JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri S.A. Shah, learned Counsel for the appellants. 2. An amendment application has been filed on behalf of the appellants raising five substantial questions of law. The amendment application is allowed. Substantial questions of law framed in the amendment application are part of memorandum of appeal. 3. This is plaintiffs second appeal arising out of the judgment and decree dated 23.10.1990 passed by the Civil Judge, Etah, in civil appeal No. 23 of 1983 confirming the judgment and decree dated 2.11.1982 of the trial Court passed in original suit No. 330 of 1974. 4. Learned Counsel for the appellants has filed additional substantial questions of law that he intends to argue while challenging the two judgments of the Courts below. The suit was instituted for permanent injunction against the defendant/respondent in respect of the plot No. 673-A/2-84 and 673-B/3-10 situated in Mauza Kalyanpur, Pargana Bilgram, District Etah, alleging that the defendant is trying to take possession of the plot in question, in which the plaintiffs are in occupation as owner. 5. The defendant filed written statement disputing the claim of the plaintiffs and so that they have no right over the disputed property. They are not in possession. The plaintiffs claimed that the plaintiff No. 1 is of unsound mind and he is not able to understand, therefore, the plaintiff No. 2, brother of the plaintiff No. 1 is representing him in the suit. The defendant claimed that they have been using the land in question. 6. A number of issues were framed. However, relevant issues are : “Issue No. 1, “whether the plaintiffs are the owner in possession? and Issue No. 6, “whether the plaintiff No. 1 Fateh Mohammad is of unsound mind.” 7. The evidence in support of the aforesaid issues to establish that Fateh Mohammad was of unsound mind and that he had not endorsed his thumb impression, the Court summoned him to obtain his thumb impression since the sale deed executed by him in favour of the defendant was required to be proved by an expert. The plaintiff No. 2 initially gave an application that Fateh Mohammad has gone out in connection with some work and subsequently changed his stand and stated that he had run away and his whereabouts was not known since last three years. The plaintiff No. 2 initially gave an application that Fateh Mohammad has gone out in connection with some work and subsequently changed his stand and stated that he had run away and his whereabouts was not known since last three years. P.W. 2 Kunwar Sen stated that he is not aware about the mental state of the plaintiff No. 1 Fateh Mohammad. 8. D.W. 1 and D.W. 2 have disputed the fact that Fateh Mohammad is of unsound mind and asserted that he plies rickshaw. The Courts below came to a conclusion that there is nothing in evidence to establish that Fateh Mohammad is of unsound mind and he executed the sale deed in favour of the defendant without understanding its consequences. The burden was that of the plaintiffs, which they failed to discharge. This finding on issue No. 6 by the trial Court is based on cogent and extensive reasoning and confirmed by the lower appellate Court. Similarly, issue No. 1 whether the plaintiffs are the owner in possession of the disputed plot, has also been accepted for want of sufficient proof. No attempt was made on the part of the plaintiffs to get survey commission issued and established the area and extent of their possession. Only evidence given was extract of Khasra whereas the sale deed in favour of the defendant was also not disputed. Oral evidence adduced by the plaintiffs was held to be contrary to the plaintiffs’ case and since both issues were decided against them, they were refused injunction. The sale deed executed and adduced in evidence as Exhibit A-2 is admitted and only assertion on behalf of the plaintiffs is that the disputed property is adjacent to his land. The witness of the sale deed, P.W. 2 has stated that the subject matter of the land in the sale deed is 3.75 Bighas. There is no relief claimed for cancellation of the sale deed or any declaration to that effect. Only relief is that of injunction. Issue No. 1 was also decided against the plaintiffs. 9. Learned Counsel for the appellants has raised following substantial questions of law by bringing amendment in the memorandum of the appeal, which has already been allowed. There is no relief claimed for cancellation of the sale deed or any declaration to that effect. Only relief is that of injunction. Issue No. 1 was also decided against the plaintiffs. 9. Learned Counsel for the appellants has raised following substantial questions of law by bringing amendment in the memorandum of the appeal, which has already been allowed. Substantial questions of law raised in the instant second appeal are quoted berein below : “(1) Whether the lower appellate Court acted illegally in dismissing the appeal of the plaintiff/appellants on the ground that the suit land is not identifiable in utter disregard such plea was never raised in the trial Court and no issue was framed and no finding was recorded by the trial Court on this point and the suit was filed for specific plot Khasra No. 673-A and 673-B and the lower appellate Court invented a case which was never pleaded by the parties? (2) Whether the Courts below having held that the sale deed was executed in favour of the defendant/respondent by the plaintiff/appellant Fateh Mohammad of suit plot Khasra No. 653 to the extent of 1/4th share, acted illegally is not considering the effect of such finding which confers the co-tenants right upon the parties to the proceedings? (3) Whether the Court below having held that plaintiff/appellants and defendant/respondents are co-tenant of the suit plots acted illegally in holding that the plaintiff/appellants have no possession over such land in utter disregard of well known proposition of law that the possession of one co-tenant is the possession of all co-tenant unless ouster is pleaded and proved? (4) Whether the Court below having held that Noor Khan, the father of the plaintiff/appellant was the Sirdar of the suit land and the Courts below acted illegally in holding that the plaintiff/appellants have no title in the suit plots without recording any finding that is what manner the title of the appellant as Bhumidhar has extinguished? (5) Whether the Courts below acted illegally in recording a conflicting finding inasmuch as on one hand the validity of the sale deed in favour of the defendant/respondent was upheld by which he became the co-tenant holder of the suit plots and on the contrary the Courts below recorded a finding that the plaintiff/appellants have no title and possession over the land in suit? 10. 10. I have perused the two judgments and heard the learned Counsel for the appellants at length. The fact that Fateh Mohammad, who executed the sale deed is not of unsound mind, has also not been pressed before this Court but emphasis is that the land is not identifiable and specific boundary was not mentioned by the defendant in the pleading. The lower appellate Court should have remanded the matter to get demarcation made by the survey commission. 11. I am not in agreement with the argument of the Counsel for the appellants. This is a case of no evidence but for a Khasra extract brought on record. It is argued on the basis of Khasra extract that the area is not identifiable. There is no pleading to that effect and the plaintiffs made no attempt to make a request to the trial Court as well as lower appellate Court for getting it measured and demarcated by the survey commissioner whereas the burden was that of the plaintiffs, which they have miserably failed to discharge and thus the lower appellate Court cannot be saddled with the responsibility to issue survey commission without there being any application to that effect or pleading to show that the area is not identifiable. This is only an afterthought. I am of the view that this Court in exercise of jurisdiction under Section 100, C.P.C. cannot assume the role of the trial Court and that too without any application for getting demarcation done at any stage of the trial or appeal and the Courts have committed no error least of all error of law or substantial error of law in holding that the plaintiffs have not been able to establish their case and are not entitled for any relief whatsoever. 12. Next argument is that findings of the lower appellate Court are full of contradictions. Once it was held that the sale deed executed by Fateh Mohammad in favour of the defendant was valid and he became co-tenure holder then how the plaintiffs’ title could be extinguished. The lower appellate Court was liable to look into the matter and decide this question as well. I do not agree with this argument as well. 13. Once it was held that the sale deed executed by Fateh Mohammad in favour of the defendant was valid and he became co-tenure holder then how the plaintiffs’ title could be extinguished. The lower appellate Court was liable to look into the matter and decide this question as well. I do not agree with this argument as well. 13. The limited relief claimed was for injunction and the plaintiff No. 2 initially tried to set up claim on the basis that the plaintiff No. 1, his brother is of unsound mind. This appears to be for the reason to discredit the sale deed executed in favour of the defendant; when the Court expressed its desire to examine the plaintiff No. 1 to ascertain whether claim of the defendant on the basis of the sale deed can be rejected for the reason that the executor of the sale deed was of unsound mind, the plaintiff No. 2 wriggled out of the situation by taking altogether a different stand. The Courts had no other option but to accept the fact that the defendant was in occupation on the basis of sale deed, which is not disputed even before this Court. In the circumstances, findings recorded by the Courts below do not suffer from any error of law whatsoever. How could the Courts below be encumbered with the responsibility of extracting evidence in favour of the plaintiffs when no attempt was made on their part themselves. The Courts could not exceed the limit by examining the evidence of facts relating to such relief, which was claimed in the plaint. In the circumstances, argument of the Counsel for the appellants are without any substance. There is no substantial error of law and both the judgments cannot be interfered in exercise of jurisdiction under Section 100, C.P.C. 14. The Courts could not exceed the limit by examining the evidence of facts relating to such relief, which was claimed in the plaint. In the circumstances, argument of the Counsel for the appellants are without any substance. There is no substantial error of law and both the judgments cannot be interfered in exercise of jurisdiction under Section 100, C.P.C. 14. The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon’ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100, C.P.C. For ready reference, extract of paragraph 7 of the case of Veerayee Ammal v. Seeni Ammal, (2002) SCC 134 is quoted below : “7......We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi, held : (AIR 1205 para 3). "It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact.” 15. Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and others v. Sri Venugopalaswamay B. Koil and others, JT 2004 (5) SC 54; Rajeshwari v. Puran Indoria, (2005) 7 SCC 60 , Gurdev Kaur and others v. Kaki and others, 2006 SCC and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722 . 16. 16. The Apex Court in the recent case of Santosh Hazari v. Purshottam Tiwari, (2001) 3 SCC 179 , ruled that a point of law which admits of no two opinions may be preposition 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, in so far as the rights of the parties before it are concerned. It will, therefore, depend on the facts and circumstances of each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govinda Raju v. Mariamman, (2005)2 SCC 500 . 17. The judgments under challenge cannot be interfered in this appeal in exercise of jurisdiction under Section 100, C.P.C. The two judgments do not suffer from any error and no substantial question of law arises. The instant second appeal fails and is dismissed with cost. ————