Judgment :- Babu Sheriff alias Saibullah Shefiff, the first defendant in the suit, having lost before both the Courts below, has filed this second appeal. 2. The respondents 1 to 11/plaintiffs filed the suit for declaration, possession and mandatory injunction against the defendants. 3. The case of the plaintiffs is as follows:- (a) The plaintiffs are the legal heirs of one Bahar Sheriff. Their grandfather Satthaar Sahib has got three sons--Bahar Sheriff, Hussain Sheriff and Kasim Sheriff. After the death of Satthaar Sahib, his sons divided the properties. Bahar Sheriff was allotted 39 cents in S.No.139/9. The other sons were allotted 11 cents each in S.No.139/8. (b) In the year 1929, Bahar Sheriff mortgaged the allotted properties, namely 39 cents in favour of one Saribabi Ammal. In the year 1940, out of 39 cents allotted to him, Bahar Sheriff sold 25 cents to one Satthaar Sheriff, the son of Kasim Sheriff (his brother) and retained the balance 14 cents for himself. Thereafter, a joint patta was issued in respect of the above properties in S.No.139/9 both in the name of Bahar Sheriff and Satthaar Shefiff. After the death of Bahar Sheriff, the plaintiffs who are his legal heirs, have been in possession and enjoyment of the suit properties. (c) While so, one Mukthar Ahamed, the grandson of the original owner--Satthaar Sheriff, who purchased 25 cents from Bahar Sheriff, filed O.S. No.958 of 1982 (re-numbered as O.S. No.158 of 1987) against the plaintiffs in the present suit, claiming that he has got a share in S.No.139/9. (d) Taking advantage of institution of O.S. No.958 of 1982 (O.S. No.158 of 1987) by the said Mukthar Ahamed, the first defendant and the said Mukthar Ahamed trespassed into the property of 14 cents and forcefully got possession and put up buildings. The plaintiffs issued notice, asking to handover the possession and not to construct the buildings. A police complaint was also given by the plaintiffs against the defendants, but there was no action. (e) In the meantime, the first defendant inducted tenants (the other defendants) in the building. The suit filed by Mukthar Ahamed in O.S. No.158 of 1987 however was dismissed on 6-4-1987, as the same was not pursued by the plaintiff therein. Hence, the plaintiffs were constrained to file the present suit for declaration of title, possession and mandatory injunction against the defendants. 4. The suit filed by Mukthar Ahamed in O.S. No.158 of 1987 however was dismissed on 6-4-1987, as the same was not pursued by the plaintiff therein. Hence, the plaintiffs were constrained to file the present suit for declaration of title, possession and mandatory injunction against the defendants. 4. The case of the defendants is as follows:- (a) S.No.139/9 consists of 39 cents and S.No.139/10 consists of 22 cents. Satthaar Sahib had five sons. In the partition that took place in 1938 between the sons of Satthaar Sahib, 25 cents were allotted in S.No.139/9 to Bahar Sheriff and the balance 14 cents in S.No.139/9 was allotted to the other two sons, namely Kasim Sheriff and Hussain Sheriff, with 7 cents each. Remaining two sons, namely Yahoob Sheriff and Khaju Sheriff were allotted 11 cents each in S.No.139/10. (b) Kasim Sheriff had two sons, namely Satthaar Sheriff and Jabbar Sheriff. 7 cents allotted to Kasim Sheriff was divided by his sons-Satthaar Sheriff and Jabbar Sheirff, into two halves with 3.5 cents each. In the year 1940, Satthaar Sheriff, one of the sons of Kasim Sheriff, purchased 25 cents in S.No.139/9 from Bahar Sheriff. Jabbar Sheriff, another son of Kasim Sheriff, purchased 7 cents from the daughter of Hussain Sheriff. The first defendant's father, namely Jabbar Sheriff had put up construction in 7 cents and inducted tenants. In the meantime, Satthaar Sheriff settled his properties in favour of his grandson Mukthar Ahamed, through his daughter. Therefore, the plaintiffs cannot claim the properties measuring 14 cents being enjoyed by the defendants. 5. Necessary issues were framed by the trial Court. On the side of plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-13 were filed. On the side of defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-27 were filed. 6. The trial Court, after framing necessary issues, decreed the suit as prayed for in respect of 14 cents in S.No.139/9. Aggrieved by the judgment and decree of the trial Court, the first defendant filed an appeal before the lower appellate Court and during the pendency of the appeal, he filed I.A. No.128 of 1994 to receive some documents as additional evidence. Aggrieved by the judgment and decree of the trial Court, the first defendant filed an appeal before the lower appellate Court and during the pendency of the appeal, he filed I.A. No.128 of 1994 to receive some documents as additional evidence. The lower appellate Court, after considering the materials available on record and various contentions raised by counsel for the parties, dismissed the said application for receipt of additional documents as additional evidence as well as the appeal and confirmed the judgment and decree of the trial Court. Assailing the concurrent judgments, the first defendant has filed the second appeal before this Court. 7. This Court was not inclined to admit the second appeal and merely, notice of motion was ordered on 23-8-1995. The appellant has chosen to file C.M.P. No.12706 of 2000 along with an affidavit sworn to by the party on 30-6-2000 under Order 41 Rule 27 C.P.C. to permit the appellant to produce the document attached thereto and receive the same as additional evidence. 8. Objecting to the said C.M.P. No.12706 of 2000, a counter has been filed by the respondents, duly sworn to by them on 18-12-2002. 9. When C.M.P. No.12706 of 2000 came up for disposal, learned counsel for the parties requested this Court to hear both the second appeal and the said C.M.P. and decide the matter. As agreed by learned counsel for the parties, both the matters were taken up for disposal together. 10. Learned Senior counsel for the petitioner in C.M.P. No.12706 of 2000 made the following submissions:- The document which has been recently obtained by the appellant/first defendant (the petitioner in C.M.P.), a registered partition deed dated 14-4-1898, would show that Satthaar Sahib has got five sons and the family properties were divided among them and the said partition deed would indicate that each would be entitled to 12 cents. This will prove that the plaintiffs would not be entitled to the relief sought for, since the sale of 25 cents to Satthaar Sheriff in the year 1940 itself is not valid, as the extent of 25 cents is excess of what is entitled to and therefore, the appellant/first defendant must be allowed to file the said document as an additional evidence in the second appeal. 11. 11. In reply to the said submissions, learned Senior counsel for the respondents in C.M.P. No.12706 of 2000 would make the following submissions:- The document should not be entertained at this belated stage. If the case of the appellant as contemplated in the said partition deed is accepted, then the same would amount to introducing a new case, which is contrary to the written statement, in which the appellant had stated that his uncle had purchased 25 cents from Bahar Sheriff. It is not the case of the plaintiffs that there were no five brothers and the claim of the plaintiffs is that only 3 brothers were entitled to the suit properties and as such, C.M.P. No.12706 of 2000 is liable to be dismissed. 12. As indicated above, the second appeal has not been admitted and therefore, no substantial question was formulated. Learned Senior counsel for the appellant raised the following substantial questions of law that has been formulated in the memorandum of grounds of second appeal:- "(a) Have not both the Courts below, erred in holding that the plaintiffs discharged their burden in a suit for ejectment in proving their title to the suit properties? (b) Is not the patta relied on by the plaintiffs, not a document of title, that too, exclusive title, especially when held as managerial affairs of the eldest member of the family? (c) Is the finding of the appellate Court in regard to the boundaries recited in the sale deed dated 12-7-1958 in favour of the appellant's father, is inadmissible, being a document of inter-parties, especially when it is the appellant's document of title and it is more than 30 years old? (d) Is not the relief of mandatory injunction barred, when the buildings are put up in the year 1970 or so? and (e) Is the first appellate Court correct in rejecting the prayer for reception of additional documents in terms of Order 41 Rule 27 C.P.C.?" 13. In elaborating the above substantial questions of law, learned Senior Counsel for the appellant would make the following submissions:- (a) The plaintiff has not established by acceptable evidence that Bahar Sheriff was solely entitled to the whole of S.No.139/9. In elaborating the above substantial questions of law, learned Senior Counsel for the appellant would make the following submissions:- (a) The plaintiff has not established by acceptable evidence that Bahar Sheriff was solely entitled to the whole of S.No.139/9. (b) The document dated 14-4-1898 which is sought to be filed in this Court as additional evidence, has not been placed before the trial Court by the plaintiffs to prove the original title to the suit properties. The said document would establish that there were five sons to Satthaar Sahib. (c) The document filed on behalf of the defendants, would show that the suit properties were in possession of the appellant/first defendant for a long number of years. (d) The oral partition pleaded by P.W.1 among the three brothers, has not been proved by documentary evidence. (e) On the strength of patta which stand in the name of Bahar Sheriff (the first defendant), the plaintiffs cannot seek to prove the title. (f) The patta and mortgage deed would not be of any use to the plaintiffs, as those documents came into existence while Bahar Sheriff was maintaining entire family as the eldest son. (g) In Ex.A-3 sale deed, the eastern boundary was shown as the properties of Satthaar Sheriff and Hussain Sheriff. So, misreading of the vital factor, namely "eastern boundary" by both the Courts below, would amount to a substantial question of law to be decided in the second appeal. 14. In reply to the above submissions, learned Senior counsel for the respondents would justify the findings of both the Courts below by contending that the reasonings for those findings in favour of the plaintiffs, are perfectly valid and proper, and as such, the factual findings rendered by the Courts below may not be interfered with by this Court invoking Section 100 C.P.C. 15. Learned Senior counsel for both parties, in order to substantiate their respective pleas, would cite number of authorities. 16. Learned Senior counsel for both parties, in order to substantiate their respective pleas, would cite number of authorities. 16. Learned Senior counsel for the appellant would cite the following decisions for the proposition that the jurisdiction of the High Court under Section 100 C.P.C. can be exercised liberally in the interest of justice and it would not be proper for the High Court to ignore improper appreciation of evidence or to turn a blind eye to the misreading of evidence by the Sub-Courts and if a finding of fact has been rendered by the lower Courts without any evidence, then such a finding can be interfered with:- (i) AIR 1954 SC 524 (M.M.B. CATHOLIS VS. M.P. ATANASIUS); (ii) AIR 1955 SC 271 (DHIRAJLAL VS. I.T. COMMR., BOMBAY); (iii) AIR 1963 SC 1526 (K.VENKATARAMIAH VS. A.SEETHARAMA REDDY); (iv) AIR 1965 SC 1506 (BRAHMA NAND PURI VS. NEKI PURI); (v) AIR 1973 AP 149 (C.AUDILAKSHMAMMA VS. A.RAMA RAO); (vi) 1996 (6) SCC 223 (SAWARNI VS. INDER KARU); (vii) 1996 (1) LW 608 (ARULMIGHU VISWESWARASWAMI & VEERARAGHAVA PERUMAL TEMPLES ETC., TIRUPPUR VS. R.V.E. VENKATACHALA GOUNDER & ANOTHER); (viii) 1996 (1) LW 615 (UPPALAM LAKSHMAKKA VS. UPPALAM NARASAMMA & ANOTHER); (ix) 1999 (1) LW 536 (RAJIAH NADAR VS.MANONMANI AMMAL); (x) 2000 (III) CTC 193 (HASAN ABUBUCKER VS. KOTTIKULAM ST., MOHIDEEN PALLIVASAL THERKU MOHIDEEN PALLIVASAL); (xi) 2000 (1) SCC 434 (ISHWAR DASS JAIN VS. SOHAN LAL); (xii) 2001 (4) SCC 262 (KULWANT KAUR VS. GURDIAL SINGH MANN); (xiii) 2001 (5) SCC 705 (DEENA NATH VS. POORAN LAL); (xiv) 2001 (7) SCC 189 (HAFAZAT HUSSAIN VS. ABDUL MAJEED); 17. On the other hand, learned Senior counsel for the respondents would cite 1999 (II) M.L.J. 105 (SC)---KONDIBA DAGADU KADAM VS. SAVITRIBAI SOPAN GUJAR and contend that the concurrent findings of fact, howsoever erroneous, cannot be disturbed by the High Court in exercise of power under Section 100 C.P.C. Substantial question of law has to be distinguished from substantial question of fact. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate Court. It has to be kept in mind that the right of appeal is neither natural nor inherent right attached to litigation. Being substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. It has to be kept in mind that the right of appeal is neither natural nor inherent right attached to litigation. Being substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in Section must be strictly fulfilled before the second appeal can be maintained and no Court has the power to add or enlarge those grounds. 18. I have carefully considered the respective contentions urged by learned Senior counsel on either side. I have also gone through the judgments impugned and other records. 19. On a careful scrutiny of the judgments impugned and proper analysis of the materials available on record, I am unable to accept any one of the contentions urged on behalf of the appellant either in respect of the merits of the application seeking permission to adduce additional evidence, or in respect of the merits of the appeal. 20. Reasonings for my above conclusion are as follows:- (a) According to the plaintiffs, three sons of Satthaar Sahib-(i) Bahar Sheriff, (ii) Hussain Sheriff and (iii) Kasim Sheriff divided the properties into three shares. Bahar Sheriff was allotted 39 cents in S.No.139/9. The other two sons were allotted with 11 cents each in S.No.139/8. Subsequent to partition, patta was exclusively issued in the name of Bahar Sheriff in respect of 39 cents in S.No.139/9. Thereafter, Bahar Sheriff, on 24-5-1929, mortgaged entire 39 cents in favour of one Saribabi Ammal under Ex.A-2 mortgage deed. These documents have not been seriously challenged by the defendants. Thereafter, by Ex.A-3 dated 29-6-1940, Bahar Sheriff sold 25 cents out of 39 cents allotted to him, in favour of one Satthaar Sheriff, the son of Kasim Sheriff (the brother of Bahar Sheriff) and the balance 14 cents was retained by him and the same has been enjoyed by him till his death and subsequently, by his legal heirs, the plaintiffs. Both in the trial Court as well as the appellate Court, Ex.A-3 document has not been challenged. On the other hand, it is the contention of the defendants that Bahar Sheriff was allotted with only 25 cents and the same was sold to Satthaar Sheriff by Ex.A-3 in the year 1940. Both in the trial Court as well as the appellate Court, Ex.A-3 document has not been challenged. On the other hand, it is the contention of the defendants that Bahar Sheriff was allotted with only 25 cents and the same was sold to Satthaar Sheriff by Ex.A-3 in the year 1940. But, the documents, namely Exs.A-1, A-2, A-3 and A-10 would clearly show that prior to sale of 25 cents, the exclusive title of 39 cents was with Bahar Sheriff and subsequent to sale of 25 cents, remaining area of 14 cents was retained by the said Bahar Sheriff. (b) It is the specific case of the defendants that in the partition, 25 cents alone was allotted to Bahar Sheriff and the remaining 14 cents in S.No.139/9 was allotted to Kasim Sheriff and Hussain Sheriff with 7 cents each in the partition. As held by both the Courts below, no evidence has been adduced to establish that out of 39 cents, 14 cents were allotted to Kasim Sheriff and Hussain Sheriff. It is also the case of the defendants that out of 7 cents allotted to Kasim Sheriff, the same was divided into two halves and allotted to his sons-Satthaar Sheriff and Jabbar Sheriff. The first defendant is the son of the said Jabbar Sheriff. However, no evidence was adduced on the side of the defendants to prove the said division. (c) It is strange to notice that originally, one Mukthar Ahamed, the grand-son of Satthaar Sheriff, through his daughter, filed O.S. No.958 of 1982 (O.S. No.158 of 1987), claiming 19 cents including the suit properties that he would be entitled for the same and the said suit was filed against the plaintiffs in the present suit. Ultimately, the said O.S. No.158 of 1987 was dismissed in 1987, not being pursued. Now, it is contended by learned Senior counsel for the appellant/first defendant that by seeking to file partition deed dated 14-4-1898 as additional evidence in C.M.P.No. 12706 of 2000 that there were five sons to Satthaar Sahib and hence, the partition which took place in the year 1898 dated 14-4-1898 would show that even Bahar Sheriff would be entitled to only 12 cents and not 25 cents. This is not the case of the defendants either in the written statement before the trial Court or before the appellate Court. This is not the case of the defendants either in the written statement before the trial Court or before the appellate Court. Thus, it is clear that, (i) the case put forward by Mukthar Ahamed claiming suit properties in O.S. No.158 of 1987, (ii) the case put forward by the appellant/first defendant, claiming entire 39 cents and (iii) the case put forth before the Court contending that Bahar Sheriff had no title to sell the properties to the extent of 25 cents, are not consistent. (d) It is pointed out that when the plaintiff in the ejectment suit shall succeed on the strength of his own title, mere destruction of defendants' title, would not be sufficient to establish his title and as such, the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title, the suit must fail, as has been held in AIR 1954 SC 524 and AIR 1965 SC 1506 (supra). 21. Bearing in mind the above contention, if we look at the facts of the case, it cannot be concluded that the plaintiffs have not established their title. 22. As indicated above, the patta stands in the name of Bahar Sheriff. Earlier, he executed a mortgage deed in respect of the entire area of 39 cents, which is prior to Ex.A-3 sale deed dated 29-6-1940. It is the specific evidence of P.W.1, the fourth plaintiff that Kasim Sheriff was allotted 11 cents and Hussain Sheriff was allotted the other 11 cents in S.No.139/8, while Bahar Sheriff was allotted with 39 cents in S.No.139/9. 23. The first defendant as D.W.1 admitted that Bahar Sheriff, on 24-5-1929, mortgaged entire 39 cents in S.No.139/9 under Ex.A-2. After the sale of 25 cents in favour of Satthaar Sheriff in the year 1940, Bahar Sheriff paid the interest of Rs.10/- to the mortgagee through Ex.A-9. This was also admitted by D.W.1 in his evidence. Even Ex.A-10 patta indicates that 22 cents in S.No.139/8 stand in the name of Satthaar Sahib and 39 cents in S.No.139/9 stand in the name of Bahar Sheriff. As correctly held by the trial Court as well as the appellate Court, Bahar Sheriff cannot mortgage the suit properties under the pretext that he was the eldest member of the joint family, as the same is not provided in the Mohamedan Law. 24. As correctly held by the trial Court as well as the appellate Court, Bahar Sheriff cannot mortgage the suit properties under the pretext that he was the eldest member of the joint family, as the same is not provided in the Mohamedan Law. 24. It is the case of the plaintiffs that the defendants trespassed into the suit properties when the suit filed by Mukthar Ahamed, the grand-son of Satthaar Sahib was pending in O.S. No.958 of 1982 (O.S. No.158 of 1987). The said Mukthar Ahamed and the first defendant trespassed into the suit properties and began to construct the buildings. Immediately notices were issued by the plaintiffs to the defendants' party. Ignoring those notices, the defendants continued construction of the building and after finishing the same, they allowed tenants (the other defendants) to occupy constructed buildings. Admittedly, the suit filed by Mukthar Ahamed was not pursued and the same was allowed to be dismissed on 6-4-1987. Under those circumstances, the present suit came to be filed by the plaintiffs seeking the relief of declaration, possession and mandatory injunction. 25. Both the Courts below would elaborately deal with the factual aspect and conclude that the title of the plaintiffs has been proved through oral and documentary evidence and rejected the evidence of the defendants, observing that they have not proved the case by acceptable evidence and that their plea was not consistent. This finding, in my view, cannot be said to be without any basis. As noted above, even before this Court, a new document is sought to be introduced by the first defendant on the ground that Bahar Sheriff had no title to sell even 25 cents in favour of Satthaar Sheriff in the year 1940, which is quite contrary to the stand taken by him in the written statement. 26. Furthermore, it has to be stated that all the documents produced by the defendants, as correctly pointed out by both the Courts below, would not relate to the suit properties. In the light of the fact situation, the oral and documentary evidence adduced on the side of the plaintiffs, assumes significance and as such, the plea put forward by the plaintiffs can be held to have been established. 27. In the light of the fact situation, the oral and documentary evidence adduced on the side of the plaintiffs, assumes significance and as such, the plea put forward by the plaintiffs can be held to have been established. 27. On going through the entire oral and documentary evidence and the judgments impugned, I am of the view that the defendants, by taking advantage of pendency of the suit filed by Mukthar Ahamed, trespassed into the suit properties and constructed buildings. After finishing construction, they leased out the properties to the other defendants (the tenants) and after achieving the purpose, the said suit was not pursued and the same was allowed to be dismissed. Therefore, the factual findings rendered by the trial Court as well as the appellate Court in favour of the plaintiffs, in my view, are perfectly justified and the same do not warrant any interference by this Court, especially when no substantial question of law would arise for consideration in this second appeal. 28. For the foregoing reasonings, the second appeal is dismissed with costs. Consequently, C.M.P. Nos.11530 of 1995, for stay and 12706 of 2000, seeking permission to receive the document as an additional evidence, are also dismissed.