Judgment : G. Rajasuria, J. This second appeal is focused by the defendant, animadverting upon the judgment and decree dated 8. 1994 passed by the learned Subordinate Judge, Tiruvellore in A.S. No. 32 of 1990 confirming the judgment and decree dated 24. 1990 passed by the learned District Munsif, Tiruvellore in O.S. No. 233 of 1986. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Niggard and bereft of details, the germane facts, which are absolutely necessary for the disposal of this second appeal would run thus: The plaintiff filed the suit O.S. No. 233 of 1986 seeking the relief of declaration that the second plaintiff is the absolute owner of the house site described in the schedule of the plaint and for the consequential injunction by setting out the following averments: One Sivalingam purchased the suit property as per the sale deed dated 29. 1936 from one Kuppammal and he has been in possession and enjoyment of the same. Following him, his son Ganapathy inherited the same and enjoyed it. After his death, his son the first plaintiff inherited it and sold it in favour of the second plaintiff as per sale deed dated 24. 1996. The defendant without having any manner of right whatsoever started laying claim ever the suit property as though it is a joint family property. Hence the suit. 3. Per contra, denying and refuting, challenging and impugning the averments/allegations in the plaint, the defendant filed the written statement, the pith and marrow of it would run thus: “The said Sivalingam referred to the plaint did not purchase the suit property out of his own income. But it was purchased from out of the joint family income in the name of Sivalingam as he was the eldest male member of the joint family. Consequently, other averments relating to inheritance are all false. The second plaintiff cannot be taken as the one who acquired proper title from his vendor. The second plaintiff is not is possession of the suit property. The defendant has been in possession and enjoyment of the suit property for over 36 years openly, uninterruptedly and continuously and thereby perfected his title by adverse possession and accordingly, he prayed for the dismissal of suit.” 3. The trial Court framed the relevant issues. The second plaintiff is not is possession of the suit property. The defendant has been in possession and enjoyment of the suit property for over 36 years openly, uninterruptedly and continuously and thereby perfected his title by adverse possession and accordingly, he prayed for the dismissal of suit.” 3. The trial Court framed the relevant issues. During trial, the first plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exhibits A-1 to A-17 were marked. On behalf of the defendant, the defendant examined himself as D.W1 along with S.Ws.2 and 3 and Exhibits B-1 to B-9 were marked. 4. Ultimately, the trial Court decreed the suit, as against which, the defendant preferred first appeal in A.S. No. 32 of 1990, for nothing but to be dismissed by the lower appellate Court confirming the judgment and decree of the trial Court. 5. Being disconcerted and aggrieved by the judgment and decree of both the Courts below, the defendant has filed this second appeal on various grounds, the gist and kernel of them would run thus: “Both the Courts below fell into error in placing reliance on the sale deed Exhibit A-2, which was brought about so s to create falsely, interest in the suit property. The lower Court failed to hold that the suit property was purchased from out of the income of the joint family. The evidence of PW3 was not considered properly. The commissioner’s report and the sketch Exhibits C-1 and C-2 were failed to be taken note of by both the Courts below. Accordingly, he prayed for setting aside the judgment and decree of both the Courts below. 6. My learned predecessor framed at the time of admitting the second appeal the following substantial question of law: “Is the Court justifiable under law to ignore the presumption under law by the erroneous approach, i.e. When there is the probability that by treatment and conduct, the suit property was treated as joint Family Property and thrown into the hotch pot. Is it justifiable to base the findings on the sale deed Exhibit A-2 that stands admittedly in the name of the eldest male member who was acting as the Manager and kartha of the Hindu Undivided Joint family.” .7. Is it justifiable to base the findings on the sale deed Exhibit A-2 that stands admittedly in the name of the eldest male member who was acting as the Manager and kartha of the Hindu Undivided Joint family.” .7. On 30.6.2009, after hearing both sides partly, I thought fit to recast the substantial question of law as under: .“Whether the appellate Court ignored the alleged evidence of the defendant relating to his possession of the suit property and ushering in the principle “possession follows title” in deciding the case favour of the plaintiff?” 8. The learned counsel on both sides advanced arguments relating to the aforesaid substantial question of law. 9. The learned counsel appearing for the second appellant while advancing his argument before this Court restricted his argument relating to the factum of possession of the defendant over the suit property by getting forth and putting forth his contentions to the effect that the lower Court failed to frame the issue relating to possession; the commissioner report and the sketch would unambiguously show that the defendant is in possession of the suit property and in any event, the plaintiff was not justified in seeking for injunction; he ought to have prayed for recovery of possessions the first appellate Court simply ignored the commissioner’s report and the factum of the defendant being in possession of the suit property by observing as though there was no evidence to demonstrate from which point of time, the defendant started occupying the suit property, etc., and thereby misdirected himself. 10. It is also the contention of the learned counsel for the second appellant that the principle “possession follows title” is not applicable in the facts and circumstances of this case as the second plaintiff could not have been in possession of the suit property at all for the reason that she could not have ingress and egress to the suit property through the admitted adjacent property of the defendant as per him. Ignoring the commissioner’s observation that there is no access to the suit property directly, except by having access through the property of the defendant, would at no point of time permitted the second plaintiff to have ingress and egress to the suit property through his admittedly adjacent property, the Courts below rendered the judgments. 11. Ignoring the commissioner’s observation that there is no access to the suit property directly, except by having access through the property of the defendant, would at no point of time permitted the second plaintiff to have ingress and egress to the suit property through his admittedly adjacent property, the Courts below rendered the judgments. 11. Whereas the learned counsel for the respondents/plaintiff would by way of torpedoing and pulversing the argument as put forth on the side of the second appellant would develop his argument that the appellant’s arguments are based on factual points, which cannot be raised for the first time before the Court and that the first appellate Court was justified in holding that there was no proof to indicate from what point of time, the improvised toilet was there in the suit property. 12. It is therefore, just and necessary to refer to the commissioner’s report and sketch. 13. A plain reading of the commissioner’s report would demonstrate and display that when the Commissioner visited the suit property, there was an improvised toilet without roof in the suit property. 14. The core question arises to whether such an improvised structure was there even as on the date of filing of the suit, for which, the learned counsel for the defendant, would submit that there was no issue to that effect. However, the learned counsel for the plaintiff would submit that the issue No. 4 was relating to the prescriptive title and the alleged adverse possession of the defendant and as such that issue was comprehensive enough to include it in the issue relating to possession as on the date of filling of the suit. .15. Both the Courts below while deciding issue No. 4 held that the defendant was not in possession and thereby he had not acquired any prescriptive title. In such a case I could see considerable force in the submission made by the learned counsel for the plaintiff that for the first time, the proceedings of the Court below cannot be found fault with by the defendant on factual findings. The parties understood their respective contentions and adduced evidence whereupon the trial Court gave a finding that the defendant was not in possession of the suit property and by invoking the principle, “possession follows title”, the Courts held that the possession is with the plaintiff as it is a vacant plot. The parties understood their respective contentions and adduced evidence whereupon the trial Court gave a finding that the defendant was not in possession of the suit property and by invoking the principle, “possession follows title”, the Courts held that the possession is with the plaintiff as it is a vacant plot. Simply because in some portion of the suit property, as pointed out by the Commissioner, who visited the spot on 26. 1986, there is an improvised bath room and one tub found placed there and that there are some bricks found strewn as well as heaped in some portion, no presumption arises that the vacant site, which is the suit property is in the possession of the defendant. 16. At this juncture, I would like to detail and delineate here the very topography of the suit property and also the defendant’s house, which is situated to the west of the suit property. From the commissioner’s report and sketch, one could visualize and bring before the mind’s eye that for the suit property, no doubt, direct access from the road is not there and in order to have ingress and egress to the suit property, one has to enter through the wooden gate of the defendant’s plot. This is a matter relating to easement. In this case, this Court is not directly concerned with it. Taking into consideration the factual position and the valid document in favour of the second plaintiff, the Courts below clearly held that she is the owner of it and also applied the principle “possession follows title” relating to that vacant site. 17. Hence, in such a case, this Court cannot re-appreciate the factual possession based on the factual arguments advanced by the defendant’s counsel. 18. It is a trite proposition of law that even a trespasser, who is in established possession of the suit property could insist, for the real owner to file a suit for recovery of possession and till then he should not be disposed. 18. It is a trite proposition of law that even a trespasser, who is in established possession of the suit property could insist, for the real owner to file a suit for recovery of possession and till then he should not be disposed. But, on the other hand, if during the pendency of the suit for injunction or in a casual manner during the pendency of the suit, if the defendants enters into the suit property and puts up some improvised structure, such a person is not entitled to insist upon the plaintiff to file a suit for recovery of possession or insist upon the plaintiff to get the plaint amended so as to convert the prayer for permanent injunction into one for recovery of possession. Here, the first Appellate Court, has clearly and categorically pointed out that there is absolutely nothing to highlight, whence such improvised structure of toilet has been in existence. 19. The learned counsel for the respondents/plaintiffs cited correctly the following two decisions: (i) Tuticorin Diocesan Trust Association, thro its procurator at Tuticorin and Others v. Thavamani and Others (2003) 2 MLJ 208 : (2003) 1 CTC 478. An excerpt from it would run thus at p. 211 of MLJ: “13. In our case, the plaintiff through Exhibit A-1 to A-4 has established that the suit property originally belonged to Alwar and the same was purchased by the plaintiff under Exhibit A-5. As the suit property is a “Grama Natham and it is lying vacant, neither the plaintiff nor the defendants were able to file any other record to show, whether they are enjoying the property and also paid some tax to Government, but, that will not take away the right of the plaintiff in the suit property. 14. That apart, Exhibit A-1 is in anterior point of time than Exhibit B-1 and the said fact was also taken note of by the lower Appellate Court, In coming to the conclusion that the plaintiff is entitled to the suit property and I do not find any error in the said finding. As the plaintiff is able to establish the title to the suit property, the mere non-examination of his vendor would not affect the right, claimed by the plaintiff and therefore, question No. (i) is answered in favour of the respondent. 15. As the plaintiff is able to establish the title to the suit property, the mere non-examination of his vendor would not affect the right, claimed by the plaintiff and therefore, question No. (i) is answered in favour of the respondent. 15. With regard to question No. (ii), it could be seen that the plaintiff had established his title to the suit property. It is, no doubt, true that both the plaintiff and, the defendants have not filed any document to show their respective possession to the suit property. But, however, Exhibit A-1, as we have already seen, is in anterior point of time than Exhibit B-1 and therefore, it could easily be presumed without any difficulty that the beneficiaries under Exhibit A-1, were in possession and enjoyment of the property and said possession was transferred subsequently to who have purchased the property, and therefore, the lower appellate Court is correct in coming to the conclusion that the plaintiff and his predecessors in title have been enjoying the property for well over a period of 12 years therefore, the suit is not barred by time. As against the same, there is absolutely no material in favour of the appellants/defendants to hold that they are in possession of the suit property and therefore, their claim is rejected.” (ii) Navalram Laxmidas Devmurari v. Vijayanem Jayvanbhai Chavda AIR 1998 Gujarat 17. An excerpt from it would run thus: “17. The Trial Court, on appreciation of evidence has recorded a finding that the entire suit lnd is having one compound wall and it has only one entrance gate. The Trial Court has further found that if the appellant tethers cattle therein, it cannot be said that he is doing it at the exclusion of defendant and that he is in exclusive possession of the property. After holding that the appellant is tenant of one room, latrine, varanda, bathroom, kitchen, the Trial Court has deduced that making of construction like shed, water tank, etc. meant for cattle would not indicate that the appellant was in possession of vacant land. Similarly, the first appellate Court, which is final Court of facts, has also found that the respondent is in exclusive possession of the open land and construction of illegal structure on small part would not indicate that the appellant is in exclusive possession of the open land. Similarly, the first appellate Court, which is final Court of facts, has also found that the respondent is in exclusive possession of the open land and construction of illegal structure on small part would not indicate that the appellant is in exclusive possession of the open land. The question whether the respondent is in possession of open land or not is a pure question of fact and not of law much less a substantial question of law. The said finding is based on proper appreciation of evidence. It is not brought to the notice of the Court that while reaching the said finding any evidence led by the appellant is ignored by the Courts. The Supreme Court time out of number has ruled that it is not for the High Court to re-appreciate the evidence while hearing Second Appeal and to substitute findings recorded by the first Appellate Court. It is not open to High Court to set aside findings of fact of first Appellate Court and come to different conclusion on reappraisal of evidence. The fact finding Courts have not acted on any assumption not supported by evidence. The fact finding Courts have not acted on any assumption not supported by evidence. No question of law much less substantial question of law is involved in the matter. At best the question involved in the case could be said to be questions of appreciation of evidence. Under Section 100 of C.P.C High Court has jurisdiction to interfere only when a substantial question of law is involved which is misinterpreted by fact finding Courts. As re-appreciation of evidence and interference with findings of fact of the original Court and first appellate Court is not open, concurrent findings that (sic) the respondent is in possession of the open land cannot be interfered with in the present appeal, more particularly when it is found that the said finding is based on proper appreciation of evidence. The respondent is in possession of the open piece of land and as the appellant is not in possession of the land, it was not necessary for the respondent to claim any further relief within the meaning of Section 34 of the Act nor can it be said that suit was liable to be defeated, as equally efficacious remedy, was available to the respondent under Section 41(h) of the said Act. In view of the above discussion, I am of the opinion that the suit is not barred by the provisions of Section 41(h) of the Specific Relief Act. The substantial question of law formulated by the Court is, therefore, answered in negative and against the appellant. Under the circumstances, the Second Appeal fails and is hereby, dismissed. However, having regards to the facts of the case, there shall be no order as to costs.” 20. It is a common or garden principle of civil law, that the person who presses into service certain plea should prove it. 21. It is quite axiomatic that the commissioner was not examined in this case. Even the commissioner’s report as such, would not constitute evidence relating to possession of either of the parties. P.W.1 also was not cross-examined admittedly to prove to the effect that the defendant even anterior to the filing of the suit itself had put up such structures. Hence, these are all very vital points to be considered in this case and the first Appellate Court’s approach in holding that the plaintiff is entitled to injunction cannot be found fault with, in the second appeal stage. 22. The learned counsel for the plaintiff also has correctly highlighted that the second appeal is only concerned with the substantial question of law based on the evidence already available on record. For the first time, on factual findings of both the Courts below, the second appellate Court cannot re-appreciate and arrive at a different conclusion. 23. Ungainsayable and indubitable the fact is that on the defendant’s side, there is nothing to indicate anything about the said improvised structure referred to in the Commissioner’s report, while adducing evidence. 24. To the risk of repetition, without being tautologous, cross examination of the plaintiffs witnesses were also not on that line. While holding so, I countenance that, during the pendency of the suit, if major changes are effected, at the instance of the defendant by trespassing into the suit property, the same should not be ignored and injunction cannot be granted, but, in a case like this, where the alleged structure put up is an improvised one, which is poco curante in nature, the Court should not allow the defendant to capitalize his own mistake or wrong. 25. 25. At this juncture, my mind is reminiscent and redolent of the following maxims: .(i) Nullus commodum capere potest de injuria sua propria: No one can take advantage by his own wrong. .(ii) Nul prendra advantage de son tort demesne: No one shall take advantage of his own wrong. Together with those propositions, the famous maxim, De minimis non cural lek – The law does not care for trivial things, should be considered for deciding this case. The first Appellate Court correctly appreciated and held that the petitioner is entitled to injunction also in addition to declaratory relief. Hence understanding correctly, he ushered in the concept “possession follows title”, which warrants no interference in the second appeal. 26. Accordingly, the substantial question of law is decided to the effect that the defendant has not adduced any rebuttal positive evidence relating to possession over the suit property and the principle “possession follows title” as applied by the first appellate Court cannot be found fault with. 27. In the result, the second appeal fails and the same is dismissed. No costs.