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2006 DIGILAW 549 (PAT)

Rijhan Rai v. Jaimangal Sah

2006-06-29

body2006
S.M.M. ALAM, J.:- This second Appeal has been preferred against the judgment and decree dated 30.7.87 passed by Sri S.B. Singh, 3rd Additional District Judge, Muzaffarpur, in Title Appeal No. 62 of 1979 whereby he has been pleased to reverse the judgment and decree dated 26.9.79 passed by Sri Krishna Kumar Shrivastava, Munsif (West), Muzaffarpur, in Title Suit No. 62 of 1979 and dismissed the suit filed by the plaintiff-appellant. 2. The brief facts of the case are as follows : 3. The plaintiff-appellant filed Title Suit No. 27 of 1973 in the Court of Munsif (West), Muzaffarpur, for declaration of his title and recovery of possession with respect to the land of C.S. Plot No. 657 appertaining to C.S. Khata No.12 of Mauza Pakohi Khas described in Schedule-I of the plaint claiming that the suit property originally belonged to Khublal Dhabi, Shyamal Dhabi and Bulaki Dhobi, sons of Charitar Dhabi. Subsequently, there was a partition amongst them and C.S. plot No. 657 with an area of 17 decimals exclusively fell in the share of Khublal Dhobi and thereafter he came in exclusive possession of the same. The said Khublal Dhobi died leaving behind his son Ratan Baitha, who came in possession of the suit property and after his death the same came in exclusive possession of Mosmat Machhiya, daughter of Ratan Baitha, as she was the only legal heir of Ratan Baitha. The plaintiff Rijhan Rai purchased the suit land along with other lands from Mosmat Machhiya through a registered sale deed dated 15.12.1954 and came in possession of the same: During the revisional survey, the defendant IInd party wanted to purchase the suit land from the plaintiff but the plaintiff refused to sell the same to them and thereafter they instigated the defendant 1st party, namely, Reshmi and Mosmat Dukhiya to dispossess the plaintiff from the land appertaining to C.S. plot no. 657. Further case of the plaintiff is that the defendant IInd party in collusion with each other fraudulently got C.S. plot no. 657 wrongly delineated along with the land of defendant 1st party by bringing the survey Amin in their collusion and accordingly, a map was prepared showing the lands amalgamated to R.S. plot no. 2107. It is said that as the plaintiff was dispossessed before the final publication of Khatiyan of revisional survey, the plaintiff did not take any step in the revisional survey. 2107. It is said that as the plaintiff was dispossessed before the final publication of Khatiyan of revisional survey, the plaintiff did not take any step in the revisional survey. Further case of the plaintiff is that the plaintiff subsequently learnt that the defendant IInd party has got a sale deed executed from the defendant 1st party in respect of a portion of disputed land although none of the defendants had title to the land mentioned in Schedule-I of the plaint nor they were in possession of the same prior to the date of dispossession. It is further said that the plaintiff asked the defendants to execute the deed of Ladavi but when the defendants refused to execute the same then the necessity of filing of the suit arose. 4. The case of the defendant 1st party, in brief, is that the suit as framed is not maintainable, the same is barred under the provision of Section 9 of the Bihar Tenancy Act. It is also barred by law of limitation and waiver. Further case is that after the cadestral survey the recorded tenant of Khata no. 12 exchanged the entire land of S.P. No. 657 with 20 decimals of land of S.P. No. 671 belonging to the grand-father of the defendant 1st party and after the aforesaid exchange Banshi Dhabi-the grand father of the defendant 1st party, came in possession of the entire area of land of S.P. No. 657 while Khublal Dhabi and his brother came in possession of 20 decimals of land from north of the S.P. No. 671 and each party continued in possession accordingly and on partition between the heirs of the recorded tenant of Khata no. 12, the said 20 decimals of S.P. No. 671, acquired through exchange, was allotted to the Patti of Muni Lal and the same was recorded in the R.S. Survey in the name of Fudeni Dhabi and Chandeshwar Dhabi, son of Muni Lal Dhabi. Thereafter, the entire area of S.P. No. 671, giving in exchange, was acquired by the Govt. for Gandhak project and the compensation thereof was paid to Fudeni Dhabi and Chandeshwar-Dhobi. Further case is that Banshi Dhabi died leaving behind him his son Kunjali Dhabi, father of the defendant 1st party, and this Kunjali Dhabi executed a sale deed dated 9.1.1951 in respect of 10 Annas share of his property of defendant no. for Gandhak project and the compensation thereof was paid to Fudeni Dhabi and Chandeshwar-Dhobi. Further case is that Banshi Dhabi died leaving behind him his son Kunjali Dhabi, father of the defendant 1st party, and this Kunjali Dhabi executed a sale deed dated 9.1.1951 in respect of 10 Annas share of his property of defendant no. 1 and 6 Annas to defendant. no. 2 but later on by mutual agreement and arrangement entire C.S. Plot No. 657 was allotted to the Patti of defendant no.1 and in the revisional survey operation the entire block consisting of S.P. No. 657, 658, 659, 668 come in possession of defendant no.1 and since then the defendant no. 1 has been coming in possession of the said land. 5. The defendant second party has filed a separate written statement but more or less the case of the defendant second party is same as of defendant first party 6. From the perusal of the judgment of the trial court it appears that on the basis of the pleadings of both the parties the trial Court framed as many as ten issues for consideration which are as follows: I. It is suit, as framed, maintainable? II. Has the plaintiff got any cause of action or right to sue? III. Is the suit barred by law of limitation, waiver and acquiescence? IV. Is the Court fee paid sufficient? V. Is the suit bad under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act? VI. Is the story of exchange propounded by the defendants correct? VII. Has the plaintiff got subsisting title to the disputed land? VIII. Is the story of possession and dispossession as alleged by the plaintiff correct? IX. Is the plaintiff entitled to a decree for recovery of possession with mesne profits? X. Is the plaintiff entitled to any other relief or reliefs? 7. VII. Has the plaintiff got subsisting title to the disputed land? VIII. Is the story of possession and dispossession as alleged by the plaintiff correct? IX. Is the plaintiff entitled to a decree for recovery of possession with mesne profits? X. Is the plaintiff entitled to any other relief or reliefs? 7. From the judgment of the trial Court it further transpires that the trial Court considered issue No.6, 7 and 8 as main issues in the suit and after making elaborate discussions on all the three issues simultaneously the trial Court came to the conclusion that the defendants have failed to prove the theory of exchange as propounded by the defendants, hence the finding of the trial Court was that the plaintiff has got subsisting title to the disputed land and he has successfully proved the story of dispossession by the defendants. Accordingly, the trial Court decreed the suit of the plaintiff. 8. Against the said judgment and decree the defendant Jaimangal Sah and Others went to the appeal which was disposed of on 30th July, 1987 by 3rd Additional District Judge, Muzaffarpur. From the perusal of the judgment of the trial Court it appears that the appellate Court formulated only one question for determination which is as follows : "The point for consideration in this case is whether the findings of the learned lower Court that the plaintiff has got subsisting title to the suit land and he was dispossessed from the same on ,29.5.79 as alleged by him are correct or not?" 9. It further transpires that the learned first appellate Court after making full discussion, on the question of title of the respective parties came to the conclusion that the plaintiff has filed to prove his title with respect to the suit land as well as his case of dispossession from the suit land. The learned Court has further held that the story of exchange has been proved by the defendants by circumstantial evidence and that Reshmi Devi was in possession of the suit land before she sold the same to the defendant second party and the defendant second party are bonafide purchaser of the suit land from its original owner. On the basis of the above finding the appellate Court reversed the findings of the trial Court and allowed the appeal filed by the defendant second party. On the basis of the above finding the appellate Court reversed the findings of the trial Court and allowed the appeal filed by the defendant second party. Against the said finding of the appellate Court, the plaintiff has preferred this second appeal. 10. From the perusal of the record of this Second Appeal it appears that at the time of admission of this appeal only one substantial question of law was formulated for decision in the appeal. The substantial question of law as formulated is as follows: "Whether the finding regarding the exchange as alleged by the defendants is erroneous in law?" 11. It has been argued on behalf of the learned Advocate of the appellant that while deciding the question of title of the respective parties the first appellate Court has committed gross error of law by ignoring the statutory presumption of correctness of entries in the record of rights vide Exhibit-9 and 9A and without any documentary evidence the first appellate Court held that defendants have succeeded in proving the theory of exchange. He submitted that since the finding of the first appellate Court is against law as well as against the materials available on record, as such, this Court is empowered to interfere with the findings of the first appellate Court in Second Appeal. 12. It is settled principle of law that under section 100 of the Code of Civil Procedure the power of this Court to interfere with the judgment of the Court below is very limited as this Court is not empowered to re-appreciate the evidence of the parties in Second Appeal. It is also settled principle of law that a Judge of the High Court has no jurisdiction to interfere in Second Appeal with the finding of facts given by the first appellate Court based on proper appreciation of relevant evidence. However, this Court can interfere with the findings of the appellate Court when it is found that the findings of the first appellate Court is perverse or based on no evidence and there is substantial question of law involved in the appeal. In support of my view, I place reliance upon the decision reported in AIR 1963 SC 302 (V. Ramchandra Ayyar and Another Vs. Ramalingam Chettiar and Another) and 2005 (2) BBCJ IV 420 (Monicka Poosali (D) by Lrs. Vs. Anjalai Ammal & Anr.) 13. In support of my view, I place reliance upon the decision reported in AIR 1963 SC 302 (V. Ramchandra Ayyar and Another Vs. Ramalingam Chettiar and Another) and 2005 (2) BBCJ IV 420 (Monicka Poosali (D) by Lrs. Vs. Anjalai Ammal & Anr.) 13. In the case of V. Ramachandra Ayyar and Another Vs. Ramalingam Chattiar and Another) (AIR 1963 SC page 302) following observation has been made by the Hon'ble Apex Court on the provision of Section 100 C.P.C. "If a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in Second Appeal, because a finding of fact which is not supported by an evidence can be questioned under Section 100; and in that connection, it may be said that the decree proceeding on such finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and ,that really amounts to saying that there is no evidence at all.” 14. In 2005(2) BBCJ IV 421 (Monicka Poosali (D) by Lrs. Vs. Anjalai Ammal & Anr.), while making discussion on the scope of Section 100 C.P.C. the Apex Court made following observation: "In second appeal existent of substantial question of law is sine quo non for exercise of jurisdiction and the High Court can not proceed to hear a Second Appeal without formulating the substantial questions of law." The decision further runs as follows: - "This judgment was followed by this Court in Civil Appeal No. 2292 of 1999 Govindaraju Vs. Marriamman (2005) 2 SCC 500 . Marriamman (2005) 2 SCC 500 . In Govindaraju's case (supra) it has been held that the High Court while exercising its power under section 100 of the Code of Civil Procedure on re-appreciation of the evidence can not set aside the findings of the fact recorded by the first appellate Court unless the High Court comes to the conclusion that the finding recorded by the first appellate Court were perverse i.e. based on misreading or evidence or based on no evidence." 15. Thus from the decision cited above, it is clear that this Court while exercising the power under Section 100 of the Code of Civil Procedure is not empowered to set aside the finding of fact recorded by the first appellate Court on re-appreciation of the evidence unless this Court finds that the findings recorded by the learned first appellate Court are perverse i.e. based on misreading of evidence or based on no evidence and that there is substantial question of law involved in this appeal. Therefore, in the following paragraphs I would like to see whether the findings of the first appellate Court regarding the exchange as alleged by the defendants is erroneous in law and the same is perverse and based on non-consideration of evidence of misreading of evidence. 16. It has been argued by the learned Advocate of the appellant that it is admitted case of both the parties that the suit land appertaining to Plot No. 657 of Khata no.12 of Mauza Pakohi Khas P.S. Kanti, Thana No. 325 originally belonged to three brothers, namely, Khublal Dhobi, Shyam Lal Dhobi and Bulaki Dhobi, all sons of Charitar Dhobi. According to the learned Advocate of the appellate, the above fact is also established from the entries in the record of rights i.e. cadastral survey Khatiyan which is Exhibit-9A in the suit. 17. The learned Advocate further submitted that it is also admitted case of both the parties that Mosamat Machhiya Devi was the grand daughter of Khublal Dhobi and it is the case of the plaintiff that on partition amongst three brothers suit plot bearing no. 657 was allotted to the share of Khublal and after the death of Khublal Dhobi, the same was inherited by his son Ratan Dhobi and thereafter it was inherited by Mosamat Machhiya Devi, the only daughter of Ratan Dhobi. 657 was allotted to the share of Khublal and after the death of Khublal Dhobi, the same was inherited by his son Ratan Dhobi and thereafter it was inherited by Mosamat Machhiya Devi, the only daughter of Ratan Dhobi. The learned Advocate of the appellant submitted that in absence of any evidence contrary to the averment of the plaintiff that after the death of Khublal Dhobi the suit property came in possession of Ratan Dhobi and thereafter it came in possession of Mosamat Machhiya, the learned appellate Court should have held that Mosamat Machhiya was the original owner of the suit property who had full right to sell the property. Moreover, there was statutory presumption of correctness of entries in the record of rights (Exhibit-9A) in favour of the ancestor of Mosamat Machhiya. The learned Advocate of the appellant has argued that the learned first appellate Court has committed grave error of law by ignoring the statutory presumption of correctness of entries in the record of rights (exhibit-9A). In support of his argument, the learned Advocate of the appellant has placed reliance upon the decision reported in AIR 1936 Patna 142 (Nitai Lal Dutta Vs. Gobinda Bhushan Sen & ors.), AIR 1965 Calcutta 328 (Jatindra Nath Malik Vs. Sushilendra Nath Palit). In AIR 1936 Patna page 42 it has been held that a record of rights has presumptive evidentiary value and under the law the entries must be presumed to be a correct unless the contrary is proved by evidence whereas in AIR 1865 Calcutta page 328 it has been held that an entry in the record of rights is presumed to be correct until it is proved to be incorrect by evidence. On the basis of above decisions the learned advocate of the appellant argued that as per the entries in Ext. 9/A, C.S. Plot No. 657 appertaining to Khata No. 12 stands recorded in the name of Khublal Dhabi, Shyam Lal Dhabi and Bulaki Dhabi and it has been established that Most. Machhiya was the grand daughter of Khublal Dhabi, as such, on the basis of the said entry in Ext. 9/A the learned 1st appellate Court should have held that the vendor of the plaintiffs, namely, Most. Machhiya was the grand daughter of Khublal Dhabi, as such, on the basis of the said entry in Ext. 9/A the learned 1st appellate Court should have held that the vendor of the plaintiffs, namely, Most. Machhia being sale heir of recorded tenant was the real owner of the property and she had full right to sell the same and the plaintiff is bona fide purchaser of the suit property from its rightful owner. 18. It is true that there is statutory presumption of correctness of entries of record of right but the entries in record of right neither creates any title in favour of any person nor the same extinguishes the right of any party and the presumption of correctness attached to such entries can be displaced by adducing evidence. In this regard, reliance can be placed upon the decision reported in 1974 PLJR page 27 (Nand Kumar Rai and Others Vs. The State of Bihar & Ors.). However, so far this suit is concerned there is no dispute between the parties that Khublal Dhobi, Shyam Lal Dhobi and Bulaki Dhobi were not the recorded tenants of plot no. 657 appertaining to Khata No. 12 i.e., suit plot and, therefore, the correctness of entries in the record of rights (Ext. 9/A) in favour of ancestor of Mostt. Machhiya is not under challenge. What is under challenge is that Most. Machhiya never inherited the suit property as the recorded tenants had already exchanged the suit plot i.e. S.P. No. 657 with 20 decimals land of S.P. No. 671 belonging to grand-father of defendant 1st Party, namely, Banshi Dhabi. Therefore, the theory of exchange was a very vital point for consideration in the suit and it appears that both the courts below have elaborately dealt with this point in their judgments. Therefore, the theory of exchange was a very vital point for consideration in the suit and it appears that both the courts below have elaborately dealt with this point in their judgments. According to the 1st appellate Court there is neither any documentary evidence nor any reliable oral evidence on record to come to the conclusion that on partition between the three brothers, namely, Khublal Dhabi, Shyam Lal Dhabi and Bulaki Dhabi, the suit plot fell in the share of Khublal Dhabi and thereafter it was inherited by his son Ratan Dhabi and then the same was inherited by the only daughter of Ratan Dhabi, namely, Mosamat Machhiya and, so, on the basis of entries in the record of rights (Exhibit-9A), it was not possible to hold that the suit land actually fell in the share of Khublal Dhabi on partition and then it was inherited by Ratan and then it was inherited by Mosamat Machhiya. I am of the view that the view taken by 1st Appellate Court is correct and in absence of any other documentary evidence it can not be held that after the death of the recorded tenant Most. Machhiya inherited the suit property. 19. It has been argued by the learned Advocate of the appellate that after the purchase of suit land from Mosamat Machhiya by the plaintiff through registered sale deed dated 15.12.54 (Exhibit-1) the name of the plaintiff was mutated in the Anchal Office and Parcha was also issued in his name. He submitted that the plaintiff has produced the rent receipt granted by the Anchal Office with respect to the suit land as well as the Parcha issued in his name which are on record. He submitted that this document establishes beyond doubt that after the purchase of the suit land the plaintiff came in possession of the suit land but the learned first appellate Court did not place reliance on those documents and wrongly held that the plaintiff has failed to prove the story of possession of dispossession. It appears that on behalf of the plaintiff Parcha has been brought on record which was been marked Exhibit-2 but there is nothing to show that this Parcha was issued in respect of the suit property. It appears that on behalf of the plaintiff Parcha has been brought on record which was been marked Exhibit-2 but there is nothing to show that this Parcha was issued in respect of the suit property. From para 26 of the deposition of the plaintiff, who was examined as P.W. 6 in the suit, it appears that in the said para the plaintiff has categorically stated that in revisional survey, Parcha was not issued in his name with respect to plot No. 657 (suit land). Thus, the evidence of the plaintiff at para 26 establishes beyond doubt that Parcha (Exhibit-2) is not related to suit plot no 657. Likewise, the two rent receipts which have been brought on record which have been marked as Exhibit-3 and 3A do not show that these rent receipts are in any way connected with the suit plot, rather, it appears that the right corner of both the receipts were intentionally removed in order to conceal the fact that these two rent receipts were issued with respect to some other plots. My view finds support due to the fact that suit plot no. 657 comprises an area of only 17 decimals, whereas, the tent receipts have been produced of an area of 25 decimals. Generally, on the right corner of the rent receipts Khata and Khesra are mentioned but in both the receipts the right corner have been removed. I am of the view that it has been done intentionally in order to conceal the fact that these two rent receipts were issued for different lands. 20. Thus, I find that there is absolutely no documentary evidence on record to establish that after the death of recorded tenant the suit property was inherited by Mosamat Machhiya except the sale deed of the plaintiff (Exhibit-1). There is specific case of the defendants that immediately after the cadestral survey the ancestor of the defendant 1st party Banshi Dhabi exchanged the suit plot with 20 decimals land of S.P. No. 671 belonging to Banshi Dhabi and since the date of exchange Banshi Dhabi came in possession of Plot no. 657, whereas, recorded tenant of Plot No. 657, namely, Khublal Dhabi, Shyamlal Dhabi and Bulaki Dhabi came in possession of 20 decimals of land of plot no. 671 belonging to Banshi Dhabi. 657, whereas, recorded tenant of Plot No. 657, namely, Khublal Dhabi, Shyamlal Dhabi and Bulaki Dhabi came in possession of 20 decimals of land of plot no. 671 belonging to Banshi Dhabi. I find that this story of exchange finds full support from the documentary as well as oral evidence. 21. It is the specific case of the defendants that after exchange and on partition amongst the recorded tenant of Khata no. 12, namely, Khublal Dhabi, Shyam Lal Dhabi and Bulaki Dhabi, portion of C.S. Plot no. 671 acquired through exchange was allotted to the share of Muni Lal Dhabi and the same was recorded in the revisional survey in the name of Fadeni Dhabi and Chandeshwar Dhabi sons of Main Dhobi, adopted son of Muni Lal Dhobi. Further case of the defendants is that lands of C.S. Plot No. 671 given in exchange to Khublal Dhobi and Others were acquired by the State Govt. for Gandhak Project Colony and the compensation for the land was paid by the Govt. to Fudeni Dhobi and Chandeshwar Dhobi. This averment of defendants finds corroboration from documentary evidence. Exhibit-F is the notification of the Land Acquisition Officer, Muzaffarpur, for acquisition of land of plot no. 671 for the Gandak Project. Exhibit-F shows that 21 decimals of land of C.S. Plot No. 671 which was acquired by the State Govt. was in possession of Fudeni Dhabi son of Main Dhabi. Exhibit-G is the certified copy of entires regarding the payment of compensation of the land acquired by the State Govt. This Exhibit-G shows that Award for 21 decimals land of C.S. Plot no. 671 was prepared in the name of Fudeni Baitha and for the rest 10 decimals of the land of plot No. 671 award was prepared in the name of Dukhiya Devi wife of Ramashish Baitha. It has been admitted by the plaintiff in his evidence that Muni Lal Baitha was the son of Shyam Lal Dhabi, own brother of Khublal Dhobi, He has also admitted this fact that Fuderi Baitha was the great grand son of Shyam Lal-Dhobi. Thus, from the oral evidence of the plaintiff (PW 6 at para 13) and from the above documentary evidence it is established that plot no. 671 originally belonged to Banshi Dhobi (Baitha), ancestor of defendant no. Thus, from the oral evidence of the plaintiff (PW 6 at para 13) and from the above documentary evidence it is established that plot no. 671 originally belonged to Banshi Dhobi (Baitha), ancestor of defendant no. 1 but after exchange 20 decimals of the said plot came in possession of the ancestor of Mosamat Machhiya that is why compensation of 21 decimals of the land on the said plot was paid to Fudeni Baitha (payment of compensation for 1 decimal excess land can be overlooked), whereas, remaining compensation of 10 decimals of the said plot was paid to Dukhiya Devi, the grand daughter of Banshi Dhabi (Baitha). Thus, Exhibit-G establishes beyond doubt that the lands of C.S. plot no. 671 belonging to the ancestor of defendant no. 1 was given in exchange to Khublal Dhobi, Shyam Lal Dhobi and Bulaki Dhabi, ancestors of Mosamat Machhiya. 22. There is specific case of the defendants that in the revisional survey the Raiyati Parcha and Khatiyan were also prepared in the name of the defendants. Raiyati Parcha has been marked as Exhibit-C. This Exhibit-C further shows that revisional survey plot no. 2107 was carved out from C.S. Plot No. 657, 658, 656 and 668. It is admitted position that plot No. 658, 656 and 668 belong to defendants and the inclusion of plot no. 657 in the new survey plot no. 2107 along with C.S. plot no. 658, 656 and 668 establishes beyond doubt that during revisional survey land of C.S. plot no. 657 (suit land) was found amalgamated with the other lands of the defendants. This fact goes to prove that the plaintiff or his vendor were not in possession of the suit plot. It is admitted position that the plaintiff had purchased the suit plot in the year 1954 and the final publication of revisional survey was made in the year 1971. The plaintiff has admitted in his evidence that he has not raised any objection regarding the illegal possession of the defendants with respect to the suit plot at any' stage of the revisional survey. This goes to show that the plaintiff was never in possession of the suit plot at the time of revisional survey and the learned first appellate Court has rightly held that raising no objection by the plaintiff during survey operation was an unnatural conduct of the plaintiff. 23. This goes to show that the plaintiff was never in possession of the suit plot at the time of revisional survey and the learned first appellate Court has rightly held that raising no objection by the plaintiff during survey operation was an unnatural conduct of the plaintiff. 23. There is specific case of the defendants that Banshi Dhabi, who was also called Banshi Bhagat, was cremated on the suit plot and his tomb exists there. The defendants have examined several witnesses on this point and the first appellate Court has elaborately made discussion on the evidence of the defendants in this regard. Moreover, the scrutiny of the evidence of the plaintiff's witnesses also shows that several witnesses of the plaintiff have admitted that the tomb of Banshi Bhagat exists over plot no. 657 which proves the theory of exchange of plot no. 657 from plot no. 671 of Banshi Baitha. It also proves the possession of the defendants over the suit plot. 24. Thus, from the discussions made above it is established beyond doubt that the finding of the first appellate Court regarding the story of exchange as propounded by the defendants is correct and cannot be said to be perverse or erroneous in law and, as such. There is no necessity to interfere with the findings of the 1st appellate Court. Accordingly, the substantial question of law is answered and decided against the appellant. 25. In the result, I do not find any merit in this second appeal and, as such, the same is hereby dismissed. The judgment and decree of the 1st Appellate Court dismissing the suit of the plaintiff are confirmed. However, there will be no order for costs.