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2007 DIGILAW 468 (UTT)

Chintamani and another v. Mohan Singh

2007-08-29

B.S.VERMA

body2007
Judgment This Second Appeal is directed against the judgment and decree dated 9-81982 passed by the I Additional District Judge, Nainital in Civil Appeal No. 159 of 1980, Mohan Singh and another Vs. Chintamani and others. By the impugned judgment and decree, the first appellant court has partly allowed the appeal preferred by the defendant nos. 1 and 2 against the judgment and decree dated 25-9-1980 passed in Original Suit NO.7 of 1980 by the trial court. 2. The following substantial questions of law are involved in this appeal : 1. Whether the finding of the lower appellate Court that the defendants nos. 1 and Z had not changed the course of the rivulet as alleged by the plaintiffs is based on no evidence and has rather been arrived at without consideration of the relevant evidence on the record. 2. Whether the abolition of the rights of use of water by Section 3 of the Kumaun and Garhwal Water (Collection, Retention and Distribution) Act 1975 had the effect of disentitling the plaintiffs' relief against the defendants nos. 1 and 2, who had, according to their case, diverted the water course of the rivulet (by a wrongful act on their part) ? 3. Whether the finding of the lower appellate Court that the plaintiffs were not entitled to the rights of Rasta, Gochar, Panghat, Batia in plot no. 272 is vitiated in law? 3. Brief facts of the case are that the plaintiffs Chintamani and Shyam Ban filed a suit for mandatory and prohibitory injunction against the defendants Mohan Singh and Puran Singh directing them to restore the rivulet (water channel) flowing from plot no. 295 to plot no. 272 of village Bajoon to its natural and original condition. The defendants were also sought to be directed by mandatory injunction to restore the Batia, Panghat, Gauchar and Rasta existing in plot no. 272 to its original condition. Plaintiffs have also prayed for further mandatory injunction against the defendants directing them to construct a wall below plot no. 273 of the plaintiff no. 1 to prevent its fall which had become imminent because of the hill cutting and digging done by them below the said plot no. 273 in plot no. 272. The plaintiffs by way of prohibitory injunction also prayed that defendants be restrained not to damage the plot nos. 272 and 274 of the plaintiff no. 1 and plot nos. 1 to prevent its fall which had become imminent because of the hill cutting and digging done by them below the said plot no. 273 in plot no. 272. The plaintiffs by way of prohibitory injunction also prayed that defendants be restrained not to damage the plot nos. 272 and 274 of the plaintiff no. 1 and plot nos. 340, 341, 343, 344 and 339 of the plaintiff no. 2. They were also sought to be restrained from interfering in the use of the Batia, Rasta, Panghat and Gauchar of the plaintiffs existing in plot no. 272. It was alleged that the plaintiff no. 1 had purchased plot nos. 272A, 273, 274,275, 276 and 277 from Kharak Singh and he was the owner in possession of the same. The plaintiff no. 2 was in possession as Bhumidhar of plot nos. 339, 340, 341, 342, 343 and 344 apart from his certain other land. A rivulet used to flow at a distance of 30 feet from plot nos. 338 and 339 in a natural way. A few days before the filing of the suit, defendants changed the-course of the said rivulet and as a result its flow was turned towards plots no. 340 and 341 of the plaintiff no. 2 which were at a lower level. By such diversion of the rivulet or the water chanl1el, Rasta, Batia, Panghat and Gauchar existing in plot no. 272 got blocked. The plaintiffs had an easementary right to use the said Rasta, Panghat an Gauchar existing as aforesaid, as they were in their use for the last more than 50 years. Besides, the defendants also resorted to hill cutting and digging under plot no. 273 and as a result of an imminent danger had arisen of the fall of the plots of the plaintiff no. 1. With these allegations the suit was filed. 4. The defendant nos. 1 and 2 resisted the suit and filed their written statement. They denied that the plaintiffs were the owners in possession of the plots detailed in the plaint. According to them, plot nos. 295 and 272 were in possession of the defendants from long before and the plaintiffs had no concern therewith. They denied that the plaintiffs had acquired any easementary right as alleged by them. They denied to have diverted the course of natural rivulet. According to them, they had their filed (sic) in plot no. According to them, plot nos. 295 and 272 were in possession of the defendants from long before and the plaintiffs had no concern therewith. They denied that the plaintiffs had acquired any easementary right as alleged by them. They denied to have diverted the course of natural rivulet. According to them, they had their filed (sic) in plot no. 272 and they had effected some improvement therein. They also claimed that they had only constructed a wall to safeguard their fields from erosion by the flowing water of the rivulet. It was asserted that the suit is bad for non-joinder of the State. 5. By the order of the trial court, the State of U.P. was impleaded as defendant no. 3. It filed its written statement and contended that the suit is bad for want of valid notice under Section 80 C.P.C. It was asserted that the plot nos. 272 Band 295 A were owned by the State and as such no relief could be granted against the State. 6. The learned trial court framed necessary issues, recorded the evidence of parties, heard them after perusing the evidence came to the conclusion that the defendants nO.1 and 2 had changed the course of the rivulet illegally. Accordingly, the learned trial court granted the relief to the plaintiffs against the defendants of the mandatory injunction directing them to restore the rivulet to its original condition as shown in the plaint map. He also held that the defendant nos. 1 and 2 had done hill cutting and digging under plot No. 273 owned by the plaintiff no. 1, which had occasioned to the danger of land slides and fall of plot no. 273 of the plaintiff no. 1. Therefore, the trial court granted this relief of mandatory injunction also against the defendants nos. 1 and 2 they would construct a wall under plot no. 272 so as to prevent the fall of the said plot. Mandatory injunctiol1..,was also granted to the plaintiffs against the defendants and the defendants were directed to restore the public Gauchar to its original condition. Prohibitory injunction was also granted restraining the defendants from interfering in plaintiffs' use of Gauchar existing in plot no. 272B. Rest of the reliefs prayed for by the plaintiffs were refused. The suit was accordingly decreed by the trial court by its judgment and decree dated 25-9-1980. 7. Prohibitory injunction was also granted restraining the defendants from interfering in plaintiffs' use of Gauchar existing in plot no. 272B. Rest of the reliefs prayed for by the plaintiffs were refused. The suit was accordingly decreed by the trial court by its judgment and decree dated 25-9-1980. 7. Aggrieved by the said judgment and decree, the defendants no. 1 and 2 preferred Civil Appeal No. 159 of 1980, while the State preferred Civil Appeal No. 164 of 1980 before the I Additional District Judge, Nainital. The plaintiffs filed cross-objections. 8. The learned first appellate court formulated the following five points for determination in the appeal :1. Whether the defendant no. 1 and 2 had done hill cutting and digging beneath plot no. 273 owned by the plaintiff no. 1 ? If so, its effect? 2. Whether the defendants no. 1 and 2 had changed the course of the rivulet flowing from plot no. 295 to plot No. 272 ? If so, its effect? 3. Whether the plaintiffs had any easementary right in respect of the Batia, Panghat, Rasta and Gauchar allegedly existing in plot no. 272 ? If so, its effect? 4. Whether the plaintiffs were entitled to any relief as against the defendant no. 3 (State of U.P.) which has filed civil appeal no. 164 of 1980 ? 5. To what relief, if any, were the plaintiffs entitled in the whole and against whom of the defendants? 9. The learned first appellate court after hearing both the parties has come to the conclusion that the defendant nos. 1 and 2 had done unauthorized and illegal act by resorting to digging under plot no. 273 of the plaintiff no. 1 and there was imminent danger of damage and fall of plot no. 273. It was held that the plaintiff no. 1 was entitled to mandatory injunction against the defendants no. 1 and 2 directing them to construct a wall under plot no. 273 which place had been dug by them and made hollow. The appellate court upheld the relief granted by the trial court on that count. 10. The learned first appellate court did not agree with the trial court's finding that the defendants were liable to restore the flow of the rivulet to its original condition. 273 which place had been dug by them and made hollow. The appellate court upheld the relief granted by the trial court on that count. 10. The learned first appellate court did not agree with the trial court's finding that the defendants were liable to restore the flow of the rivulet to its original condition. The first appellate Court has given a categorical finding that the plaintiffs failed to produce any independent witness who could depose that the defendant nos. 1 and 2 had changed the course of the rivulet or had diverted its direction, rather on appraisal of the oral testimony of the witnesses produced by the parties, the learned Appellate Court came to the conclusion that only a cemented wall had been constructed by the defendant no. 1 Mohan Singh (D .W.1 ) to save the erosion of his land by the flow of the water of rivulet. It was held that no cause of action could arise to the plaintiffs against the defendants simply because the latter had constructed a wall to prevent the erosion of their land by the flow of the water of the rivulet. The learned first appellate court found that no relief could be granted in favour of the plaintiffs on that score in view of the provision of Section 3 of the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act, 1975, the plaintiffs have ceased to have any right in the flow or course of the said rivulet and only the State could seek any relief against the defendants and not the plaintiffs, even if it may be taken for the sake of argument that the defendants no. 1 and 2 had diverted the flow of rivulet in any manner. 11. The learned first appellate court has observed that the plaintiffs were riot entitled to easementary right of user of Rasta, Batia, Gauchar and Panghat existing in plot no. 272 because the plot no. 272 is divided in two parts. Plot No. 272A has been purchased by the plaintiff no. 1 from Kharak Singh, while plot no. 272B, recorded as Banjar in Khatauni, in which the said things are said to exist belongs to the State. It was obs9rved that the plaintiffs could not lead any documentary evidence to show that Batia, Rasta, Gauchar and Panghat existed in plot no. Plot No. 272A has been purchased by the plaintiff no. 1 from Kharak Singh, while plot no. 272B, recorded as Banjar in Khatauni, in which the said things are said to exist belongs to the State. It was obs9rved that the plaintiffs could not lead any documentary evidence to show that Batia, Rasta, Gauchar and Panghat existed in plot no. 272B and independent witness has been produced by the plaintiffs to depose that a1\ these things existed in the said plot no. 272B. The learned first appellate Court has disbelieved the contention of the plaintiffs that they had prescriptive easementary right of user of Pang hat, Gauchar, Rasta and Batia allegedly existing in plot No. 272. 12. Learned first appellate court also held that the plaintiffs neither filed the suit against the State nor claimed any relief against the State. The suit could not have been decreed against the State. It was ultimately held that the suit of the plaintiffs was liable to be decreed only to the relief of mandatory injunction against defendant nos. 1 and 2 directing them to construct a wall under plot no. 273 owned by the plaintiff no. 1 so as to prevent its fall and no other relief could be granted in favour of the plaintiffs. With these findings, the appeal preferred by the defendant nos. 1 and 2 was partly allowed, while the appeal preferred by the State was allowed and the suit of the plaintiffs was dismissed against the State. 13. Aggrieved by the judgment and decree, dated 9-8-1982 passed by the first appellate court, the plaintiff-appellants have preferred the present second appeal. Question Nos. 1 and 2 : 14. Both these substantial questions of law are interconnected, therefore, for the sake of convenience they are being taken up together for decision. 15. It is pertinent to mention that it is the settled law that in view of the' scope of Section 100 of the Code of Civil Procedure, High Court in law cannot interfere with pure findings of facts arrived at by the Courts below. I stand fortified by the Apex Court judgment in the case of Gurdev Kaur and others Vs. Kaki and others [(2006) SCCR 646J, wherein the Apex Court has held in paragraph 81 as under:"81. I stand fortified by the Apex Court judgment in the case of Gurdev Kaur and others Vs. Kaki and others [(2006) SCCR 646J, wherein the Apex Court has held in paragraph 81 as under:"81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC. in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 C. P. C. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention." 16. The Apex Court in paragraph 82 has held that ''in view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the Courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs." 17. In the premises of the above judgment of the Apex Court, the present appeal shall be considered. 18. At the outset, it may be mentioned that first substantial question of law relates• to the finding on the dispute of changing the course of rivulet by the defendants and evidence of the parties thereon, therefore, a reference to the evidence of witnesses is relevant to be made. The learned trial court had framed issue no. 6 as under : 6. Whether due to the change of the course of rivulet by the defendants is the plaintiff no. 2 suffering any loss or may suffer any loss to his land? 19. Before the trial court, the plaintiffs have examined P.W.1 Chintamani and P.W.2 Shyam Ban, while from the side of the defendants Mohan Singh D.W. 1, Ram Datt DW.2 and D.W.3 Khushal Singh have been examined. The trial court at pages 12 and 13 of its judgment has dealt with the issue no. 6. 19. Before the trial court, the plaintiffs have examined P.W.1 Chintamani and P.W.2 Shyam Ban, while from the side of the defendants Mohan Singh D.W. 1, Ram Datt DW.2 and D.W.3 Khushal Singh have been examined. The trial court at pages 12 and 13 of its judgment has dealt with the issue no. 6. Learned trial court has observed that all the three witnesses of the defendants have stated in their statements that the defendants have not changed the course of rivulet rather in order to save their land from erosion, they have constructed cemented wall by the side of plot nos. 338 and 337. The trial court has just mentioned that the testimony of D.W.2 and D.W.3 cannot be relied only because from the cross-examination of these witnesses it is evident that D.W. 2 Ram Datt is a liar while D.W.3 Khushal Singh happens to be the maternal uncle of Mohan Singh (defendant no. 1). I have perused the cross-examination of D.W. 3 Khushal Singh, who has admitted that Mohan Singh happens to be a maternal uncle by relation. He is not real maternal uncle of the defendant Mohan Singh. The trial court has discarded the entire testimony of D.W. 3 only for the reason that he happened to be maternal uncle of the defendant Mohan Singh. 20. The contention of the learned counsel for the appellants is that the finding of the lower appellate court is not based on evidence that the defendant nos. 1 and 2 had not changed the course of the rivulet as alleged by the plaintiffs. '. 21. I have perused the impugned judgment. It is not disputed that the defendant Mohan Singh got constructed a cemented wall to save erosion of his land by the flow of the water of rivulet. The appellate court has observed that the plaintiffs have not produced any independent witness of the village who could have come to say that actually the course of the rivulet had been changed or diverted or turned by the defendants no. 1 and 2. The lower appellate court has dealt with the evidence of both the parties. It is not disputed that the land of defendant Mohan Singh lies first from the side of flow of rivulet. 1 and 2. The lower appellate court has dealt with the evidence of both the parties. It is not disputed that the land of defendant Mohan Singh lies first from the side of flow of rivulet. The learned first appellate court has observed as under on the issue : "Moreover, on the scrutiny of the evidence that has been produced on record, it is clearly deducible that the defendants had only built a wall at the bank of their plots to guard against the flow of rivulet. It came to be admitted by the plaintiff no. 1 Chintamani (P. W 1) that Mohan Singh (defendant no. 1), in order to save his land, had constructed a cemented wall at the bank of his land and had done barbed wiring. He stated so in para no. 4 of his statement. The plaintiff no. 2 Shyam Ban had also to admit in his cross-examination that the defendants had constructed cemented wall to save their land and had also placed four girders for that purpose. Such admissions of both the plaintiffs support the testimony of the defendant no. 1 Mohan Singh (D. W 1) that to save erosion of his land by the low of the water of the rivulet, he had constructed a wall by the side of his plot no. 337 and 338. " 22. In view of the above, it cannot be said that the finding of the first appellate court is based on no evidence. 23. Learned counsel for the appellants herein has contended that it was the duty of the first appellate court to have recorded its finding after dealing with all evidence, issues of law and fact and must give reasons while allowing the appeal, but it has not been done in the case at hand. Learned counsel has placed reliance upon the Apex Court verdict in the case of Madhukar and others Vs. Sangram and others [2001 (II) A. C.J. Page 1125 (Supreme Court)], wherein it was held that "sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner." The Apex Court in that case has relied upon the judgment of "Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 S.C.C. Page 179] wherein it was observed as under : "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 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, ..... .while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assigned 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." 24. The ratio of the judgment cannot be disputed. But the facts of the case before the Apex Court are quite distinct. In that case, the two questions formulated for determination by the High Court did not cover the entire controversy and evidence led by the parties. Similar view has been taken by the Allahabad High Court in the case of Mahendra Singh Vs. Nirangan Singh [1997(Suppl.) Civil Court Cases, 181 (Allahabad)]. In the instant case, as detailed earlier, the learned first appellate court has framed as many as five points which covered the entire field of dispute between the parties. The first appellate court has dealt with the entire evidence led by the parties both oral and documentary and ultimately upheld the finding of the trial court holding that the plaintiff nO.1 was, therefore, clearly, entitled to a mandatory injunction against the defendants no. 1 and 2 directing them to construct a wall under his plot no. 273 which place had been dug by them and made hollow. 1 and 2 directing them to construct a wall under his plot no. 273 which place had been dug by them and made hollow. This relief has rightly been granted by the Munsif and there is no scope of any interference by this Court of appeal. 25. It is significant to mention that the first appellate Court while recording its finding has clearly assigned its reasons for disagreeing with the finding of the trial court. It may be noted that on point no. 2 which was framed as "Whether the defendants no. 1 and 2 had changed the course of the rivulet flowing from plot no. 295 to plot No. 272 ? If so, its effect?, the first appellate Court has considered the entire evidence of the parties and then disagreed with the findings of the trial court on rest of the reliefs granted in favour of the plaintiffs-appellants. 26. Learned counsel for the appellants herein further contended that the approach of the first appellate court in disbelieving the testimony of plaintiffs' witnesses was not just and proper and is against the provisions of section 120 of the Evidence Act by holding that the plaintiffs could not produce any independent witness to substantiate their contention. The learned counsel has urged that the plaintiffs themselves were competent witnesses to prove their case. The contention of the learned counsel is not acceptable. Admittedly, the plaintiffs have examined plaintiff no. 1 Chintamani as PW.1 and plaintiff No.2 Shyam Ban as P.W.2. The lower appellate court has dealt with the testimony of both these witnesses. The first appellate Court has not held that these witnesses are not competent, rather it was observed that the plaintiffs did not produce any independent witness of the village who could have come to say that actually the course of the rivulet had been changed, diverted or turned by the defendant nos. 1 and 2. There is nothing wrong in it, because if a fact is required to be proved only by oral evidence and the parties are likely to procure independent witnesses easily on that point, then these should be corroboration of fact by independent witness. Both the plaintiffs are naturally interested parties. 27. 1 and 2. There is nothing wrong in it, because if a fact is required to be proved only by oral evidence and the parties are likely to procure independent witnesses easily on that point, then these should be corroboration of fact by independent witness. Both the plaintiffs are naturally interested parties. 27. Learned counsel for the appellants further contended that the approach of lower appellate court was not proper in disturbing the finding of the trial court which had the advantage of seeing the witnesses and noticing their look and manner. His contention is that the trial court had reached its conclusions on the credibility of the witnesses. Learned counsel has relied upon the Apex Court judgment of M.S. Jagadambal Vs. Southern Indian Education [1997, AII.C.J., Page 318 (Supreme Court)] and Madhusudan Das Vs, Smt. Narayani Sai and others [AIR 1983, Supreme Court, Page 114]. The ratio of the judgments cannot be disputed. In the case at hand, the learned first appellate court has not entirely reversed the finding of the trial court, rather the appeal was partly allowed. Moreover, as indicated earlier, the defendants have examined two other witnesses. Out of them the testimony of D.W.3 Khushal Singh who happened to be a distant maternal uncle was ignored by the trial court merely on the ground that he is maternal uncle of the defendants. The learned appellate court has rightly assessed the credibility of the witnesses produced by the parties. 28. There is yet another aspect of the case. The Kumaon and Garhwal Water (Collection, Retention and Distribution) Act, 1975 cane into force from 15-7-1975 and by virtue of Section 3 of the said Act, all the existing rights whether customary or otherwise and whether vested in any individual or in village communities, of use of water, if any, in the area stood abolished. Section 4 of the said Act provides the power of the State Government to regulate and control water and water resources. Therefore, from 15th July 1975, the plaintiffs ceased to have any right in the flow or course of the rivulet. The learned first appellate Court has rightly held that the plaintiffs could not have claimed any relief directing the defendants to restore it to its original condition. Therefore, from 15th July 1975, the plaintiffs ceased to have any right in the flow or course of the rivulet. The learned first appellate Court has rightly held that the plaintiffs could not have claimed any relief directing the defendants to restore it to its original condition. I am of the considered view that it could be the State Government which could seek relief against the plaintiffs even if it may be taken that the defendants had changed the course of the flow of the rivulet. The claim of the plaintiffs on that count has been rightly thrown out. The trial court has not at all considered the legal position in the matter. 29. Accordingly, the Question No.1 is answered in negative against the appellants. The learned lower appellate court has considered the evidence properly to arrive at the conclusion that the defendant nos. 1 and 2 had not changed the course of the rivulet. Question no. 2 is answered in negative in the manner that by virtue of Section 3 of the Kumaun and Garhwal Water (Collection, Retention and Distribution) Act, 1975, the plaintiffs ceased to have any right in the course of the rivulet. The finding that the defendant nos. 1 and 2 had not changed the course of rivulet is a pure finding of fact, which cannot be interfered with by the High Court. Substantial Question NO.3: 30. The plaintiffs have claimed their right of Rasta, Batia, Gauchar and Panghat existing in plot no. 272. The learned trial court has held that there existed Rasta, Batia, Gauchar and Panghat in Banjar portion of the plot no. 272, but the trial court has not made any reference to the revenue records on record and merely on the assertions made by the plaintiffs, the trial court has recorded the finding that Rasta, Batia, Gauchar and Panghat existed on plot no. 272. The learned lower Court has examined the Khatuni (Ext. B2) on record and found that the plot no. 272 is divided in two parts - Plot No. 272A and Plot No. 272B and it was found that plaintiffs failed to file revenue papers in this regard. The learned lower appellate court has rightly observed that the plaintiffs have not produced any independent witness to state that in fact Rasta, Batia, Gauchar and Panghat existed in plot no. 272. 272 is divided in two parts - Plot No. 272A and Plot No. 272B and it was found that plaintiffs failed to file revenue papers in this regard. The learned lower appellate court has rightly observed that the plaintiffs have not produced any independent witness to state that in fact Rasta, Batia, Gauchar and Panghat existed in plot no. 272. It was for the plaintiffs to have established that all these things did exist in plot no, 272. Relief of easementary rights could not have been granted on the basis of presumption that there existed Rasta, Batia, Gauchar and Panghat in plot no. 272. Plot No. 272 B is recorded as Banjar and the same is owned by the State. It was ultimately held that the plaintiffs had miserably failed to establish the existence of any prescriptive easementary right in their favour in respect of plot no. 272B. It was held by the learned first appellate Court that existence of Rasta, Batia, Gauchar and Panghat on the spot were not proved at all. It is pertinent to mention that the plaintiffs have also failed to establish how and when they perfected the easementary rights. 31. Learned counsel for the appellants has further contended that the defendants have not specifically denied the plaint allegations, hence it will be taken to be admitted. In support of his contention, he has relied upon the Division Bench judgment of the Allahabad High Court in the case of Someshwar Nath Bhargava Vs. Smt. Kusum Kumari [1993, Civil Court Cases, 18 (Allahabad)]. I am in full agreement with the view taken by the Division Bench, but the facts of the case at hand are quite distinct. The plaintiffs have utterly failed to establish that there existed Rasta, Batia, Gauchar and Panghat in plot no. 272 and that the State was the owner of Banjar land of plot no. 272B. Hence the claim of the plaintiffs on that count was rightly refused by the first appellate court. The existence of Rasta, Batia, Gauchar and Panghat must have place in the revenue records (Khasra) but the documentary evidence was lacking to support the plaintiffs. Moreover, plaintiffs have not produced any independent witness of the village to substantiate the easementary rights of Rasta, Batia, Gauchar and Panghat did exist in plot no. 272. The existence of Rasta, Batia, Gauchar and Panghat must have place in the revenue records (Khasra) but the documentary evidence was lacking to support the plaintiffs. Moreover, plaintiffs have not produced any independent witness of the village to substantiate the easementary rights of Rasta, Batia, Gauchar and Panghat did exist in plot no. 272. The contention of the learned counsel for the appellants cannot be accepted for the simple reason that the plot no. 272B recorded as Banjarbelongs to the State and the State has specifically stated that there exists no entry of any Rasta in the settlement map. State has specifically denied that the plaintiffs can claim any right in respect of plot no. 272 and plot no. 295 belonging to the State. It cannot be said to be admissions made by the State. The case law is not applicable. 32. The contention of the learned counsel for the appellants that the evidence of the plaintiff-appellants has been rejected on flimsy grounds is not acceptable. Learned counsel for the appellants has relied upon the case of Major Singh Vs. Rattan Singh (Dead) by L.Rs. and others [AIR 1997 Supreme Court, 1906]. I am in respectful agreement with the view taken by the Apex Court, but the facts of the case before the Apex Court are distinguishable. 33. It has been also argued by the learned counsel for the appellants that the finding of lower appellate court is based on misreading of evidence and on conjectures, therefore, such finding can be set aside in Second Appeal. He has made a reference to the case of Vishwa Nath and others Vs. Ramraj and others [AIR 1991 Allahabad 193]. The ratio of the judgment cannot be disputed, but as already discussed earlier, the findings of the first appellate court are fully based on proper appraisal of evidence and on proper application of law. 34. Learned counsel for the appellants has vehemently argued that the High Court can interfere with the concurrent findings of fact while exercising jurisdiction under Section . 100. He has relied upon the case of Ramlal and another Vs. Phugua and others [(2006) 1 SCC, 168], wherein the Apex Court has held that when the finding of fact is manifestly unreasonable and unjust in the context of evidence on record. The case-law is not applicable to the facts of the case at hand. 100. He has relied upon the case of Ramlal and another Vs. Phugua and others [(2006) 1 SCC, 168], wherein the Apex Court has held that when the finding of fact is manifestly unreasonable and unjust in the context of evidence on record. The case-law is not applicable to the facts of the case at hand. It has already been observed that the finding of fact recorded by the first appellate Court is fully based on proper appreciation of evidence on record. It may be mentioned that in the case at hand, the learned first appellate court has not overlooked any important piece of evidence in the nature of an admission by defendants. According to the learned counsel, there was an admission of the defendants that there existed Rasta, Batia, Panghat and Gauchar in plot no. 272. The State has clearly denied the plaint allegations. Moreover, there was no entry in the revenue record to that effect. The ratio of the Apex Court verdict in the case of Deva (Dead) Through LRS. Vs. Sajjan Kumar (Dead) by LRS. [(2003) 7 S.C.C. 481J is not disputed, but this case-law does not help the appellants. 35. Lastly, the learned counsel for the appellants has made a reference to the judgment of the Apex Court in the case of Viswanatha Achari Vs. Kanakasabapathy [2005 (2) SCD 1036] and submitted that Lower Appellate Court has no jurisdiction to decide issue not framed by Trial Court. In the case before the Apex Court, issue of adverse possessionwas not framed by the trial court, but the first appellate court has recorded a finding on that issue. But in the case at hand, there is no such case. The case law does not help the appellants. 36. Question No.3 is answered accordingly against the appellants. 37. In view of the reasons and discussion abovementioned there is no merit in the Second Appeal which deserves to be dismissed. 38. The second appeal is hereby dismissed. No order as to costs.