A. K. MITRA, J. ( 1 ) TWO suits being T. S. No. 168/70 and 150/71 have been tried analogously for the sake of convenience inasmuch as some common questions were involved in both the suits. ( 2 ) T. S. No. 168/70 was filed by Sm. Suniti Bala Debnath against defendant No. 1 Ramkishan Dube (presently deceased) and substituted by defendant Nos. 1 (a) to 1 (o) as his legal representatives. The case made out by Suniti Bala Debnath is inter alia as follows: the suit property that is premises No. 299, Gopal Lal Thakur Road, originally belonged to Late Hemanta Kr. Roy on his death. His two sons and grand-sons sold the same to one Jagatjyoti Seal in 1931. Two sons of Late Hemanta Kr. Roy are (1) Sailen Kr. Roy and (2) Arun Kr. Roy. Said Jagatjyoti sold the property in 1935 to Smt. Manada Sundari Dasi. Said Manada Sundari sold the property to one Madan Chandra Chanda, her grand-son in 1945. Madan Chanda sold the property to Suniti Bala on 28. 5. 1969. Allegedly, Ramkishan was a tenant under Madan Chandra Chanda. After the purchase Madan asked Ramkishan to attorn the tenancy and pay rent to Madan. Ramkishan refused to pay rent, even despite demand in writing he had also sublet the property to defendant Nos. 2 to 5 allegedly without the knowledge and consent of the landlord. Consequently, the tenancy of Ramkishan was determined by a notice to quit and on his failure to vacate the premises as required by the notice Suniti Bala filed T. S. No. 168/70. In W. S. filed by her in T. S. No. 150/71 Suniti Bala has denied all the material allegations of the plaint. She had denied the story of Ramkishan's acquisition of title by inheritance from his father who had allegedly taken settlement of the entire scheduled property of which the suit property as described in the schedule 'b' is apart from Hemanta and also by adverse possession. She had asserted that T. S. No. 516 and 765/54 filed by Manada I the Court of learned 1st Munsif, Sealdah were allowed to be dismissed for default as Manada had to title to the suit property at that time and she had no right also to file the suits. She has further claimed that SCC. Suit no. She had asserted that T. S. No. 516 and 765/54 filed by Manada I the Court of learned 1st Munsif, Sealdah were allowed to be dismissed for default as Manada had to title to the suit property at that time and she had no right also to file the suits. She has further claimed that SCC. Suit no. 172 172/59 was filed by Madan against Ramkishan in the same Court for recovery of arrears of rent. The plaint was ordered to be returned for presentation before the proper Court as complicated question of title was involved which could not be settled by Small Causes Court. She has challenged the transfer made in favour of Panchanan by Ramkishan as fraudulent and collusive. ( 3 ) THE case made out by Panchanan Shaw is the plaintiff in T. S. No. 150 is that the suit property described in Schedule (b) thereto is a part which originally belonged to Late Hemanta Kr. Roy. One Kanai Lal Roy was a tenant under Hemanta in respect thereof. The property came back into the khas possession of Hemanta who thereafter settled the property with Shaw Pujan Dube, father of Ramkishan at the annual rental plus the obligation to pay municipal taxes. Shew Pujan constructed structures thereon at his own costs and possessed the same by staying over there with his family and letting out some portions to tenants. After his death Ramkishan became the alleged owner of the property as his only son. Ramkishan used to possess the property like his father. Said Ramkishan used to pay municipal taxes and rates in respect of the property. Subsequently, he sold the suit property to Panchanan by executing a deed dated 21. 7. 1989. Panchanan and his vendor also acquired title to the suit property by adverse possession. Said Panchanan made an attempt to be added as party in T. S. No. 168 filed by Suniti Bala but having failed he was compelled to file the suit. According to Panchanan, the transfer in favour of Manada, Madan and Suniti Bala are fraudulent and collusive transfer. It is also the case of Panchanan that Ramkishan was never a tenant under any of them. ( 4 ) NOW, obviously the defence of Ramkishan in T. S. No. 168/70 is on the same line and in addition Ramkishan has challenged the validity and service of the notice to quit. It is also the case of Panchanan that Ramkishan was never a tenant under any of them. ( 4 ) NOW, obviously the defence of Ramkishan in T. S. No. 168/70 is on the same line and in addition Ramkishan has challenged the validity and service of the notice to quit. ( 5 ) IN the two suits the following issues were framed by the learned trial Judge on the above pleadings made by the respective parties: t. S. No. 168 of 1970:1. IS the suit maintainable? 2. Is the defendant a defaulter? 3. Has the defendant sublet the suit premises? 4. Is the notice to quit legal, valid and sufficient? Was it duly served? 5. Is the plaintiff entitled to a decree for ejectment? 6. To what relief, if any, is the plaintiff entitled? additional Issues: 7. Has there been any relationship of landlord and tenant between the plaintiff and defendant? t. S. 150 of 1971: 8. 1. Has the plaintiff any cause of action? 9. 2. Is the suit maintainable? 10. 3. Is the suit barred by limitation? 11. 4. Has the plaintiff any right, title and interest in the suit property? 12. 5. Is the plaintiff entitled to get a decree for declaration of title and permanent injunction? 13. 6. What reliefs, if any, is the plaintiff entitled to? ( 6 ) AS observed earlier both the suits were heard together and after hearing the learned advocate for the respective parties and on contest the learned trial Judge dismissed T. S. No. 150/71 filed by Panchanan and decreed T. S. No. 168/70 on contest with cost filed by Suniti Bala Debnath. The learned trial Judge granted decree for ejectment against the defendants of T. S. No. 168/70 and they were directed to deliver up possession in favour of Suniti Bala within thirty days from the date of the decree. Suniti Bala was allowed Rs. 10/- as mesne profits tentatively. Suniti Bala was also allowed final decree for mesne profits from 1st March till the date of recovery of possession of the suit property at the rate of Rs. 8/- per month upon payment of proper Court fee on the actual amount of mesne profit to be ascertained in a separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure. 8/- per month upon payment of proper Court fee on the actual amount of mesne profit to be ascertained in a separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure. ( 7 ) CHALLENGING the judgment and decree passed in T. S. No. 168/70, the heirs of Ramkishan preferred appeal being T. A. No. 1134/78 and challenging the judgment and decree passed in T. S. No. 150/71 Panchanan Shaw preferred appeal being Appeal No. 1145/78 against his dismissal of Suit No. 150/70. The plaintiff of T. S. No. 168/70 that is Suniti Bala also preferred a cross-objection in both the appeals against the finding of the learned Munsif in her suit contending inter alia that the learned Munsif has erred in holding that Ramkishan was not a house tenant under Suniti Bala. ( 8 ) THE learned Appellate Court below allowed both the appeals Nos. 1134/78 and 1145/78 on contest with cost against the respondents therein and rejected the cross-objection filed by Suniti Bala, the defendant No. 1 in both the appeals. The learned Appellate Court below set aside judgment and decree passed by the learned Munsif in T. S. No. 168/70 and T. S. No. 150/71. The learned Appellate Court below dismissed the suit No. 168/70 on contest with costs against the contesting defendants and dismissed ex parte with cost as against the rest. The learned first Appellate Court decreed T. S. No. 150/71 on contest with cost against the contesting defendants and ex parte with costs against the rest. The title of the plaintiff of T. S. No. 150/71 was declared by the learned Appellate Court below and the first Appellate Court also restrained the defendant No. 1 permanently from interfering with the plaintiff's possession of the suit holding. ( 9 ) THE plaintiff in T. S. No. 168/70 and defendant No. 1 in T. S. No. 150/71 Suniti Bala preferred two second appeals being S. A. No. 557 and 558/81 that is the instant appeals which are being heard. The two second appeals came up for hearing before the Hon'ble Division Bench of this High Court on 21. 9. 1981 under Order 41 Rule 11 of the Code of Civil Procedure and the Hon'ble Division Bench of this Court observing that the appeal should be heard altogether on all the grounds stated in the Memorandum of Appeal. The two second appeals came up for hearing before the Hon'ble Division Bench of this High Court on 21. 9. 1981 under Order 41 Rule 11 of the Code of Civil Procedure and the Hon'ble Division Bench of this Court observing that the appeal should be heard altogether on all the grounds stated in the Memorandum of Appeal. ( 10 ) SUMMARY of contention of the learned counsel for the appellant:-1. The Appellate Court below should have stayed second suit that is the T. S. No. 150/71 filed by Panchanan in view of the provisions of section 10 of the Code of Civil Procedure. 2. The Appellate Court below should have declared Ramkishan as premises tenant and the cross-objection filed by the appellant herein in the lower Appellate Court should have been allowed. 3. The Appellate Court below wrongly found that Ramkishan became the owner of the suit property by virtue of adverse possession inasmuch as no claim was set up or no suit was filed by Ramkishan claiming adverse possession. 4. The judgment and decree passed by the Appellate Court below is perverse. Summary of contention of the learned counsel for the respondents: 1. From the evidence on record Suniti Bala could not prove that the Ramkishan was a premises tenant under her. 2. The new ground that is the ground for stay under section 10 of the Code of Civil Procedure regarding the suit of Panchanan being T. S. No. 150/71 cannot be taken at this stage in the second appeal and that apart the conditions for granting stay under section 10 have not also been fulfilled. 3. The question of ownership of Ramkishan by way of adverse possession is a question of fact which cannot be decided in this second appeal inasmuch as the Appellate Court below on consideration of the evidence on record came to that specific finding. 4. The first Appellate Court on consideration of the entire evidence on record came to the decision and the Court in second appeal cannot reappreciate evidence and since the judgment and decree passed by the Appellate Court below is based on evidence on record which cannot be termed as perverse. 4. The first Appellate Court on consideration of the entire evidence on record came to the decision and the Court in second appeal cannot reappreciate evidence and since the judgment and decree passed by the Appellate Court below is based on evidence on record which cannot be termed as perverse. ( 11 ) ON consideration of the materials on record and on consideration of the judgment and decree passed by both the Courts below and also on consideration of the materials on record therein the following substantial questions of law are formulated for the purpose of final hearing of the appeal:1. WHETHER the provisions of section 10 of the Code of Civil Procedure is attracted in the instant case and if attracted whether this can be raised at this stage of second appeal. 2. Whether the question of title or ownership by way of adverse possession can be raised in respect of a person who was allegedly a tenant either in respect of the land or in respect of the premises. 3. Whether the judgment of the first Appellate Court is perverse in the instant case or not. ( 12 ) THE learned counsel for the appellant submits that the first Appellate Court should have stayed the suit filed by Panchanan being T. S. No. 150/71 in view of the fact that the T. S. No. 168/70 was a prior suit. The learned counsel for the appellant in this context relied on a decision reported in AIR 1994 Allahabad, page 81 (Bijendra Kr. and Ors. v. Basanta Kumar ). In this judgment the learned single Judge of the Allahabad High Court observed that when there is a previously instituted suit between the same parties and where the matter in sue is directly and substantially the same in both the suits and where a suit is pending between the same parties or between parties under whom they or any of them claim litigating under the same title the Court is prohibited from proceeding with the subsequent suit in view of the provisions of section 10 of the Code of Civil Procedure. The learned counsel submits that here the suit property is same. The learned counsel submits that here the suit property is same. The plaintiff in earlier suit that is Suniti Bala is praying for permanent injunction restraining Ramkishan and eviction of Ramkishan and in the second suit also the persons claim litigating under the same title and as such the second suit being T. S. No. 150/71 should have been stayed by the Appellate Court below. ( 13 ) THE learned counsel for the appellant then relies on a decision in AIR 1982 SC page 83 (P. V. Shetty v. B. S. Giridhar ). In this judgment the Hon'ble Apex Court decided that a subsequent eviction suit by landlord alleging that protection of Act is not available to tenant during the pendency of an application for fixation of fair rent. The Karnataka High Court wrongly rejected the application by tenant for stay of suit pending disposal of his application. ( 14 ) THE learned counsel for the appellant then relied on a decision of this Court reported in AIR 1966 Cal page 382 (Jugometal Trg. Republike v. Rumta and Sons.) and submitted that in this decision the Hon'ble Division Bench of this High Court adopted the same principle regarding applicability of the provisions of section 10 and stay of subsequent suit. The learned Appellate Court below submitted that the trial Court after considering the evidence regarding possession and title came to a particular finding and the Appellate Court below when reversing the decision of the trial Court should have been cautious and should have made a proper appreciation of the evidence on record. The learned counsel for the appellant in this regard relied on a decision of one learned single Judge of this High Court reported in 1982 Cal page 251 (State v. Subimal Kumar ). In this decision the learned single Judge of this High Court observed ?the learned first Appellate Court practically accepted the plaintiff's version simply because the defendant No. 2 did not controvert his allegations. But that Court failed to consider the broad fact the defendant No. 2 is known but the plaintiff's father. So the Court ought to have been cautious before allowing the appeal by reversing all the findings of fact. ? ( 15 ) THE learned counsel for the appellant Mr. Bagchi submitted that the learned Appellate Court below wrongly held or found Ramkishan as tenant/owner. So the Court ought to have been cautious before allowing the appeal by reversing all the findings of fact. ? ( 15 ) THE learned counsel for the appellant Mr. Bagchi submitted that the learned Appellate Court below wrongly held or found Ramkishan as tenant/owner. Firstly, the Appellate Court below found that he was tenant in respect of the land and ultimately found that he was the owner by way of adverse possession in respect of the land and the construction over the land. In this way the learned Appellate Court below found Ramkishan as tenant/owner. The learned counsel for the appellant submitted on the second count first that is the learned counsel for the appellant submitted that in such manner as the Appeal Court did nobody can be found to be the owner by way of adverse possession. The learned counsel submitted that the learned Appellate Court below could not appreciate properly the doctrine of ownership by way of adverse possession. In this context the learned counsel relied on the decision reported in AIR 1990 SC page 553 (Achal Reddy v. Ramkishan Reddiar ). The learned counsel relied on the observation made in paragraph 8 of this judgment which is quoted hereinbelow: there is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first Appellate Court as well as the second Appellate Court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent finding that the plaintiff had title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party, that Ex. A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10. 7. 1946 and 17. 7. 1947 is adverse or only permissive. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10. 7. 1946 and 17. 7. 1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that this possession, while the contract remained executory in stage, was in this own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. ? ( 16 ) THE learned counsel then relied on another decision in this connection reported in AIR 1995 SC page 895 (Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil ). The learned counsel relied on the observation made paragraphs 12, 13 and 14 of this decision which are quoted hereinbelow:12. ? ( 16 ) THE learned counsel then relied on another decision in this connection reported in AIR 1995 SC page 895 (Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil ). The learned counsel relied on the observation made paragraphs 12, 13 and 14 of this decision which are quoted hereinbelow:12. ARTICLE 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i. e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i. e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i. e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 13. WHERE possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. 14. IN the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenary property. 14. IN the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenary property. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other members he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and regrant was made by the Collector under sub-section (1) of section 5. The defendant, therefore, must plead and prove that after the regrant, he asserted his own exclusive right, title and interest to the plaint schedule property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile title during the entire statutory period of 12 years without any let and hindrance and the plaintiff stood thereby. ? ( 17 ) THE learned counsel submitted that under Article 65, burden is on the defendants to prove affirmatively. The learned counsel also submitted that the reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another title. The learned counsel submitted that here as it appears from the admitted facts that Ramkishan claimed that his father Shew Pujan took the settlement of the suit lands from Hemanta Kr. Roy at a rental of Rs. The learned counsel submitted that here as it appears from the admitted facts that Ramkishan claimed that his father Shew Pujan took the settlement of the suit lands from Hemanta Kr. Roy at a rental of Rs. 3-2 annas along with obligations to pay municipal taxes and Shew Pujan constructed the structure on the suit lands at his own cost and possessed the same and after his death Ramkishan became the owner being in possession of the suit property on payment of the municipal taxes and etc. Now, Ramkishan also claimed adverse possession. According to the learned counsel for the appellant when Ramkishan is claiming title as owner by way of inheritance from Shew Pujan and prior thereto from Hemanta Kr. Roy again in the alternative he cannot claim ownership by way of adverse possession. The learned counsel thereafter submitted that the judgment and decree passed by the Appellate Court below can be said to be perverse inasmuch as not only the judgment and decree goes beyond the evidence but also it goes in contradiction to the evidence. The learned counsel for the appellant submitted that the Appellate Court below when brushing aside the evidence scanned by the trial Court it must be very careful and cautious. In this context the learned counsel for the appellant relied on the decision reported in AIR 1983 SC page 114 (Madhusudan Das v. Narayani Bai ). The learned counsel strongly relied on the observations made in paragraph 8 of this judgment which is quoted hereinbelow:8. The question whether the appellant was in fact adopted by Jagannathdas and Premwati has been determined essentially on the basis of oral testimony, and reference has been made to a few documents only in supplementation of the oral evidence. At this stage, it would be right to refer to the general principle that, in an appeal against a trial Court decree, when the Appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W. C. Macdonald v. Fred Latimer, AIR 1929 PC 15, 18 where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial Court's findings as to the truth of the oral evidence, the Appellate Court can interfere only on very clear proof of mistake by the trial Court. In Walt v. Thomas, 1947 AC 484, 486 it was observed: ?. . . . . . . . . it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of Appeal) of having the witness before him and observing the manner in which their evidence is given. ? This was adverted to with approval by the Privy Council in Sara Veeraswami v. Talluri Narayya (deceased), AIR 1949 PC 32 and found favour with this Court in Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh, 1950 SCR 781 , 783 : ( AIR 1951 SC 120 at page 121 ). It seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial Court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact. Our attention has been drawn by the respondents to the Asiatic Steam Navigation Co. Ltd. v. Sub-Lt. Arbinda Chakravarti, (1959) Supp. 1 SCR 979 : ( AIR 1959 SC 597 ) but nothing said therein detracts, in our opinion, from the validity of the proposition enunciated here. ? ( 18 ) THE learned counsel in this regard also relied on a decision reported in AIR 1972 SC page 1716 (T. D. Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments ). The learned counsel submitted that in this judgment the Hon'ble Apex Court has held ?the unanimous practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness the Appellate Court in all fairness to do and to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial Court. ? ( 19 ) THE learned counsel submitted that in the instant case the Appellate Court below according to his sweet will accepted the evidence relied on by the trial Court and rejected same of the evidence which has also been accepted by the trial Court and then again relied on some portions of the evidence which has been discarded by the trial Court. According to the learned counsel for the appellant the Appellate Court should have been more cautious and more mindful when discussing and/or considering the evidence adduced before the trial Court or evidence considered and/or rejected by the trial Court. In that way this judgment is totally perverse inasmuch as sometimes the Appellate Court below accepted some of the evidence which has been duly considered and rejected by the trial Court and the Appellate Court below did not assign proper for such acceptance. ( 20 ) MR. In that way this judgment is totally perverse inasmuch as sometimes the Appellate Court below accepted some of the evidence which has been duly considered and rejected by the trial Court and the Appellate Court below did not assign proper for such acceptance. ( 20 ) MR. Roy Chowdhury appearing for the responsible submitted that no case was ever made out either in the trial Court or in the Appellate Court below regarding applicability of section 10 of the Code of Civil Procedure in the instant case. The learned counsel for the respondent submitted that Ramkishan Dube was the predecessor-in-interest of the defendant and on 21. 7. 1969 Ramkishan Dube transferred the property to Panchanan. Suniti Bala, the appellant herein according to the learned counsel filed the T. S. being No. 168 of 1970 under the West Bengal Premises Tenancy Act as would appear from paragraphs 1 to 4, paragraph 7 and paragraph 8 of the plaint. The learned counsel further submitted that the suit has been valued on the basis of 12 months rental as per the West Bengal Premises Tenancy Act and the plaintiff Suniti Bala valued the suit at Rs. 45 x 12. According to the learned counsel for the respondents no amendment of the plaint was made. It stood as it is and it was a suit for eviction under West Bengal Premises Tenancy Act but from the evidence it comes out that Ramkishan was not a premises tenant under Suniti Bala. Actually land was given on rental and the construction was made by Shew Pujan, the father of Ramkishan and in that event the suit of Suniti Bala must fail. The learned counsel also submits that it also appears from record that Madan, the predecessor-in-interest of Suniti Bala also filed one suit in SCC where also when valuating the suit it was calculated on the basis of land rental and as such Suniti Bala is now estopped from saying that Ramkishan was a premises tenant. The learned counsel for the respondent also submits that the question of possession is a question of fact which cannot be agitated in the second Appellate Court. The learned counsel for the respondent relied on a decision reported in 1997 (5) SCC page 438 (Kshitish Ch. Purkait v. Santosh Kr. Purkait and Ors. ). The learned counsel for the respondent also submits that the question of possession is a question of fact which cannot be agitated in the second Appellate Court. The learned counsel for the respondent relied on a decision reported in 1997 (5) SCC page 438 (Kshitish Ch. Purkait v. Santosh Kr. Purkait and Ors. ). Relying on this judgment the learned counsel for the respondent submitted that in this judgment the Hon'ble Apex Court clearly observed that no new legal plea can be raised if no specific plea taken nor any precise issue framed in that behalf. The learned counsel submitted that in this judgment the Hon'ble Apex Court decided that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section 5 of section 100 of Code of Civil Procedure. Under the proviso, the Court should be 'satisfied' that the case involves a 'substantial question of law' and not a mere 'question of law'. The reason for permitting the substantial question of law to be raised, should be 'recorded' by the Court. ( 21 ) IN the above context the learned counsel submitted that in the instant case the question of possession is a question of fact. The plea of attraction of section 10 of the Code of Civil Procedure cannot be raised at this stage in second appeal and the Appellate Court on consideration of the evidence on record decided the issues and as such the judgment cannot be termed as perverse. The learned counsel for the respondents then relied on an earlier judgement of the Hon'ble Apex Court reported in AIR 1973 SC page 76 (The Managing Director Hindusthan Aeronautics Ltd. v. Ajit Tarway ). The learned counsel relied on the observation made in paragraph 5 of the said Apex Court judgment and submitted that when the lower Appellate Court within its jurisdiction decided something on consideration of the evidence the High Court should not interfere into. ?5. In our opinion the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. ?5. In our opinion the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the first Appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under section 115 of the Code of Civil Procedure; See the decisions of this Court in Pandurang Dhoi v. Maruti Hari Jadhav, (1966)1 SCC 102 = ( AIR 1966 SC 153 ), and D. L. F. Housing and Construction Co. (P) Ltd. , New Delhi v. Sarup Singh, (1970)2 SCR 368 = ( AIR 1971 SC 2324 ). ? ( 22 ) THE learned counsel for the respondents also relied on a paragraph of a decision reported in 64 CWN page 103 (Premchand Manickchand v. Fort Gloster Jute Manufacturing Co. Ltd.) which is quoted herein below: ?a ground of law, particularly one which goes to the validity of the entire proceeding, can be taken for the first time at any stage. But when a party has raised such a ground in the trial Court and then, deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage. ? ( 23 ) THE learned counsel therefore submitted that the instant second appeal should be dismissed inasmuch as the three substantial questions of law framed by this Court go against the appellant. The learned counsel for the appellant in reply submitted that the Hon'ble Apex Court never concludingly observed that rule of non-interference in concurrent findings of fact is an absolute rule of universal application. The learned counsel in this regard relied on two decisions reported in 2001 (7) SCC page 189 (Hafazat Hussain v. Abdul Majeed and Ors.) and 2001 (7) SCC page 494 (Leela Soni and Ors. v. Rajesh Goyal and Ors. ). The learned counsel in this regard relied on two decisions reported in 2001 (7) SCC page 189 (Hafazat Hussain v. Abdul Majeed and Ors.) and 2001 (7) SCC page 494 (Leela Soni and Ors. v. Rajesh Goyal and Ors. ). In these two decisions according to the learned counsel for the appellant that in case of mechanical refusal by second Appellate Court to interfere in the matter may be relegated to such Court to deal objectively with the claims of parties keeping with view the parameters of consideration for interference under section 100. ( 24 ) THE learned counsel for the appellant therefore in reply submitted that the Hon'ble Three Judges' Bench of the Apex Court in Santosh Kr. Purkait's case though decided that the second Appellate Court will not interfere in the judgment and decree passed by the Court's appeal deciding question of facts in concurrent findings, still then subsequently these two decisions of the Hon'ble Apex Court held that if the High Court found that judgments of both the Courts were vitiated due to perversity of reasoning and due to surmises and misreading of materials on record, having (I) ignored evidence on record, (ii) misdirected themselves in the matter of legal principles and wrongly cast burden on plaintiff/respondents as to prove then the High Court can interfere in the second appellate stage. The learned counsel submitted that the judgment and decree passed by the Appellate Court below should be set aside and the instant second appeal should be allowed. ( 25 ) HEARD the learned counsel for the parties. Considered their submissions on the above three substantial questions of law and also considered the judgment and decree passed by the Courts below along with documents on record. ( 26 ) IN so far as the first point is concerned the appellant cannot raise the plea of stay of proceeding in subsequent Title Suit under the provisions of section 10 read with section 151 of the Code of Civil Procedure at this second appellate stage when this point was not taken in both the Courts below. ( 26 ) IN so far as the first point is concerned the appellant cannot raise the plea of stay of proceeding in subsequent Title Suit under the provisions of section 10 read with section 151 of the Code of Civil Procedure at this second appellate stage when this point was not taken in both the Courts below. That apart if the second suit filed by Panchanan being T. S. No. 150/71 would have been stayed then there was a chance of multiplicity of proceeding inasmuch as Panchanan or Ramkishan could not have got their chance to get their claims settled and the object of the introduction of section 10 in the Code was not like this, if therefore the second suit was stayed then in that event there was a chance of miscarriage of justice. When scheme of section 10 or the object of section 10 of the Code of Civil Procedure is to avoid multiplicity of proceeding and conflict of decisions, in the instant case if stay would have been granted that would have encouraged or would have invited separate suit or separate proceeding. In that view of the matter the first question is decided against the appellant. ( 27 ) IN so far as the question of adverse possession is concerned though it is a fact that the claim of adverse possession is purely a question of fact but the finding in this case regarding adverse possession is not concurrent and also differed principly as observed earlier in the decision of the Hon'ble Apex Court in the case of Hafazat Hussain (supra ). It has been observed that if the Courts below misdirected themselves in the matter of legal principles then the High Court in second appellate stage can interfere in the judgment and decree passed by the Appellate Court below. Firstly, the question of adverse possession was not decided by the Courts below in their concurrent finding and on the contrary the findings are contradictory. Firstly, the question of adverse possession was not decided by the Courts below in their concurrent finding and on the contrary the findings are contradictory. The first Appellate Court observed principly that since the predecessors-in-interest of Suniti Bala that is Madan Chowdhury filed a suit in SCC against Ramkishan and ultimately the suit was dismissed by the learned SCC on the ground that the matter involves complicated question of title and the SCC granted liberty to the plaintiff therein to file suit in appropriate forum and Ramkishan remained in possession even after that suit, therefore, the learned Appellate Court below found Ramkishan in adverse possession. But the learned Appellate Court below failed to consider that there must be hostile title to claim adverse possession and as referred to in the earlier decisions reported in AIR 1990 SC page 553 (supra) and AIR 1995 SC page 895 (supra) to establish the claim for adverse possession one must have to prove the hostility of title and he will have to set up claim for adverse possession. Since Ramkishan was claiming to be a tenant in respect of the land, he cannot in the same breath claim ownership by way of adverse possession only because a suit in SCC claiming due rental was filed against him and that ended in dismissal not on merit but for the reason that complicated questions of title is involved in the case, that does not ipso facto give right to Ramkishan to claim adverse possession and the learned Appellate Court below erred in law and misdirected itself in the matter of legal principle and found Ramkishan as owner by way of adverse possession. This finding, in my opinion, is per se illegal. This question, therefore, goes in favour of the appellant. ( 28 ) IN so far the question of perversity is concerned it appears from the judgment of the Appellate Court below that the lower Appellate Court in so many places tried to fill up the gap by giving findings on surmise and conjectures and going beyond the evidence on record. In one place the learned Appellate Court below found/observed, ?i have already pointed out that since 1954 this Ramkishan had been challenging plaintiff's predecessors-in-interest and title, and in the light of the evidence disclosed in this suit, it appears to me also very unsafe to place any reliance upon the notice. In one place the learned Appellate Court below found/observed, ?i have already pointed out that since 1954 this Ramkishan had been challenging plaintiff's predecessors-in-interest and title, and in the light of the evidence disclosed in this suit, it appears to me also very unsafe to place any reliance upon the notice. In the absence of any written document it is extremely difficult to believe that Ramkishan authorises this lawyer to issue any notice. ? It is not known wherefrom the learned Appellate Court below got this evidence and on what reasoning the lower Appellate Court disbelieved the authorisation of Ramkishan to his lawyer to issue notice. This is purely on surmise and conjectures. In one place the Appellate Court below found Ramkishan as tenant owner. It is also not clear as to how a person claiming tenancy can claim ownership. This reading of the Appellate Court below is also contrary to evidence on record. In so many other places also it is found that the lower Appellate Court went on making observations beyond the records and in such a situation the judgment and decree passed by the Appellate Court below can safely be said to be perverse. In that view the third substantial question of law also goes in favour of the appellant. ( 29 ) ON the discussion made above, I, therefore, find/hold that the judgment and decree passed by the Appellate Court below is liable to be set aside and the judgment and decree passed by the learned trial Judge is to be affirmed and I, therefore, do affirm the judgment and decree passed by the learned trial Judge and set aside the judgment and decree passed by the Appellate Court below. Consequently, the second appeal is allowed. Ramkishan and/or his heirs, if any, occupying the suit premises are given three months time to vacate the suit premises failing which the appellant will be at liberty to put the decree in execution for the purpose of eviction. Let a decree be drawn up accordingly. Parties are to bear their own costs respectively. The L. C. R. be sent down to the Courts below forthwith. Appeal allowed