deposited. 3. Defendat when put to notice, contested and resisted the claim of the plaintiff. According to him suit of the plaintiff is not maintainable in its present form, as also it is bad for failure to join State of H.P. as party besides other necessary parties. 3. Defendat when put to notice, contested and resisted the claim of the plaintiff. According to him suit of the plaintiff is not maintainable in its present form, as also it is bad for failure to join State of H.P. as party besides other necessary parties. Estoppel on account of the acts, deeds, conduct, lapses and consent was also set-up as a ground. It was further pleaded that Khasra No.868/61 is in the ownership and possession of the plaintiff. According to him, plaintiff has not disclosed as to how he acquired ownership of the suit land and present suit is an act of pure and simple harassment by the plaintiff. It was further pleaded that in the notice dated 4.10.1983. plaintiff claimed tenancy in respect of accommodation consisting of two rooms in the ground floor of a double strayed house upon the area of Khasra No.860/81/1. measuring 2 biswas, whereas in the present suit he has claimed ownership over one room in the ground floor and one room in the first floor. Thus the claim was contradictory. 4. It may be noted that while denying relationship of landlord and tenant, defendant placed reliance on notice dated 20.4.1987 issued on behalf of plaintiff and his reply to it dated 1.6.1987. he claims to have vacated the premises which were hired by him at the rate or Rs.50/- per month, in October. 1979 Thereafter he ceased to be a tenant under the father of the plaintiff, as such there was no question of his being tenant, as claimed in the plaint. The premises in his occupation were his own creation after he vacated the tenanted premises in October. 1979 with which plaintiff was nothing to do. Claim in this behalf made by the plaintiff was false and aimed at grabbing the property in question. He also alleged that no repair were carried out by late Shri Ratti Ram. At the same time, it was pleaded that defendant has no concer with the alleged construction of the plaintiff. Order of withdrawal of the suit was alleged to be illegal, wrong and without jurisdiction, as such, he was not bound by the same. Rather plaintiff was bound by the admissions made by him during such proceedings. At the same time, it was pleaded that defendant has no concer with the alleged construction of the plaintiff. Order of withdrawal of the suit was alleged to be illegal, wrong and without jurisdiction, as such, he was not bound by the same. Rather plaintiff was bound by the admissions made by him during such proceedings. In replication to these pleadings of the defendant, plaintiff denied the averments made in the written statement which were contrary to facts detailed in the plaint and reiterated those. 5. In the aforesaid background trial Court after framing the issues and taking note of oral as well as documentary evidence decreed the suit. When this decision was challenged in appeal, the same has been reversed, consequently suit of the plaintiff stands dismissed. Hence this second appeal at his instance. . 6. This appeal was admitted on 15.12.1995 on the following substantial questions of law :- 1. When the defendants admitted the plaintiff to be the landlord and owner of the disputed premises, is it permissible for him to deny the title at a later stage? 2. Whether the tenant is stopped to challenge the title of the owner during the currency of the lease, when in the previous judicial proceedings the title of the plaintiff as well as the relationship of landlord and tenant has been admitted? 3. Whether the ownership of the land below the structure is impossible to decide the suit filed by the owner of the structure against his tenant, for ejectment under the provisions of section 106 of the Transfer of Property Act. ? 4. How far the rule of estoppel as contained in Section 116 of the Evidence Act is applicable-to a party to a suit when the relationship of landlord and tenant stood conclusively determined in the previous proceedings between the same parties with respect to the same premises? 7. Mr. Gupta, learned Senior counsel appearing for the plaintiff submitted that the impugned judgment and decree is not only a case of complete misreading and misconstruciton of the evidence on record but is also perverse. As according to him in no case such findings could have been arrived at. By referring to oral and documentary evidence, particularly statement of his client as PW-1. of defendant as DW-1. his previous statement made when suit was compromise vide Ex.PX and compromised judgment and decree Ex. As according to him in no case such findings could have been arrived at. By referring to oral and documentary evidence, particularly statement of his client as PW-1. of defendant as DW-1. his previous statement made when suit was compromise vide Ex.PX and compromised judgment and decree Ex. PW-l/J and Ex.PW-1/K. he submitted that conclusions arrived at by the appellate court below could not have been arrived at. He also submitted that reliance placed on behalf of defendant on notice dated 4.10.1983. Ex.PW-1/A as well as reply to subsequent notice dated 20.4.1987. Ex.PW-1/C and its reply dated 1.6.1987 vide Ex.DW-1/A is wholly misconceived and ill founded, as according to him with the allowing of the suit to be withdrawn vide Ex.PW-1/N and decree being passed in terms thereof, no benefit can be derived from the notice, of the year 1983 and to reply of notice. He further submitted that plaintiff is bound by his admissions made vide Ex.DX as well as judgment and decree passed in terms thereof. 8. On the other hand, learned Senior counsel appearing for the defendat, submitted that this appeal has no merit which is liable to be dismissed. Per him findings regarding there being no relationship of landlord and tenant between the parties are purely of fact which do not call for any interference, that too on reappreiaiton of evidence. He while controverting the pleas urged on behalf of the plaintiff, submitted that plaintiff is bound by his admissions as contained in the plaint of the previous suit. Ex.DB and the notice Ex.DA. therein premises are shown to be two rooms in the ground floor and one room in the first floor. Thus the suit merits dismissal. He also placed reliance on the statement of plaintiff in the suit that was allowed to be withdrawn. Thus he has prayed for dismissal of the present appeal. 9. Questions No.l to 4 supra are being taken up for decision together to avoid repetition. 10. Plaintiff, while appearing as PW-1 has withstood the test of cross examination while supporting his claim to be the owner of premises in question, those having been renovated by his late father during the pendency of the earlier litigation of 1979 that was compromised vide Ex.DX. 10. Plaintiff, while appearing as PW-1 has withstood the test of cross examination while supporting his claim to be the owner of premises in question, those having been renovated by his late father during the pendency of the earlier litigation of 1979 that was compromised vide Ex.DX. He has further established that prior to filing of the present suit notice was issued by him terminating the tenancy of the plaintiff vide Ex.PW-1/C. In this behalf it may appropriately be noted that defendant while appearing in the witness box as DW-1. admits the matter having been compromised in suit No.208/1 of 1979 which was compromised on 7thJanuary, 1982. 11. In this behalf it may be appropriately mentioned that the suit was filed in the year 1979. Defendant in his written statement as well as while in witness box alleges that he vacated the premises in October. 1979. If that was so. there was no occasion muchless ground for his having agreed to not only pay the suit amount in installments, but also continue paying future rent at the rate of Rs.50/- per mensum. There was nothing that prevented the defendant at that point of time to have stated that he has given up possession to the father of the plaintiff as far as back in the month of October. 1979. In addition to this as DW-1. he has admitted the description of the premises to be one as given in the plaint so far as location there :f is concerned. It is specific case of the plaintiff that he is the owner of the premises in question, hi the face of this evidence. plea on the part of the defendant that he is not a tenant of the premises detailed in the suit and/or his having- vacated those and having further constructed his own premises after October. 1979 cannot be accepted. Learned District Judge below completely ignored this vital and important evidence and appears to have been swayed by wholly irrelevant and extraneous consideration which is not supported by the materials on file. 12. A plea urged by learned Senior Counsel for the defendant may also be noted here. According to him State of Himachal Pradesh is the owner of land comprised in Khasra No.866/81. of which the land whereon structure is standing is a part. According to him, State should have been made a party. 12. A plea urged by learned Senior Counsel for the defendant may also be noted here. According to him State of Himachal Pradesh is the owner of land comprised in Khasra No.866/81. of which the land whereon structure is standing is a part. According to him, State should have been made a party. Suffice it to say that in case State has any grievance against the plaintiff, it can deal with him. In this behalf it may also be appropriate to observe that defendat is precluded from disputing the title of the plaintiff so far structure is concerned. It is for the State to deal with plaintiff if what the defendat alleges is taken to be correct. There is overwhelming evidence on record from which only one conclusion is possible, that the structure standing on Khasra NBo. 860/81/2. measuring 1 biswa, as detailed hereinabove. belonged earlier to his father and after his death to the plaintiff. 13. Section 116 of the Evidence Act estops the defendant from! raising this plea in the face of the overwhelming documentary evidence which has been completely ignored by the appellate court below. 14. In Smt. Shanti Sharma & Ors. v. smt. Ved Prabha & Ors. AIR 1987 SC 2028, while construcing the expression owner under the Delhi Rent Control Act, it was held as under:- " Where the plot of land is taken on long lease from authority constituted by the State and the structure is built by the landlord and thus admittedly he is the owner of the structure as against the tenant, it could not be doubted that the owner of the structure will fall within the ambit of the meaning of the term "owner" as is contemplated under Section 14(1)(e). He is entitled to seek eviction of tenant on ground of bona fide requirement" 15. To similar effect is the decision the Madhya Pradesh High Court in Prem Shanker Dave v. Shikha Bai & On. 1993(1) All India Rent Control Journal 111. Where in after following the aforesaid decision of the supreme Court the High Court negatived the plea of the defendant which was identically based as in the present second appeal. 16. To similar effect is the decision the Madhya Pradesh High Court in Prem Shanker Dave v. Shikha Bai & On. 1993(1) All India Rent Control Journal 111. Where in after following the aforesaid decision of the supreme Court the High Court negatived the plea of the defendant which was identically based as in the present second appeal. 16. I am further satisfied that in order to maintain the suit as owner of the structure against his tenant, (like defendant), a person like plaintiff was neither required to show nor law enjoins a duty on him to establish that he has a right to the land below the structure. Section 116 of the Evidence Act. as already observed, is clearly attracted to the facts of this case. Further without determining the question of title relating to the land underneath the structure. Appellate Court below should have determined the controversy between the parties, as had been rightly done by the trial Court. 17. The plea urged on behalf of the defendant that plaintiff is bound by his admissions made in the notice and plaint of the earlier suit (which was allowed to be withdrawn during appeal) is concerned, needs to be now gone into. After having gone through the record. I find that much capital cannot be made from such a plea. Reason being firstly the admission of the defendant in the suit of 1979, referred to hereinabove and secondly the judgment allowing withdrawal of the suit wherein admission is alleged to have been made vide Ex.PW-1/N. A reference to Ex.PW-1/N completely negatives this plea. Learned appellate court in that case framed the following points :- 1. Whether the application under Order 23 Rule 3 C.P.C. deserves to be allowed? 2. Final order. 18. And while dealing with point No.l has taken note of the negligence/inadvertent omissions and observed as under: - "12. Mr. Verma. counsel for the respondents submits that the withdrawal cannot be allowed as it is just to get rid of adverse findings against the plaintiff. The court is to see while allowing the withdrawal the facts and circumstances of the case and whether there are sufficient grounds to institute a fresh suit or not. So. Mr. Verma. counsel for the respondents submits that the withdrawal cannot be allowed as it is just to get rid of adverse findings against the plaintiff. The court is to see while allowing the withdrawal the facts and circumstances of the case and whether there are sufficient grounds to institute a fresh suit or not. So. under order 23 Rule 1(3) C.P.C is laid down: (a) That a suit must fail by reason of some formal defect or (b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim." 13. I am of the view that there are sufficient grounds to allow the withdrawal of the suit and the ends of justice will be met if the withdrawal is allowed. Therefore, I decide the point accordingly. POINT NO. 2 14. In view of the reasons recorded, the application under order 23 Rule 1(3) C.P.C. is allowed on payment of costs of Rs.75/-.The plaintiff is further allowed to file fresh suit on the same subject matter in accordance with law after depositing Rs.75/- in the trial Court. The appeal is dismissed as the suit has been withdrawn." 19. In case defendant was aggrieved by this judgment, there was nothing that prevented him, to have challenged this judgment and decree in appeal. Admittedly, it has attained finality between the parties. 20. Further one of the reasons which prevailed with the appellate court while passing Ex.PW-1/N was misdescription of the terms. Therefore, this plea has been raised simply to be rejected. It may be relevant to observe here that it was not disputed at the time of hearing of this appeal on behalf of the parties that cost levied vide Ex.PW-1/N stands deposited. 21. Therefore, this plea has been raised simply to be rejected. It may be relevant to observe here that it was not disputed at the time of hearing of this appeal on behalf of the parties that cost levied vide Ex.PW-1/N stands deposited. 21. On an over all consideration of the whole case, as well as examination of the materials on record, I am further satisfied that conclusions arrived at by the learned District Judge were not at all possible, In fact impugned judgment and decree is the result of complete mis-construction and misappropriation of evidence and in fact is perverse which needs to be interfered with in the present appeal. 22. No doubt, after its amendment scope of interference in an appeal under Section 100 C.P.C. is very limited, still where a decision of the appellate court being last court of fact is contrary to provisions of law or is contrary to law as pronounced by the Supreme Court or is based on inadmissible evidence or no evidence, this court is not precluded from examining the same, this is what was observed by the Supreme Court in Kondiba Daqadu Kadam v. Savitribai Sopan Gujar & Ors. 1999 (3) SCC 722:Current Law Journal 1999 (2) (C.Cr.Rev.):470. 23. Applying the test laid down in this judgment as well as keeping in view the evidence briefly referred to hereinabove, I am satisfied that the findings recorded while dismissing the suit of the plaintiff by the appellate court below could not have been arrived at. 24. In Satya Gupta (Smt.) Alias Madhu Gupta v. Brijesh Kumar 1998 (6) SCC 423. while dealing with appeal under Section 100 C.P.C. Supreme Court held that where findings of fact of the lower appellate court are based on evidence. High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible. So far the legal proposition of law laid down in this decision is concerned, there can hardly be any dispute with it. However, when it is applied to the facts of the present case, as already observed, conclusions arrived at by the learned district Judge below were not at all possible. Therefore, this is a fit case when interference in this second appeal is called for. 25. Reference to Nathu Ram v. Atam Parkash & Ors. However, when it is applied to the facts of the present case, as already observed, conclusions arrived at by the learned district Judge below were not at all possible. Therefore, this is a fit case when interference in this second appeal is called for. 25. Reference to Nathu Ram v. Atam Parkash & Ors. 1999 (2) SLC 431 besides the above two decisions on behalf of the defendant, does not improve his case for the view that has been taken hereinabove. 26. So far matter relating to scope of interference under Section 100 C.P.C. is concerned, it may be noted that there is no absolute bar as such which prohibits this court from interfering with the findings recorded by the appellate court below. Power is there, the only thing is under what circumstances it is to be exercised- is seen by this court. For taking this view, reference can be made to Santosh Hazari v. Purushottam Tiwari (Dead) by LRs AIR 2000 SCW 723. Sundra Naicka Vaidyar (Dead) by LRs & Anr. v. Ramaswami Ayyar (Dead) By His LRs 1995 Supp. 4 SCC 534. 27. To similar effect is the decision of Supreme Court in Shri Hafazat Hussain s/o. Mubarak Hussain v. Abdul Majeed s/0 Sri Wali Mohd. alias Sheikh Ballon & Ors. JT 2001 (G) SC 591. 28. No other point is urged. 29. In view of the aforesaid discussion, this appeal is allowed and all the aforesaid four questions are answered in favour of the plaintiff and against the defendat. Thus, the impugned judgment and decree passed by the learned District Judgev Shimla in Civil Appeal No. 51-S/13 of 1990, dated 25.4.1994 in case titled as Tara Chand v. Ram Krishan. is hereby reversed and as a consequence of it judgment and decree of the trial Court in Civil Suit No. 133-1 of 1987, dated 31.3.1990, titled as Ram Krishan v. Tara Chand is hereby restored. Defendat will pay costs of the plaintiff in all the three courts.