ARUN KUMAR MITRA, J. ( 1 ) THIS second appeal has been preferred by the defendant challenging the judgment and decree dated 4th august, 1988 passed by the learned 4th addl. District judge, alipore in t. a. no. 72/1986 reversing the judgment and decree dated 13th may, 1986 passed by the id. Munsif, 1st court at basirhat in t. s. no. 173 of 1984. ( 2 ) THE case as has been made out by the plaintiff and/or as it transpire from the plaint is inter alia as follows :- prior to the death of the husband of the plaintiff no. 1 in 1975 the defendant was kept in the house of the plaintiffs about 4 to 5 years and he used to work with the plaintiff ever since and because of his works and behaviour the plaintiff no. 1 and her husband had got great love and affection for him. Plaintiff nos. 2 to 4 are the sons of plaintiff no. 1 and they used to reside elsewhere at the place of their employment. The said sons of the plaintiff no. 1 asked her to go and reside with them but as per husband's wish she did not leave her father-in-law's house at nandanpur. The plaintiff nos. 2 to 4 used to send money every month to plaintiff no. 1. The plaintiff nos. 2 to 4 being the eldest and youngest son they used to visit the plaintiff no. 1 regularly. The defendant requested the plaintiff no. 1 to give him some land for constructing his house and plaintiff no. 1 agreed to give him some land for constructing his house and plaintiff no. 1 agreed to give him about 2 to 21/2 cottahs of land for this purpose. Plaintiff no. 1 has been suffering from various ailments for quite sometime and also consume "aphin". Defendant on the pretext of taking her to a doctor took her to hasnabad after administering her with a large quantity of aphin water' and then to the sub-registrar's office and fraudulently got the deed of gift executed by her in collusion with the deed writer and the attesting witnesses. The said deed has not been read over or explained to her, nor was the same written under her instructions. The plaintiff no. 1 was under the impression that the suit deed was executed concerning 21/2 cottahs of land. When plaintiff nos. The said deed has not been read over or explained to her, nor was the same written under her instructions. The plaintiff no. 1 was under the impression that the suit deed was executed concerning 21/2 cottahs of land. When plaintiff nos. 2 and 4 came after 'bijaya dasami, plaintiff no. 1 told them about the suit deed, whereupon they obtained certified copy of the same. Plaintiff no. 2, thereafter, took plaintiff no. 1 with himself to barasat and subsequently plaintiff no. 1 executed a deed of cancellation of the deed of gift of the suit land and got a deed of gift executed in favour of her sons that is plaintiff nos. 2 and ( 3 ) DEFENDANT when tried to harvest crops standing on the suit land on the basis of the fraudulent and void deed and the present suit was filed by the plaintiffs claiming that they are in possession of the suit land. ( 4 ) THE defendant contested the suit by filing written statement denying all the material allegations of the plaintiffs and contending inter alia that the suit is not maintainable in its present form, that the plaintiffs have no cause of action, that the suit is bad for defect of parties, that the plaintiff no. 1 and her husband had reared up the defendant in their house since his childhood, that the defendant used to look after them in all respects and was looked upon by them as his son and loved by them. The defendant also alleged that the plaintiff no. 1 out of love and affection and voluntarily with full knowledge executed the deed of gift in respect of the suit land in favour of the defendant and the defendant further alleged that he is possessing the suit land since the execution of the suit deed. The said deed of gift is neither fraudulent nor void as alleged by the plaintiff and the defendant along with his wife are residing in the plaintiffs house and he is in possession of the suit land as stated above. The defendant further prayed that the suit should be dismissed with costs. ( 5 ) ON the above pleading the following issues were framed :1. Have the plaintiffs any cause of action for this suit ? 2. Was the deed for gift numbered 8672, dated 27-9-1984 executed under coercion and is fraudulent and void ? The defendant further prayed that the suit should be dismissed with costs. ( 5 ) ON the above pleading the following issues were framed :1. Have the plaintiffs any cause of action for this suit ? 2. Was the deed for gift numbered 8672, dated 27-9-1984 executed under coercion and is fraudulent and void ? 3. Have the plaintiffs got title and possession in and over the suit land ? 4. Are the plaintiffs entitled to the decree as prayed for ? 5. To what reliefs, if any, are the plaintiffs entitled ? ( 6 ) ON contest the learned trial judge dismissed the suit. The plaintiffs preferred appeal and the learned appellate court below allowed the appeal and set aside the judgment and decree passed by the learned trial judge. The suit was decreed by the appellate court below in part and the deed of gift dated 27-9-1984 in favour of defendant was declared void and it was further declared that the plaintiff nos. 2 to 4 have right, title and interest and possession in the suit property and the plaintiff no. 1 have no right, title or interest or possession over the suit property. The id. Appellate court below also passed an order restraining the defendant permanently from interfering with the possession of the plaintiff nos. 2 to 4 in the suit property. ( 7 ) HENCE this second appeal has been preferred by the defendant being the appellant. On consideration of the materials on record, the evidence and the judgments delivered by the courts below the following substantial questions of law are framed for the purpose of hearing this appeal :1. Whether the learned appellate court below applied correct principle of law and came to a decision, on the basis of the evidence on record that the appellant has not acquired any title to the suit property on the basis of the deed of gift executed on 27-9-1984 and correctly came to the decision that the said deed of gift is not the result of free and voluntary act of the donor. 2. Whether the appellate court below misdirected himself in interpreting the law in the perspective of the admitted fact that there is no stipulation in the original deed of gift executed in favour of the defendant/ appellant empowering the donor to cancel or revoke the said deed of gift. 3. 2. Whether the appellate court below misdirected himself in interpreting the law in the perspective of the admitted fact that there is no stipulation in the original deed of gift executed in favour of the defendant/ appellant empowering the donor to cancel or revoke the said deed of gift. 3. Whether the suit is hit by the provisions of order 2, rule 2 of the code of civil procedure inasmuch as the plaintiffs/respondents have not claimed any relief in the suit in respect of the deed of cancellation executed on 24-10-1994 and whether in such circumstances the appellate court below came to right finding to the effect that the respondent nos. 2 to 4 have right, title, interest and possession in the suit property. 4. Whether the judgment and decree passed by the appellate court below was on proper scrutiny of the judgment of the trial court as envisaged in the code of civil procedure. 5. Whether the judgment and decree passed by the appellate court below is based on surmise and conjecture and can be termed as perverse. ( 8 ) THE learned counsel for the appellant when making his submissions argued all the substantial question of law in a composite manner. The learned counsel for the appellant submitted that evidence on record go to show that the appellant/defendant started residing with the plaintiff no. 1 as her attendant since 1970 and after 14 years of sincere service rendered by the defendant the plaintiff no. 1 being satisfied, executed the deed of gift in favour of balai chandra parui, the defendant/appellant. This deed of gift according to the learned counsel for the appellant was executed by the donor and accepted by the defendant/ appellant immediately thereafter. The learned counsel further submitted that after said deed of gift was executed in favour of the defendant, the plaintiff/respondent no. 1 cannot revoke the said deed of gift in as much as the original deed of gift executed in favour of the defendant became complete on this execution and registration and also by acceptance of the defendant. The learned counsel for the appellant in this regard relied on section 8 of the transfer of property act, 1882. Relying on this provision, the learned counsel for the appellant submitted that the transfer becomes complete in such a case forthwith unless different intention is impressed or implied. The learned counsel for the appellant in this regard relied on section 8 of the transfer of property act, 1882. Relying on this provision, the learned counsel for the appellant submitted that the transfer becomes complete in such a case forthwith unless different intention is impressed or implied. ( 9 ) THE learned counsel for the appellant also relied on section 42 of the said act and submitted that since the donor did not reserve the power to revoke the transfer originally made in favour of the defendant, plaintiff/respondent no. 1 cannot revoke or cancel the said deed. In this regard the learned counsel for the appellant also relied on the provisions of sections 122 and 126 of the transfer of property act. ( 10 ) THE learned counsel for the appellant referring to the provisions of section 17 of the registration act, 1908 submitted that where the deed of gift is executed and registered it cannot be normally revoked or cancelled. ( 11 ) THE learned counsel for the appellant referred to the averments made in paragraph 5 of the plaint and submitted that there it has been stated that the plaintiff no. 1 is an illiterate and pardanashin lady of ill education. But p. w. 1 in her evidence stated that 'my sons used to write letters and i used to reply to them'. P. w. 2 rabindra nath chakraborty in his cross-examination stated "there were many exchange of letters". The learned counsel for the appellant further submitted that p. w. 1 in cross-examination has stated "i have gone to saheb doctor". The learned counsel for the appellant submitted that from the evidence on record that is from the exhibits it will appear that the money orders send to the p. w. 1 were receipted by the lady, that is p. w. 1, by putting her signature over there. In the deed of gift also, the signature of the lady appeared. The learned counsel for the appellant submitted that in view of the evidence on record and in view of the admitted evidence on exhibit it will appear that the learned appellate court below went against the evidence on record and as such came to a perverse finding. In the deed of gift also, the signature of the lady appeared. The learned counsel for the appellant submitted that in view of the evidence on record and in view of the admitted evidence on exhibit it will appear that the learned appellate court below went against the evidence on record and as such came to a perverse finding. ( 12 ) THE learned counsel for the appellant relied on a decision reported in 1993 (1) cal lj 193 : (air 1993 calcutta 144) (ratanlal bansilal v. Kishorilal goenka ). This is a full bench judgment of this high court. The learned counsel for the appellant submitted that in this judgment the hon'ble full bench clarified the scope of section 100 of the code of civil procedure before amendment and after amendment of 1976. The learned counsel for the appellant submitted that mixed questions of law and fact can be a substantial question of law and the second appellate court can interfere in such a case. The learned counsel laid stress on the observations of the full bench judgment made in paragraphs 8, 20, 26, 27, 93, 96, 102 and 103 which are quoted here-inbelow: "8. If we go by the decision in boobna's case (1988 (1) cal lj 278) (supra), the appeal is not maintainable. The earlier division bench in boobna's case (supra), held that the expression "substantial question of law" as now appearing in the amended section 100 of code should be construed in the light of the tests laid down by the larger bench of the supreme court consisting of five judges in (2) sir chunilal v. Mehta and sons ltd. V. Century spinning and manufacturing co. , reported in air 1962 sc 1314 . 20. Mixed question of law and fact has been held to a question of law. Facts may be settled, so is the law but its application to the fact may be troublesome and may call for a decision by the high court. 26. The next amendment is with regard to section 103 of the code. The unamended and the amended provisions are extracted below: before amendment, 1976. 103. Facts may be settled, so is the law but its application to the fact may be troublesome and may call for a decision by the high court. 26. The next amendment is with regard to section 103 of the code. The unamended and the amended provisions are extracted below: before amendment, 1976. 103. Power of high court to determine issues of fact in any second appeal the high court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of illegality, omission, error or defect such as in referred to sub-section (1) of section 100. After amendment, 1976. 103. Power of high court to determine issue of fact in any second appeal, the high court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal (a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100. 27. The amendment was made simultaneously with that of section 100 of the code. It is canvassed that for the purpose of shutting out the grounds of perversity of factual inference or mixed question of law and fact, a few words in the unamended section 103 which referred to irregularity, error etc. Have been omitted. However, the section despite the charge only makes it clear that it applies even where the failure to decide a question occurred not only in the lower appellate court but also in the trial court. 93. There is a catena of decisions where the supreme court has accepted that the substantial question of law need not necessarily be of public importance. We have earlier referred to budhwanti v. Gulab chand prasad. (air 1987 sc 1484) (supra) where the supreme court held that perversity of the finding of fact or the finding vitiated by application of wrong tests or on the basis of conjectures and assumptions has to be set aside by the supreme court in a second appeal in order to render justice. (air 1987 sc 1484) (supra) where the supreme court held that perversity of the finding of fact or the finding vitiated by application of wrong tests or on the basis of conjectures and assumptions has to be set aside by the supreme court in a second appeal in order to render justice. In boobna this decision was not considered to be expository of the effect of the amendment as the supreme court in this decision did not refer to that aspect at all. But it is to be noted that there the appellant before the supreme court pleaded that the high court had erred in interfering with the finding of fact of the district court and this wrongly exercised its judicial discretion which section 100 confers on it. It is true that the supreme court did not in terms refer to the amended provision of section 100. But when it upheld the admission of the second appeal and reversal of the order of the district court it cannot be presumed that it was blind to the amendment. Moreso, when against the specific plea against the competence of the high court, the supreme court observed (at p. 1487 of air) : "since the appellate judge had rendered his finding on the question of bona fide requirement of the shop by the landlord on baseless assumptions and wrong principles of law, the high court was justified in setting aside the finding of the appellate judge even though it was factual in character. It is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumption, then a high court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding. " obviously, the supreme court in the case was not unmindful of what is a substantial question of law, and impliedly held that what substantially affected the rights of the parties to the dispute would assume a substantial character and further that the legality of finding of fact is a question of law. Therefore, in the case the erroneous finding affecting the party would be a substantial question of law. 96. Therefore, in the case the erroneous finding affecting the party would be a substantial question of law. 96. The learned counsel for the respondents submits that though chunilal's case ( air 1962 sc 1314 ) has been referred to, the observations in the concluding part of paragraph 9 of bhargava's case ( air 1991 sc 1233 ) are contrary to the law declared by the larger bench in chunilal's case and accordingly cannot prevail. In paragraph 9, the supreme court observed : "the proposition that reciprocal promises are sufficient to bring about the formation of a contract is well settled, and indeed elementary. But, the high court does not appear to have been invited to examine the question whether this proposition in its application to the case assumed a substantial character as between the parties. The appeals did involve a question of law. That question directly and substantially affected the rights of the parties. It is possible to assume that the high court considered the question as a substantial one between the parties. We did not think that it would be appropriate to fault the judgment on this ground, though the point might well have been an eminently arguable one if it had been raised before the high court. In any event in the view we take of the second contention this point loses its materiality. " 102. Another decision of a two-judge bench of the supreme court in srichand gupta v. Gulzar singh, (1992) 1 scc 143 : ( air 1992 sc 123 ) has expressed similar view. It held that the finding of fact is vitiated in law where it is primarily based on inadmissible evidence. The court observes :"having found the finding vitiated, it is open to the high court to re-examine and re-appreciate the evidence on record. . . . . . . . . we do not find any error in such re-appraisal". 103. There is one more decision of the supreme court by a bench of two-judges viz. (34) dil bagrai punjabi v. Sharad chandra, air 1988 sc 1858 . There the supreme court held that where in a suit the lower courts had without considering any part of the evidence, oral or documentary, come to a finding of fact the high court would be right in reversing the finding. (34) dil bagrai punjabi v. Sharad chandra, air 1988 sc 1858 . There the supreme court held that where in a suit the lower courts had without considering any part of the evidence, oral or documentary, come to a finding of fact the high court would be right in reversing the finding. The court is under a duty to examine the entire relevant evidence on records and if it refuses to consider important evidence having direct bearing with the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the high court is fully authorised to set aside the finding," ( 13 ) THE learned counsel for the appellant submitted that the suit is hit by the provision of order 2. Rule 2 of the cpc inasmuch as the whole claim was not made out in the plaint. The learned counsel for the appellant also submitted that the 1 st deed of gift which was. Executed in favour of the defendant (appellant) herein was not made by way of coercion inasmuch as absence of good faith even does not always tantamount to coercion. The learned counsel for the appellant submitted that the second appellate court can interfere with a judgment and decree passed by the appellate court as a matter of law with the appraisal of the evidence by the trial court suffers from material irregularities or is based on inadmissible evidence or on conjecture and surmises. Even if there is a finding of fact, second appellate court can interfere. The learned counsel for the appellant relied on a judgment reported in (2001) 3 scc 179 : (air 2001 sc -965) (santosh hazari v. Purushottam tewari ). The learned counsel for the appellant laid stress on the observations made by the hon'ble apex court in paragraphs 15 and 16 of this judgment. The learned courisel for the appellant further submitted that as observed by the hon'ble apex court in this judgment that the second appellate court can interfere also if there is perversity in the judgment and decree under challenge. The learned counsel for the appellant submitted that the judgment and decree passed by the appellate court below is totally perverse inasmuch as the learned appellate court below recorded his finding contrary to the evidence on record. The learned counsel for the appellant submitted that the judgment and decree passed by the appellate court below is totally perverse inasmuch as the learned appellate court below recorded his finding contrary to the evidence on record. The said paragraphs 15 and 16 of the, judgment of the apex court in the matter of santosh hazari ( air 2001 sc 965 ) (supra) are quoted hereinbelow : "15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not re-state the effect of the evidence or reiterate the reasons given by the trial court, expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (see girijanandini devi v. Bijendra narain choudhary), air 1967 sc 1124 . We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal- should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal- should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more-so when the findings are based on oral evidence recorded by the same presiding judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge. 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 conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (see madhusudan das v. Smt. Narayanibai), air 1983 sc 114 . The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the findings of the trial judge on a question of fact. (see sarju pershad ramdeo sahu v. Jwaleshwari pratap narain singh), air 1951 sc 120 . Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts, of the additional obligation cast on them by the scheme of the present section 100 substituted in the code. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts, of the additional obligation cast on them by the scheme of the present section 100 substituted in the code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the high court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the high court in second appeal because the jurisdiction of the high court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one. 16. Reverting to the facts of the case at hand, prima facie we find that the first appellate court did not discharge the duty cast on it as a court of first appeal. The high court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of section 100 of the code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the high court registry or the court and yet the appellant had persisted in his default. That was not done. In our opinion, the following substantial question of law does arise as involved in the case and worth being heard by the high court : whether on the pleadings and the material brought on record by the defendant, the first appellate court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under article 65 of the limitation act, 1963, moreso when such finding was arrived at in reversal of the findings of the trial court?" 13a. The learned counsel for the appellant also relied on another decision reported in (2001) 4 scc 262 : ( air 2001 sc 1273 ) (kulwarit kaur v. Gurdlal singh mann ). Relying on this judgment, the learned counsel for the appellant submitted that in this judgment the hon'ble apex court has observed that the proposition that appreciation of evidence is totally prohibited in second appeal cannot be accepted as being too rigid. The learned counsel for the appellant also submitted that the question as to whether a lower court finding is perverse or not is a substantial question of law and according to the learned counsel for the appellant the finding of the appellate court below that the plaintiff no. 1 is absolutely illiterate is a perverse finding inasmuch as this finding totally goes against the evidence on record. The learned counsel for the appellant laid stress on paragraph 34 of the judgment of the hon'ble apex court delivered in the matter of kulwant kaur ( air 2001 sc 1273 ) (supra) for the sake of discussion the said paragraph 34 (of scc) : (para 32 of air) is quoted hereinbelow : "34. Admittedly, section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the high court is concerned. Needless to record that the code of civil procedure (amendment) act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the high court in our view will be within its jurisdiction to deal with the issue. This, however, only in the event such a fact is brought to light by the high court explicitly and the judgment should also be categorical as to the issue of perversity visa-vis the concept of justice. Needless to say, however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the high court as to perversity. Needless to say, however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the high court as to perversity. In this context reference be had to section 103 of the code which reads as below :"103. In any second appeal, the high court may, if the evidence on the recdrd is sufficient, determine any issue necessary for the disposal of the appeal. (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100. " the requirements stand specified in section 103 and nothing short of it will bring it within the ambit of section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate, however, that there must be a definite finding to that effect in the judgment of the high court so as to make it evident that section 100 of the code stands complied with. " ( 14 ) THE learned counsel for the appellant/defendant further submitted that the submission of the respondents to the extent that deed of gift executed in favour of the appellant/defendant not made in good faith or not voluntarily is no ground for cancellation of the deed. The learned counsel for the appellant referred to section 34 (3} of the indian registration act. The learned counsel for the appellant further submitted that though the prescriptions were marked exhibit but the doctor who signed the prescription was not examined. The learned counsel for appellant referred to the observation of the appellate court below in this regard which according to the learned counsel are totally perverse being based on surmise and conjecture. The learned counsel for the appellant also referred to the provisions of section 42 of the transfer of property act as well as section 126 of the said act and submitted that personally executing the deed of gift and after registration and also after acceptance by the donee, the donor cannot cancel the said deed of gift. The learned counsel for the appellant also referred to the provisions of section 42 of the transfer of property act as well as section 126 of the said act and submitted that personally executing the deed of gift and after registration and also after acceptance by the donee, the donor cannot cancel the said deed of gift. ( 15 ) THE learned counsel for the appellant then submitted that in any event if there is concurrent finding of facts also on an issue or on a particular question then also the second appellate court cannot mechanically decline to interfere. The learned counsel for the appellant in this regard relied on the observations made in paragraph 8 of the judgment of the hon'ble apex court reported in (2001) 7 scc 189 : ( air 2001 sc 3201 ) (hafazat hussain v. Abdul majeed) and the observation made in the said paragraph 8 of the judgment is quoted hereinbelow for the sake of convenience and discussion in the matter : 8. We have carefully considered the submissions of the learned counsel appearing on either side. No doubt, it has been repeatedly pointed out by this court that concurrent findings recorded by the trial judge as well as the 1st appellate judge on proper appreciation of the materials on record should not be disturbed by the high court, while exercising second appellate jurisdiction, but at the same time, it is not an absolute rule to be applied universally and invariably since the exceptions to the same also were often indicated with equal importance by this court, and instances are innumerable where dispute (sic) such need and necessity warranting such interference, if the second appellate court mechanically declined to interfere, the matter has been even relegated by this court to the second appellate court to properly deal with the claims of parties in the second appeal objectively keeping in view the parameters of consideration for interference under section 100 of the civil procedure code. Therefore, it becomes necessary to see whether the learned single judge in the high court has transgressed the permissible limits. " ( 16 ) THE learned counsel then relied on another decision of the hon'ble apex court reported in air 1969 sc 204 (ramkristo mandal v. Dhankisto mandal ). Therefore, it becomes necessary to see whether the learned single judge in the high court has transgressed the permissible limits. " ( 16 ) THE learned counsel then relied on another decision of the hon'ble apex court reported in air 1969 sc 204 (ramkristo mandal v. Dhankisto mandal ). Relying on this judgment of the hon'ble apex court the learned counsel for the appellant submitted that in view of the provision of section 100 and order 42, rule 11 of the code of civil procedure now plea can be raised in a second appeal if it is a question of law. The learned counsel for the appellant then submitted that though the prescriptions were exhibited but the doctor was not examined. The effect is that evidence becomes hearsay evidence. In this context the learned counsel for the appellant relied on a decision reported in air 1968 bom 112 (md. Yusuf v. D. ). In this judgment the hon'ble division bench of bombay high court observed :"the reasons on which the decision of bhagwati, j. Is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereto used to set at naught the well recognised rule that hearsay evidence cannot be admitted. This question has been discussed by halsbury at paragraph 533 at page 294 (halsbury's laws of england, 3rd edition, vol. 15) under the heading hearsay says halsbury :". . . . . . . . . . . . . . . . . . . . STATEMENT in documents may also be hearsay. So, if a had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose but not to prove the truth of any statement of fact herein. "in paragraph (534) halsbury has discussed the reasons for rejection of hearsay evidence and says :" the reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of the repetition, the opportunities for fraud which its admission would offer and the waste of time, involved in listening to ideal rumour. " ( 17 ) RELYING on this judgment the learned counsel for the appellant submitted that the prescriptions were submitted or were exhibited but the doctor that is the author of the prescription was not examined/and as a result the evidence becomes hearsay evidence and cannot be believable. ( 18 ) THE learned counsel then submitted that in case of two documents that is when on cancellation of the first document a second document is made unless there is stipulation in the first document to that extent, the second deed does not appear to be genuine. The learned counsel referred to a decision of the hon'ble apex court reported in air 1995 sc 1607 (s. v. r. mudaliar v. Rajabu f. Buhari ). ( 19 ) THE learned counsel for the appellant then relied on a decision reported in (2000) 6 scc 120 : ( air 2000 sc 2108 ) (rajappa hanamantha ranoji v. Mahadev channabasappa ). ( 20 ) THE learned counsel for the appellant relying on the decision submitted that if there is lack of evidence, perversity, or non-examination of key witnesses, the high court can interfere. The learned counsel for the appellant also submitted that in this judgment the hon'ble apex court observed that if the findings of the first appellate court are not based on a proper appreciation of the evidence, the high court then also can interfere in a second appeal. The learned counsel then relied on another decision of the hon'ble apex court reported in (2000) 6 scc 604 : ( air 2000 sc 2745 ) (sashi kanta ruiav. Indo minerals ). The learned counsel for the appellant submitted that in this judgment the hon'ble apex court has held that the high court is duty-bound to consider and base its conclusion on the relief, pleading and the findings thereon of the first appellate court, reached after appreciation of the evidence. The learned counsel for the appellant thereafter submitted that in another judgment reported in (2000) 5 scc 652 (state of rajasthan v. Harphool singh ). The learned counsel for the appellant thereafter submitted that in another judgment reported in (2000) 5 scc 652 (state of rajasthan v. Harphool singh ). The learned counsel for the appellant submitted that in this judgment the hon'ble apex court has observed that under section 96 and section 100 of the civil procedure code the high court can interfere with the findings of the lower appellate court if the said findings are based on surmise and conjecture or the findings are perverse and not based on legally accepted evidence which are patently contrary to law decided by supreme court. In this judgment the hon'ble apex court also observed that even if there is concurrent findings by both the courts below then also the high court can interfere, where there are glaring inconsistencies and contradiction in the evidence and issues raised are serious. The learned counsel for the appellant then submitted that from the above decision of the hon'ble apex court it is quite clear that the high court can interfere in some certain matters if the judgment delivered by the courts below suffer perversity or the judgments are based on surmise and conjecture. The learned counsel for the appellant submitted that since the entire claim has not been included in the suit the same is barred under order 2, rule 2 of the code of civil procedure. ( 21 ) THE learned counsel for the appellant then submitted that in view of the provisions of section 126 of the transfer of property act, the gift made in favour of the defendant cannot be revoked. The learned counsel for the appellant submitted that without looking into the statutory provision or on making a wrong test of law the appellate court below come to the conclusion and here also it is permissible for the second appellate court to interfere into the matter. The learned counsel for the appellant in this context relied on a decision of the hon'ble apex court reported in air 1987 sc 1484 (budhwanti v. Gulab chand prasad ). The learned counsel for the appellant laid stress on paragraphs 11 and 12 of this judgment of the hon'ble apex court which paragraph for the sake of discussion, are quoted hereinbelow :"11. Coming now to the ground of eviction based on the bona fide requirement of the respondent, mr. The learned counsel for the appellant laid stress on paragraphs 11 and 12 of this judgment of the hon'ble apex court which paragraph for the sake of discussion, are quoted hereinbelow :"11. Coming now to the ground of eviction based on the bona fide requirement of the respondent, mr. Javali argued that the bona fides of the claim is not established either by the pleadings or the evidence and hence the trial court and the high court were in error in sustaining the said ground of eviction. It was pointed out by the counsel that in the plaint there is only a casual statement about the requirement of the shop by the landlord and in the evidence it was not made clear whether the shop was required for expansion of the existing business or for starting a new business venture for the benefit of the younger members of the joint family. The trial court has discussed the case of bona fide requirement in para 14 of its judgment and has held that the landlord is bona fide in need of shop to engage two members of the joint family in business. The appellate judge has reversed the finding of the trial court on four grounds, viz. , that the tenants were refugees from west pakistan and had no shop of their own in the town of gaya, that from the point of comparative hardship it would be the tenants who would suffer more than the landlord by an adverse decision, that the shop occupied by the appellants is only a small portion in a massive building in the occupation of the landlord and that the landlord's requirement of the building was more attributable to a desire to recover possession rather than on account of any genuine need for it. The high court has pointed out that the appellate judge had completely misdirected himself in his approach to the question because of erroneous assumptions of facts as well as law. Admittedly, the tenancy had commenced in 1932 which was long prior to the partition in 1947 and hence there can be no question of the tenant being a refugee from west pakistan. Likewise, the application of the test of comparative hardship between the landlord and the tenant was an extraneous test because no such test has been prescribed by the act for going into the reckoning. Likewise, the application of the test of comparative hardship between the landlord and the tenant was an extraneous test because no such test has been prescribed by the act for going into the reckoning. Then again it was noticed that without any evidence or materials the appellate judge has assumed that the main building in the occupation of the joint family is a massive building and that the leased portion constitutes only a negligible area. Likewise the appellate judge had no materials to hold that the landlord's requirement of the building was only born out of desire and not on account of any genuine need. Since the appellate judge had rendered his findings on the question of bona fide requirement of the shop by the landlord on baseless