ARUN KUMAR MITRA, J. ( 1 ) THIS second appeal arises out of a suit for declaration and recovery of khas possession and for permanent injunction in respect of suit premises. The case in brief as has been made out by the plaintiff is as follows : the plaintiff has been the owner of suit premises measuring 2 kottah 7 chhatak 36 sqft. of land at Premises No. 15, Selimpore Road, P. S. Kasba since 14/02/1968, the date on which he purchased the said property by a registered deed of conveyance from the vendor Smt. Bimala Bala Dassi and Ors. After the purchase the plaintiff was in exclusive possession and enjoyment in the suit property. He erected the compound wall and 4 (four) small kuchcha huts on the suit property and the remaining portion remained vacant. The defendant No. 1 who is a widow and is the mother of the defendant Nos. 2 to 4 were allowed by the plaintiff towards the end of the year 1970 to use and occupy the hut mentioned in schedule 'b' to the plaint following the request by the defendant No. 1 for temporary shelter in one of the kuchcha huts on the suit land. The defendant No. 1 used to work as a domestic helper in the Dhakuria locality. She assured that with the children she would work as caretaker and out of compassion the plaintiff. Allowed them to stay in the hut as licensee. The plaintiff retained his possession of the other portion of the premises. In course of time the defendant Nos. 2 to 4 became major and the plaintiff requested the defendant No. 1 to vacate the suit property with the defendant Nos. 2 to 4 as he intended to construct a building on the suit premises. Initially, the defendants prayed for some time to vacate the suit property. The plaintiff allowed time to the defendants to arrange for some other alternative accommodation. Suddenly on 15. 07. 1980 the defendants tried to extent the kuchcha structure on the East of the existing structure forcibly but failed due to timely intervention by the plaintiff. The plaintiff thereafter revoked the licence and repeatedly requested the defendants to quit and vacate the suit premises but without any effect. Suddenly on 15. 07. 1980 the defendants tried to extent the kuchcha structure on the East of the existing structure forcibly but failed due to timely intervention by the plaintiff. The plaintiff thereafter revoked the licence and repeatedly requested the defendants to quit and vacate the suit premises but without any effect. The defendants have no right, title or interest in the suit property and they are liable to be evicted as they are interfering with the peaceful possession of the plaintiff. The defendants have also interfered with the plaintiffs' possession of the suit premises by trying to extend the kuchcha structure which was in their occupation as licensees, and hence this suit for declaration of title along with prayers for permanent injunction and recovery of possession. ( 2 ) THE original defendants have been contesting the suit by filing written statement. It is stated by the defendants that the husband of the defendant No. 1 and the father of the defendant Nos. 2 to 4, Chunilal Naskar took settlement of a portion of the land measuring about 1 and kottahs from Ramlal Mondal and constructed 2 kuchcha rooms there and continued to live there with his wife and children from 1333 B. S. till his death in 1364 b. S. On the death of Chunilal Naskar the defendant No. 1 with her children, defendant Nos. 2 to 4 have been living in the self-same rooms on payment of rent for the land and not as licensees as alleged by the plaintiff. It is stated that Maya Naskar, the daughter No. 1 also lived with her till her marriage which took place 5 years before 25/05/1983, the date on which w. S. was filed. It is also alleged that some other kuchcha huts were constructed by some other persons. All other material allegations in the plaint have been denied. ( 3 ) THE following issues were recasted at the time to trial : (1) Is the suit maintainable ? (2) Is the suit bad for non-joinder of party ? (3) Has the plaintiff any right, title and interest in respect of the suit land? (4) Whether the defendant is a thika tenant in respect of the suit property ? (5) Whether the defendants are licensees under the plaintiff ? (6) Is the license revoked ? (7) Is the plaintiff entitled to get a decree as prayed for ? (3) Has the plaintiff any right, title and interest in respect of the suit land? (4) Whether the defendant is a thika tenant in respect of the suit property ? (5) Whether the defendants are licensees under the plaintiff ? (6) Is the license revoked ? (7) Is the plaintiff entitled to get a decree as prayed for ? (8) To what other relief, if any, the plaintiff is entitled ? ( 4 ) ON consideration of the evidence on record the learned Munsif found ' that the defendants have failed to prove settlement of the land to Chunilal naskar by Ramlal Mondal and the defendants were licensees under the plaintiff. The learned Munsif further held that the license was revoked by the plaintiff and decreed the suit in favour of the plaintff. ( 5 ) APPEAL was preferred and by a judgment and decree dated 11. 12. 1988 the appellate Court allowed the appeal and set aside the judgment and decree passed by the learned Munsif and remanded the suit to the Court below allowing the defendants'/appellants' application under order XLI Rule 27 of the Code of Civil Procedure for adducing further evidence and directed the Court below to decide the suit on the basis of additional evidence to be adduced by the parties and the evidence already on record. ( 6 ) AGAINST the said judgment and decree the plaintiff preferred second appeal in the High Court at Calcutta. The said second appeal was allowed by this High Court by a judgment dated 16. 11. 1992. The judgment and decree passed by the appellate Court below were set aside and the appellate Court below was directed to allow the defendants to adduce additional evidence as asked for and to allow the plaintiff to adduce rebuttal evidence, if any. Further direction was given that the additional evidence might be taken by the appellate Court below or the trial Court might be directed to take additional evidences in respect of which the appeal was to be disposed of by the appellate Court below that is to say on the basis of the evidence on record read with evidence to be adduced by the parties in accordance with the directions of the High Court. ( 7 ) ACCORDINGLY, evidence has been taken in the trial Court and the first appeal was to be decided on the basis of recorded evidence and the evidence adduced by the parties in the trial Court in accordance with the directions of this High Court. ( 8 ) THE judgment and decree passed by the Courts below having been challenged inter alia on the grounds that the Court below should have dismissed the suit as the plaint case of license could not be proved and the evidence on record could not be properly appreciated by the trial Court. ( 9 ) THE first appellate Court made out the following points for the purpose of determination in the appeal: whether the finding of the learned Munsif that the defendant No. 1 was allowed to occupy the suit premises as a licensee with the defendant Nos. 2 to 4 under the plaintiff after the purchase of the suit property by the later is justified; whether the defendants have been in occupation of the suit premises following settlement of the land to their predecessor-in-interest as tenants and; whether the plaintiff on the basis of his title to the suit properly is entitled to recovery of possession thereof, as prayed for. ( 10 ) THE learned appellate Court below allowed to appeal on contest without costs. The judgment and decree passed by the learned Munsif were set aside. The suit filed by the plaintiff has been dismissed. ( 11 ) HENCE this second appeal. ( 12 ) BEFORE hearing the second appeal it is to be seen as to whether there is any substantial question of law involved in the appeal. The judgment and decree passed by the learned Munsif were set aside. The suit filed by the plaintiff has been dismissed. ( 11 ) HENCE this second appeal. ( 12 ) BEFORE hearing the second appeal it is to be seen as to whether there is any substantial question of law involved in the appeal. ( 13 ) ON consideration of the documents on record, plaint, written statement and the judgments delivered by both the Courts below it appears that the appeal can be heard on the following questions of law which are substantial in nature : (I) Whether in a declaratory suit when the plaintiff has filed a deed for purchase of the suit property or the land-in-question and when the defendant in his written statement has made out a different story of title of the land/suit property whether the learned appellate Court below was right in holding that the plaintiff should prove the recitals of the deed, not the deed only and more so when the defendant has not challenged any part of the recital of the deed ? (ii) Whether the judgment of the appellate Court below suffers from perversity or not ? ( 14 ) THE learned Counsel for the appellant submitted initially that before hearing a second appeal the Court should see whether there is any substantial question of law and the Hon'ble Apex Court has decided on this score clearly what would be treated as substantial question of law and as to whether the High Court is permitted to go beyond the scope of the second appeal and the substantial question of law. ( 15 ) THE learned Counsel relied on a decision reported in AIR 1987 SC p. 1484 (Budhwanti and Anr. v. Gulab Chand Prasad ). The learned Counsel laid stress on the observations made in paragraphs 11 and 12 of this judgment which 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. 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 the shop to engage two members 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 form 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 neglible 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 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 on 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 assumptions 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. Mr. Javali tried to canvass that the Appellate Judge had rendered his finding mainly with reference to the pleadings and the evidence and his incidental references to other facts and circumstances were only to reinforce his conclusion and as such his finding does not suffer from any infirmity or error. We are not persuaded by this argument because it cannot be predicted as to how far the Appellate judge's conclusion was influenced by the mistaken tests applied by him to determine the issue. ""12. We are, therefore, of the view that the finding of the trial Court which has been confirmed by the High Court regarding the respondent being bona fide in need of the shop for the business needs of the joint family does not call for any interference by this court in this appeal under Article 136 of the Constitution. " ( 16 ) THE learned Counsel then referred to another decision of this hon'ble Apex Court reported in 2000 Vol. " ( 16 ) THE learned Counsel then referred to another decision of this hon'ble Apex Court reported in 2000 Vol. (5) SCC, p. 652 (State of Rajasthan v. Harphool Singh ). The learned Counsel submitted that in this judgment the Hon'ble Apex Court observed that if the judgment and decree are perverse or not based on legally acceptable evidence and which are patently contrary to law declared by the Supreme Court, then the judgment and decree cannot have any immunity from interference in the hands of appellate authority. ( 17 ) THE learned Counsel for the appellant then relied on a decision of the Hon'ble Apex Court delivered by a bench comprising of three Hon'ble judges of the Supreme Court which is reported in 2001 Vol. (3) SCC 179 : 2001 WBLR (SC) 270 (Santosh Hazari v. Purushottam Tiwari ). In this judgment the Hon'ble Apex Court decided as to what would be termed substantial question of law and the learned Counsel specially referred to the observations made by the Hon'ble Apex Court in its paragraphs 14 and 15 are quoted hereinbelow :"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. ""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 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 restate 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 ). We would, however, like to sound a note of caution. 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 Madhusadan Das v. Narayanibai ). 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 finding of the Trial Judge on a question of fact. (See Sarju Pershad ramdeo Sahu v. Jwaleshwari Pratap Narain Singh ). 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. 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. 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 has 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. " ( 18 ) ON the same principle the learned Counsel relied on another judgment reported in 1997 Vol. (3) SCC 546 (Major Singh v. Rattan Singh and ors. ). ( 19 ) THE learned Counsel then attacked the judgment of the appellate court below and submitted that the Court cannot out of its own decide that the recitals of the title deed filed on behalf of the appellant are not correct or these recitals are to be proved and if not proved those are to be assumed as untrue. ( 20 ) THE learned Counsel submitted that the plaintiff filed a title deed in which recitals are very clear and in the written statement the defendant also did not challenge the recitals but made out a different story altogether regarding the title of the plaintiff in and over the suit land, the appellate court below out of its own came to a finding that the title has not been proved inasmuch as the recitals of the deed has not proved and naturally, no declaration of title can be made in favour of the plaintiff. ( 21 ) THE learned Counsel then submitted that the learned Court below found that exbt. 3, which is the certified copy of the report of inquiry by the police in proceeding under Section 144, Criminal Procedure Code has no relevance with the title or ownership of the land in suit insofar as the plaintiff is concerned. ( 21 ) THE learned Counsel then submitted that the learned Court below found that exbt. 3, which is the certified copy of the report of inquiry by the police in proceeding under Section 144, Criminal Procedure Code has no relevance with the title or ownership of the land in suit insofar as the plaintiff is concerned. On the score of relevancy the learned Counsel relied on a decision reported in AIR 1955 SCC 566 (Anil Behari Ghosh v. Smt. Latika bala Dassi ). The learned Counsel on the point of relevancy of a document referred to paragraph 15 of this judgment which is quoted hereinbelow :"15. It was vehemently argued at all stages of the case including the appeal before us that admittedly no citation was issued against girish Chandra Ghosh aforesaid and as he was the person most interested in the testator's estate besides the legatees named in the will, the case came directly within the purview of clause (a) of the Explanation and Illustration (ii) quoted above Girish Chandra ghosh has been found by the Judge in the first instance to have been the person most vitally interested in the estate of the testator, whether he died intestate or leaving a will, in the events which had happened. The learned Counsel for the contesting respondent suggested that it had not been found by the lower appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence. However, for purposes of this case we shall assume in favour of the appellant that Charu was the murderer. The result of such an assumption is that Girish being the nearest reversioner to the estate of the testator, in case of intestacy after the death of the testator's widow in 1921; or in the case of testamentary succession after the death of the two legatees, the testator's daughter-in-law and the nephew's wife aforesaid, and the failure of the legacy in favour of charu on account of the murder would, in either event, have sufficient interest in the estate of the testator to entitle him to challenge the grant and to obtain revocation. But, it is noteworthy that Girish who died in 1940, lived for about 19 years after the grant and he took no steps in that direction. There may be some doubt as to Girish's knowledge of the probate proceedings and of the grant until 1933; but, in our opinion, there is ample evidence in support of the finding arrived at by the Court of appeal below that Girish was aware of the grant at the latest in 1933 when Debi Prosad Mitter took proceedings to obtain a grant in his own favour also. In this application, as indicated above, he clearly stated that Charu was the murderer of his adoptive father and that Girish would succeed to his estate, which otherwise would have gone to Charu. If Girish had initiated proceedings for revocation of the grant and had insisted on the will being proved in his presence, the Courts would have had no difficulty in having all the necessary evidence before it because the chief person who had played the most leading part in the execution of the will, in its registration and in its being admitted to probate, viz. , Anil Nath Basu, was then alive and could have been examined. But for reasons not made clear in these proceedings Girish did not think it worth his while to take any steps in Court to challenge the will or the grant. , Anil Nath Basu, was then alive and could have been examined. But for reasons not made clear in these proceedings Girish did not think it worth his while to take any steps in Court to challenge the will or the grant. The estate was worth anything between five to forty lakhs, perhaps nearer five lakhs than forty lakhs. Girish was a mere pensioner belonging to a middle class family. Either he did not think it worth his while to embark on a litigation with all its uncertainties or he had not the wherewithal to do so. The record as it stands does not satisfactorily explain the reasons why Girish refrained from making any attempts to get this large estate. If the will was not genuine or valid, Girish would take the reversionary estate at once because the testator's widow died in 1921 and there was no other impediment in his way, except to get rid of the will. If, on the other hand, the will was genuine and valid, even then he would stand to gain all the interest which had been bequeathed in favour of Charu. The fact that Girish did not take advantage of his position as the nearest reversioner as on partial intestacy goes a long way to support the great probability of the will being valid and genuine, especially as it had been probated and because the appellate in his long petition for revoking the grant has not made the least suggestion casting any doubt on the genuineness and validity of the will. But it was argued on behalf of the appellant that that stage had not yet arrived and that it would be open to the appellant after obtaining an order of revocation of the grant to show that the will was either not genuine or had not been validly executed. Great reliance was placed in this connection on the judgment of a Division bench of the Calcutta High Court in 'air 1915 Cal 421 (A)', where the following observations have been made : 'no question of the genuineness of the will arises for consideration till the Court had decided that the probate must be revoked on one or more of the ground specified in Section 50, probate and administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the probate which was granted without notice to them-'brindaban v. Sureshwar', 10 Cal LJ 263 at p. 273 (B ). The question of genuineness cannot be considered till a case for revocation is made out-'durgagati v. Sourabini', 33 Cal 1001 (C ). " the observations relied upon by the appellant were made with reference to the facts of that case and were not intended to be of universal application. As pointed out above, Section 263 of the act also contemplates a case for revocation based on the single ground the will in respect of which the grant in question was obtained was a forged one. In such a case, whether or not the will was forged one would be the only question to be canvassed before the Court before the order of revocation could be made. " ( 22 ) THE learned Counsel then relied on a judgment of the Hon'ble Apex court reported in AIR 1966 SC 735 (Bhagwati Prasad v. Chandramul ). The learned Counsel relied on paragraph 9 of this judgment which is quoted hereinbelow :"9. There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court in Sheodhari Rai v. Suraj Prasad Singh, air 1954 SC 758 . In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a Shikmi settlement from the nearest reversioner. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a Shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by it in its pleadings. " ( 23 ) THE learned Counsel submitted that in the instant case the plaintiff has prayed for a clear cut decision on the question of his title and on specific ground and the defendant has taken a specific defence and now the defendant cannot change the stand and it would not be open to the defendant to take a different stand. ( 24 ) THE learned Counsel submitted that the plaintiff relied on his title deed and prayed for declaration. The defendant's possession in and over the land-in-suit can be either as tenant or trespasser or as licensee. It is the case of the plaintiff that the defendant has made out a different case altogether and stated that the land belonged to one Ramlal Mondal from whom Chunilal Naskar, the husband of the defendant No. 1 and the father of the defendant Nos. 2 to 4 took settlement and when the defendant has taken as stand that Ramlal Mondal was the owner of the land, then it is the defendants who are to prove the ownership of Ramlal Mondal and the plaintiff is not to disprove the ownership of Ramlal Mondal and admittedly the appellate Court below could not find that the defendants have become successful in proving the ownership of the plaintiff in and over the suit land and also could not prove the position of the defendants in respect of the suit land but on this evidence the appellate Court below decided that the plaintiff had failed to prove the title making its judgment perverse. ( 25 ) THE learned Counsel for the appellant submits that the judgment and decree passed by the appellate Court below should be set aside. ( 25 ) THE learned Counsel for the appellant submits that the judgment and decree passed by the appellate Court below should be set aside. ( 26 ) NO submission could be made beyond or above the submissions made by the learned Counsel for the plaintiff. ( 27 ) HEARD the learned Counsel, considered the documents on records and the judgments and decrees passed by the Courts below. It appears that the appellate Court below when deciding the first appeal, did not properly construe the evidence on record or tried to make out a third case out of his own. Admittedly, this is a suit for declaration and recovery of possession. Therefore, the plaintiff is to prove the title over it and the position of the defendants in respect of the suit land that is whether the defendants are the tenants or they are the owners or they are the trespassers or they are the licensees. From the evidence on record and from the observations of the appellate Court below it is clear that the plaintiff exhibited the Sale Deed being Exbt. 2 which is dated 14. 2. 1968 and this was the purchase documents in respect of the suit land and the appellate Court below all along accepted the position that 14. 2. 1968 was the date of purchase. The appellate Court below in one place observed that no rent receipt has been filed and in the same paragraph of its judgment the appellate Court below also observed that the land was taken from Ramlal on payment of rent and the rent was paid by Sudha. If such is the position then the observations become contradictory inasmuch as the appellate Court finds that land was taken against rent and then he finds no rent receipt has been filed. ( 28 ) THE appellate Court below in one place also found that there is no relevance regarding evidence with the inquiry report filed in 144 (2), Criminal procedure Code, proceeding, though from Sarkar's Evidence Act and from the judgment reported in AIR 1955 SC 566 it is clear that relevancy comes from the evidence adduced by the witness in the different context. ( 29 ) FROM the judgment delivered by this High Court (Single Judge bench) reported in Monishi Mohan Gupta and Ors. v. Netai Chand Dey, 1975 vol. ( 29 ) FROM the judgment delivered by this High Court (Single Judge bench) reported in Monishi Mohan Gupta and Ors. v. Netai Chand Dey, 1975 vol. (2) Cal LJ 340 it becomes clear that when in paragraph 17 of this judgment His Lordship observed "sarkar on Evidence at pages 476-1770 discussed the said question of relevancy of criminal Court judgment in Civil cases and vis-a-vis at length. " ( 30 ) THE learned appellate Court below observed contrary to this settled principle of law of relevance under the Evidence Act. ( 31 ) IN my view, the learned appellate Court below went against the evidence on record and its observations and findings are contradictory in itself. The learned Court below also decided beyond the evidence on record and made its judgment perverse to that extent. ( 32 ) THE judgment and decree passed by the appellate Court below is set aside and the judgment and decree passed by the learned Munsif is affirmed. ( 33 ) THE suit is decreed in favour of the plaintiff/appellant. ( 34 ) LET a decree be drawn up accordingly. ( 35 ) THE parties are to bear their own costs. ( 36 ) LET the Lower Court Records be sent down to the Courts below forthwith.