JUDGMENT K.C. Sood, J. - This second appeal, under Section 100 of the Code of Civil Procedure, arises out of the judgment and decree of the learned District Judge, Shimla, dated 8th January, 1998. 2. Plaintiff B.K. Chawla, who is respondent in this appeal, laid a suit before the learned trial Court for permanent prohibitory injunction and also for mandatory injunction, on the allegation that he is in possession of the premises known as "House No. 82/2" Moti Maszid, Ganj Road, Shimla, as tenant under the Punjab Wakf Board. The floor immediately above his premises, known as House No. 81/1, 81/2 and 81/3 are in occupation of the defendant, the appellant herein, as tenant. Both the plaintiff and defendants are the tenants of the Punjab Wakf Board. 3. The grievance of the plaintiff was that though the premises were let out to the defendant for residential purposes but he changed the user and starting using the tenanted premises for commercial purposes. The defendant stored large quantity of merchandise like serials, oils etc. As the building is about 100 years of old, the walls become out of plumb, the floor started sagging and wooden frames of the doors have de-shaped. The plaintiff approached the defendant, several times, requesting him not to store heavy materials in the residential premises but without any positive response from the defendant. The plaintiff complained to the Municipal Corporation, Deputy Commissioner, Shimla, owner landlord of the building "Punjab Wakf Board" and even the police, but failed to evoke any response from them. The plaintiff also alleged that he had an approach to his house through the wooden stairs, leading to the top storey, and that approach has been blocked by the defendant by raising a wall, replacing the tin sheet door closing approach to his house. The plaintiff prayed for permanent prohibitory injunction with the direction to the defendant not to use the premises for commercial purposes or to store merchandise in the premises in his occupation. The plaintiff also sought a mandatory injunction with a direction to the defendant to restore the stair case, after demolishing the wall. 4. The learned trial Court by judgment dated 15th July, 1993, found that there is "no change of user in respect of the premises in occupation of the defendant. As a matter of fact, the premises consist of three storey. 4. The learned trial Court by judgment dated 15th July, 1993, found that there is "no change of user in respect of the premises in occupation of the defendant. As a matter of fact, the premises consist of three storey. On the floor defendant runs his shop and stack his merchandise. 5. No evidence was led by the plaintiff to show that the premises were let out to the defendant for residential purposes and not for commercial purposes. The trial Court concluded that the plaintiff has failed to prove any change in the user of the premises in occupation i.e. 81/1, 81/2, 81/3 Moti Maszid, Ganj Road, Shimla. 6. The learned trial Court, however, found that the stair case leading to the house of the plaintiff and blocked by the defendant by raising a brick wall and directed the defendant to restore the stair case after demolishing the wall. . 7. Dissatisfied, both the plaintiff and defendant carried separate appeals before the learned District Judge. 8. The learned District Judge affirmed the findings of the learned trial Court and dismissed the appeals. 9. Still aggrieved, defendant Ram Murti is in this second appeal against the mandatory injunction directing him to restore the stairs leading to the house of the plaintiff. 10. This appeal was admitted by this Court on 31st August, 1998 by passing the following order ; "Admit on the substantial questions of law framed and attached with the grounds of law." 11. The substantial questions of law in the grounds of appeal are : 1. Whether a tenant under the law without joining the owner of the premises has a right to file a suit for mandatory injunction against the other tenant of the same building ? 2. Whether the suit of the respondent-plaintiff is bad for non-consideration of the necessary parties ? 3. Whether there ^as been misreading of the evidence adduced by the appellant ? 4. Whether the plaintiff-respondent without giving the date of cause of action and the date of alleged closure of the passage/stairs was entitled to a mandatory injunction ? 5. Whether by closure of the alleged wooden stairs had any effect on the rights of the respondents-plaintiff, especially in view of the existence of an approach to this premises is admitted by him ? . 6. 5. Whether by closure of the alleged wooden stairs had any effect on the rights of the respondents-plaintiff, especially in view of the existence of an approach to this premises is admitted by him ? . 6. Whether the suit for mandatory injunction without ascertaining any right to use the alleged stairs are competent and maintainable under the law ? 7. Whether point no. 1 framed by the 1st Appellate Court covered all the pleas raised by the appellant/defendant, if so, what is its effect? Question No. 1: 12. So far this question is concerned, the definite, case of the plaintiff was that the stair case was blocked by the defendant and none else, by constructing a wall replacing tin sheeted door. In this view of the matter, owner of the premises cannot be said to be a necessary party and the suit cannot be said to be bad for want of joinder of the owner. Question No. 2: 13. This question was not pressed, during the course of hearing. In fact this question merges in question No. 1 above i.e. bad for non-joinder of the owner. Question No. 3: 14. I went through the evidence with the help of the learned Counsel for the parties. There is no misreading of any evidence on record. In fact both the trial Court and the first appellate Court has referred to the evidence, which shows that there was a wooden stair case leading to the premises of the parties. This stair case was enclosed by a tin sheeted door. The access to the door was blocked by the defendant by raising a brick wall in front of the door. The learned appellate Court has referred to the certified copy of the plan Ex. PW-6/F pertaining to the premises in occupation of the plaintiff i.e. 82/2 Moti Maszid, Ganj Road, Shimla. The plan shows existence of stair case leading to the upper storey. As noticed by the learned appellate Court, the stair case is marked by horizontal lines with a word "Up" in this plan, which shows that there existed a stair case leading to the premises in occupation of the plaintiff, from the side of the shop of the defendant. The stairs open on a public road in front of the shops of the defendant. 15. Two sets of photographs were also placed on record. In the first set i.e. Exs. The stairs open on a public road in front of the shops of the defendant. 15. Two sets of photographs were also placed on record. In the first set i.e. Exs. PX/1, PX/2 and PX/3 a wall in front of a tin door have been constructed in part whereas in second set i.e. Exs. PY-1 and PY-3, the tin sheet door have completely been covered by the wall. These photographs were taken when the wall was being raised by the defendant. These photographs were taken at the instance, of the plaintiff by Ashok Kumar (DW-4). Ashok Kumar (DW-4) in his examination says that the photographs were taken by him on 22nd August, 1989. An expert witness, Shri S.P. Kapoor (Retired Superintending Engineer) was also produced, who had prepared the plan Ex. PW-3/A. According to this witness, he inspected the premises and prepared this plan and his report is Ex. PW-2/B, which shows that there were stairs in existence on a space measuring 8" x 3" and that the opening of the stairs at the level of the top floor of the building had been blocked by means of brick wall. Appearing as PW-2, witness states about the existence of the stairs which had been blocked by the defendant. Other witnesses to this effect are Tej Vimal Diwan (PW-3), Rakesh Sharma (PW-4), B.K. Chawla (PW-6), and Smt. Krishna (PW-9) the Sweeper who used to clean the stairs. Nathu Ram (PW-10) also speak about the existence of the stairs leading from the side of the top floor. It is their evidence that these stairs were meant for the people to approach and clean the dry latrine. In view of this evidence on record, it cannot be said that there has been misreading of the evidence either by the learned trial Court or first appellate Court. There is no acceptable evidence to the contrary. Question No. 4: 16. Mr. Gupta, learned Senior Advocate, submits that the plaintiff has not given the date of cause of action i.e. the date on which these stairs were closed by the defendant and, therefore, on this ground, the plaintiff should have been non-suited. The question raised is without any foundation. 17. The plaintiff in his plaint in para 5 specifically mentioned that defendant on or about 11th April, 1987 closed the wooden stairs leading to the premises of the plaintiff unauthorisedly and illegally. The question raised is without any foundation. 17. The plaintiff in his plaint in para 5 specifically mentioned that defendant on or about 11th April, 1987 closed the wooden stairs leading to the premises of the plaintiff unauthorisedly and illegally. The question raised is non-existent. Question No. 5: 18. In-so-far this question is concerned, there is overwhelming evidence and no evidence to the contrary that there were two approaches to the house of the plaintiff. The approach in question, which was closed by the defendant, was used by the Sweeper and others for cleaning the house etc. The plaintiff definitely had right to use these stairs. The question raised is non-existence. Question No. 6: 19. Mr. Gupta, learned Senior Advocate, for the appellant has not been able to show how the suit for mandatory injunction is not maintainable in the facts and circumstances of the case/pleadings of the parties. Question No. 7: 20. This question cannot be said to be a substantial question of law. No arguments were addressed by the learned Senior Advocate for the appellant on this question. 21. To be fair to the learned Senior Advocate, he drew my attention to the provisions of Order VII Rule 1 of the Code of Civil Procedure, which provides that the plaint should contain: (a)........ (b)........ (c)........ (d)........ (e) the facts constituting the cause of action and when it arose; (f)........ (9)........ (h)........ (i)....... 22. I have already said that the entire facts, constituting cause of action, including the date on which it arose, has been spelled out in the plaint and there is nothing wrong with the frame of the suit. This apart the question was not addressed before the learned first appellate Court and for this reason too it is not open to the appellant to raise it, for the first time, in second appeal. 23. Mr. Gupta, learned Senior Advocate, for the appellant referred to Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179 : 2001(1) Cur.L.J. (C.C.R.) SC 605, Kulwant Kaur and other v. Gurdial Singh Mann (Dead) by LRs. and others, 2001(4) SCC 262 : 2001(2) Cur.L.J. (C.C.R.) SC 122, Hafazat Hussain v. Abdul Majeed, 2001(7) SCC 189 and Rattan Dev v. Pasam Devi, 2002(7) SC 441 to buttress his case. 24. None of the authorities, cited by Mr. Gupta, learned Senior Advocate, are of any assistance to the appellant. and others, 2001(4) SCC 262 : 2001(2) Cur.L.J. (C.C.R.) SC 122, Hafazat Hussain v. Abdul Majeed, 2001(7) SCC 189 and Rattan Dev v. Pasam Devi, 2002(7) SC 441 to buttress his case. 24. None of the authorities, cited by Mr. Gupta, learned Senior Advocate, are of any assistance to the appellant. In Santosh Hazari their Lordships observed that improper functioning of first appellate court may give rise to substantial question of law, if it shows non-application of mind and if a doubt arises about the approach of the first appellate Court then such doubt may itself give rise to a substantial question of law. Their Lordships also observed that substantial question of law must have foundation in the pleadings and should have emerged from the sustainable findings of acts reached by the Court of fact. A new pleading raised for the first time in the second appeal cannot be said to be a question involved in the case unless it goes to the,ro9t of the case. In the present case, as already observed, there is no misreading of the evidence. Learned Senior Counsel has not been able to point out any evidence which has not been considered by the learned trial Court or first appellate Court. 25. In Kulwant Kaur the Apex Court held that in a second appeal findings 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 perversity had crept in the High Court in its jurisdiction had to deal with such question as substantial question of law. In the present case, the findings recorded by the learned trial Court and first appellate Court cannot be said to be either dehors the evidence on record or result of assumptions or conjectures. 26. To similar effect, are the observations of the Apex Court in Hafjzat Hussain. In Rattan Devi the ratio has no application in the facts of this case. 27. No other point was urged. 28. In result, the appeal fails and is dismissed. 29. No costs. CMP No. 392 of 1998 30. In view of the dismissal of the main appeal, this application does not survive. Interim order dated 31st August, 1998 is vacated. The application is disposed of. Cross-Objection of 504 of 1998 31. 27. No other point was urged. 28. In result, the appeal fails and is dismissed. 29. No costs. CMP No. 392 of 1998 30. In view of the dismissal of the main appeal, this application does not survive. Interim order dated 31st August, 1998 is vacated. The application is disposed of. Cross-Objection of 504 of 1998 31. In view of the evidence discussed above, the findings of the learned trial Court and first appellate Court are based on pure facts. The evidence has correctly been appreciated and no evidence has been excluded from consideration. Therefore, the cross-objections too are dismissed.