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2012 DIGILAW 951 (MP)

Pushpalata v. Mishri Bai

2012-10-01

ANIL SHARMA

body2012
JUDGMENT 1. This second appeal has been filed under section 100 of CPC against the judgment and decree dated 24.12.2005 passed in Civil Appeal No. 22-A/05 by learned First Additional District Judge, Shivpuri, M.P. reversing the judgment and decree dated 25.5.2005 passed in Civil Suit No. 7-A/04 by Second Civil Judge, Class-II, Sheopur, M.P. 2. The brief facts of the case are that respondents/plaintiffs filed a suit for declaration and injunction with respect to land bearing survey No. 230/1 area 1.672 hectare and survey No. 447 area 0.058 hectare situated at village Fatehpur, District Shivpuri. It is alleged by the plaintiffs that the disputed land was purchased by them through registered sale deed in the year 1990-91 and behind the back of the plaintiffs, land has been got recorded by defendants No. 1 to 3 in the revenue record on the basis of order passed by Tahsildar on 27.7.1995 which was illegal, therefore, suit has been filed for declaration and permanent injunction. 3. Defendants No. 1 and 2 did not file written statement in the trial Court. Defendent No. 3/appellant has filed the written statement alongwith counter claim seeking the relief of Bhumiswami rights as well as injunction alleging that the land in question was given by the plaintiffs to defendant No. 3 on lease and possession was also handed over to the defendant, therefore, the defendant was in cultivating possession of the land in dispute and only on the basis of admission made by plaintiffs, the order was passed by the Tahsildar while exercising the powers under section 190 of M.P. Land Revenue Code, 1959 (for brevity ‘the Act’). The civil suit is not maintainable and by dismissing the suit, defendant No. 3 be declared Bhumiswami of the suit land. 4. Learned trial Court vide judgment and decree dated 25.4.2005 dismissed the suit filed by the plaintiffs as well as the counter claim filed by the defendant. Aggrieved by the judgment and decree passed by learned trial Court, plaintiffs have filed appeal against dismissal of their suit and defendant has also filed appeal against dismissal of her counter claim. Learned appellate Court has allowed the appeal filed by the plaintiffs and decreed the suit filed by the plaintiffs and the appeal filed by the defendant has been dismissed. Learned appellate Court has allowed the appeal filed by the plaintiffs and decreed the suit filed by the plaintiffs and the appeal filed by the defendant has been dismissed. Therefore, appellant-defendant No.3 has filed this appeal on the ground that learned lower appellate Court has erred in passing the impugned judgment and decree overlooking the fact that under the provisions of sections 168, 169 and 190 of the Code, right of Bhumiswami has been perfected to the defendant and the order passed by the Tahsildar in this regard has attained finality and same cannot be challenged in the suit. The suit filed by the plaintiffs was itself not maintainable as the plaintiffs have not challenged the order passed by the Tahsildar nor filed any appeal against the order passed by Tahsildar under the provisions of the Act. The order passed by Tahsildar was based on compromise between the parties and same could not be challenged before civil Court and the suit was not maintainable in view of the provisions of order XXIII Rule 3-A of CPC. 5. Following substantial question of law have been framed by the Court vide order dated 17.2.2006:- (i) Whether, the suit filed by plaintiff would be held to be maintainable in view order 23 rule 3-A of CPC ? (ii) Whether, the first appellate Court erred in holding that the suit of of the plaintiff/respondent is within limitation? (iii) Whether learned appellate Court has erred in decreeing suit overlooking admission made by plaintiff ? REGARDING SUBSTANTIAL QUESTION OF LAW NO.1 6. Learned counsel for the plaintiffs has drawn attention of this Court towards the fact that appellant/defendant No. 3 has been declared Bhumiswami of the suit land survey Nos. 230/1 area 1.672 hectare and survey No. 447 area 0.058 hectare situated at village Fatehpur, District Shivpuri by the order dated 27.7.1995 passed by Tahsildar, certified copy of which is Ex. D/8, allowing the application filed by Smt. Kusum Bai, Smt. Kamla Bai and Smt. Pushpalata (appellant/defendant No.3) against Smt. Mishri Bai and Smt. Kiran Bai, certified copy of which is Ex-D/1. In reply, an application was filed under sections 109 and 110 of the Code and plaintiffs in their reply admitted possession of appellant for six years alongwith all the averments made in the application. In reply, an application was filed under sections 109 and 110 of the Code and plaintiffs in their reply admitted possession of appellant for six years alongwith all the averments made in the application. Smt. Mishri Bai and Smt. Kiran Bai have appeared before the revenue Court on service of notices, certified copy of which are Ex-D/2 and D/3. They have signed the order-sheets of revenue Court, certified copy of which is Ex-D/4. Name of appellant has been mutated in the revenue record in compliance of order dated 27.7.1995 which is apparent from the certified copy of khasra entries Ex-D/10 to D/13. The appellant before the trial Court has also filed bill and receipt of tubewell (Ex-D/14) and water availability certificate (Ex-D/15). 7. Learned counsel for the appellant has submitted that the plaintiffs in para 4 of the plaint have pleaded that the order passed by Tahsildar on 27.7.1995 is liable to be set aside. But in the relief clause they have not prayed for any relief against the order passed by the Tahsildar, therefore, the order of Tahsildar by which appellant/defendant No. 3 has been declared Bhumiswami and his name has been mutated in the revenue record has attained finality. 8. Learned counsel for the appellant submitted that the order of Tahsildar Ex-P/8 has been passed on the ground of admission regarding lease of suit land by Smt. Mishri Bai and Smt. Kiran Bai (plaintiffs/respondents No. 1 and 2), certified copy of which is Ex-D/1. It has been further submitted by learned counsel for the appellant that the order passed by learned Tahsildar under the provisions of section 168, 169 and 190 of the Code. Learned counsel for the appellant drew attention of this Court towards the provisions of Order XXIII Rule 3 of CPC regarding compromise of the suit which includes satisfaction of the plaintiffs claim in respect of whole or in part of subject matter of the suit. Learned counsel for the appellant further drawn attention of this Court towards the provisions of Order XXIII Rule 3-A of CPC, according to which no suit shall lie to set aside the decree on the ground of compromise on which the decree was passed was not lawful. 9. Learned counsel for the appellant further drawn attention of this Court towards the provisions of Order XXIII Rule 3-A of CPC, according to which no suit shall lie to set aside the decree on the ground of compromise on which the decree was passed was not lawful. 9. Learned counsel of the respondents on the other hand submitted that Tahsildar had no power to declare title of the plaintiffs, plaintiffs have filed the suit for declaration of their title which is triable by civil Court only, therefore, the order of Tahsildar is without jurisdiction as he has no power for declaration of title. 10. Learned counsel for the appellant has drawn attention towards the fact that under section 168 of the Code, no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of the three years. According to proviso to section 168, the provisions of sub-section are not applicable, lease of any land hold by Bhumiswami for non-agriculture purpose. Under section 169 of the Code an unauthorized lease i.e. lease in contravention of section 168 of the Code gives right of occupancy tenant to the leasee and under section 190 of the Code Bhumiswami rights are conferred on occupancy tenant. Under section 257 of the Code any order passed by the revenue Court under section 190 Code exclusive jurisdiction is vested in the revenue Court and the jurisdiction of civil Court is barred over such matter, therefore, when there is no question of title involved i.e. at the time of passing of order, certified copy of which is Ex-D/8 by Tahsildar on the basis of admission of plaintiffs No. 1 and 2, there was no title involved in the suit. It is only after passing of the order by Tahsildar the plaintiffs have come forward for declaration of their title which they have already lost in a proceeding before Tahsildar by the order Ex-D/8 passed on 27.7.1995. Another point of view is that even if it is taken that Tahsildar was not having any jurisdiction to declare title although he had jurisdiction to assign the Bhumiswami right under section 190 of the Code, admission made by plaintiffs No. 1 and 2 are binding upon them. 11. Another point of view is that even if it is taken that Tahsildar was not having any jurisdiction to declare title although he had jurisdiction to assign the Bhumiswami right under section 190 of the Code, admission made by plaintiffs No. 1 and 2 are binding upon them. 11. Learned counsel for the appellant submitted that although the plaintiffs have pleaded that the order Ex-D/8 passed by Tahsildar is liable to be set aside but no relief regarding setting aside the order has been prayed in the plaint. Further the order passed by Tahsildar on 27.7.1995 has not been challenged in the appeal also, therefore, the order Ex-D/8 passed on 27.7.1995 has attained finality and the jurisdiction of civil Court is barred under section 257 of the Code against the order of conferral of Bhumiswami rights passed by Tahsildar (Ex-D/8). 12. Learned counsel for the appellant submitted that the provisions of Order XXIII Rule 3-A of CPC are not applicable where the compromise is alleged to have been arrived at by fraud and collusion made against the statutory authority. In such a case High Court can examine the validity of compromise decree. In support of his arguments, learned counsel for the appellant has placed reliance on the decision of Apex Court in the matter of A.A. Gopalakrishnan Vs. Cochin Devaswon Board and others, (2007)7 SCC 482 . In this regard he has also placed reliance on the decision of Rajesh Kumar Vs. Rakesh Kumar and another, 2008(1) MPLJ 221 . In the present case the order passed by Tahsildar Ex-D/8 is not based upon the agreement between the parties or compromise between the parties. It is based on the admission made by the plaintiffs who were not the applicants before Tahsildar, therefore, the judgment cited above has no applicability to the present case. 13. Learned counsel for the respondents has placed reliance on the decision of Apex Court in the matter of K. Raghunandan and others Vs. Ali Hussain Sabir and others, (2008)13 SCC 102 . according to which the compromise decree creating or extinguishing a right a fresh compulsory registration if the compromise decree comprises immovable property which was not subject matter of suit or proceedings. Ali Hussain Sabir and others, (2008)13 SCC 102 . according to which the compromise decree creating or extinguishing a right a fresh compulsory registration if the compromise decree comprises immovable property which was not subject matter of suit or proceedings. The order passed by Tahsildar is not based on compromise, it is based on admission or satisfaction of claim of appellant by the respondents that too subject matter involved in the case, therefore, this judgment has also no application to the present case. 14. Learned counsel for the respondents has also cited the judgment of Full Bench of this Court in the matter of State of M.P. Vs. Balveer Singh 2001 R.N. 343= 2001(2) MPLJ 644 in which it has been held that determination of question of Bhumiswami rights lies within the province of civil Court, civil Suit is maintainable in respect of dispute with the State other than contemplated under section 57(1) of the Code. It be noted that Bhumiswami rights cannot be acquired by adverse possession extinguishment of right will not automatically result in accrual of Bhumiswami rights but this judgment relates to a case where the accrual of bhumiswami rights was based on adverse possession and not of Maurushi Krishak or occupancy tenant. In the present case accrual of Bhumiswami rights of appellant is based on the provisions of section 190 of the Act read with section 188 and 189 of the Code, therefore, this judgment has also no application to the present case. 15. Learned counsel for the respondents has cited the judgment of Apex Court in the matter of Rohini Prasad and others Vs. Kasturchand and another, 2000 RN 141= AIR 2000 SC 1283 in which it has been held that the suit instituted by Bhumiswami based on title is not barred under section 257 of the Code. In the present case although the suit has been filed for declaration of title but the order on the basis of which the appellant has acquired title of Bhumiswami has been passed by the revenue Court on 27.7.1995 under section 190 of the Code. Such order cannot be challenged in a civil suit looking to the bar created by section 257 of the Code, therefore, this judgment has also no applicability to the facts and circumstances of the present case. On this point another judgment has been relied in the matter of Ramgopal Kanhaiyalal Vs. Chetu Batte. Such order cannot be challenged in a civil suit looking to the bar created by section 257 of the Code, therefore, this judgment has also no applicability to the facts and circumstances of the present case. On this point another judgment has been relied in the matter of Ramgopal Kanhaiyalal Vs. Chetu Batte. 1976 JLJ 278 = 1976 MPLJ 325 . 16. Learned counsel for the respondents has cited the judgment of this Court in the matter of State of M.P. and another Vs. Ratan Das, 2010(4) MPLJ 415, in which it has been held that the determination of bhumiswami right the jurisdiction of civil Court is not barred except the cases falls within the ambit of those which are specified under section 257 of the Code. This judgment favours the appellant and further confirms the analogy of this Court, other judgments cited by learned counsel for the respondents regarding jurisdiction of civil Court for declaration of title. Learned counsel for the respondents has also cited the judgment of Apex Court in the matter of Horil Vs. Keshav and another, AIR 2012 SCW 1307 in which it has been held that the power provided under Order XXIII Rule 3-A of CPC setting aside the compromise decree on the ground of it being unlawful does not apply to the decree passed by the revenue Court more over civil Court has inherent jurisdiction to try all types of suit. 17. The order passed by the revenue Court Ex-D/8 is passed under section 190 of the Code on the basis of admission/satisfaction in reply filed by plaintiffs No. 1 and 2 who are respondents No. 1 and 2 herein, therefore, the order of revenue Court has been passed on the ground of admission/satisfaction of appellant claim by the respondents and not on compromise and for deciding the application under section 190 of the Code, the revenue Court has exclusive jurisdiction and the order passed by Tahsildar Ex-D/8 has neither been challenged in appeal before the higher revenue Court nor there is any prayer of setting aside the order passed by Tahsildar in the suit under consideration, therefore, the judgment cited by learned counsel for the respondents is not applicable to the present case. 18. Learned counsel for the appellant has cited the judgment of this Court in the matter of Guddi Vs. 18. Learned counsel for the appellant has cited the judgment of this Court in the matter of Guddi Vs. Banwari Rameshwar and others, 1999 (1) MPLJ 63 in which it has been held that the compromise decree where minor was plaintiff passed without permission under order XXII Rule 7 of CPC, challenge by minor on attaining the majority claiming relief, of declaration that the decree paned during minority was illegal, void and relief of injunction prayed, such suit is not teneable, remedy in by application to the Court which had passed the decree in view of order XXIII Rule 3-A of CPC. Considering the judgment, the suit filed by the plaintiffs for declaration and title is not maintainable. 19. Learned counsel for the appellant has further submitted that although the plaintiffs have challenged the admissions made before the Tahsildar in the proceedings under section 190 and 110 of the Code but they have not appeared in the witness box to prove the fact that they have not signed the reply in which admissions have been made by them. On behalf of plaintiffs, only their power of attorney holder Ashok Thakur who has also filed suit on behalf of plaintiffs has appeared for evidence. Learned counsel for the appellant has drawn attention of his Court towards the fact that no power of attorney has been filed by the power of attorney holder Ashok Thakur at the time of filing of plaint and even at the time of giving evidence on behalf of plaintiffs. The power of attorney (Ex-P/2) has been filed at the time of additional evidence given by Ashok Thakur (PW-1) on 3.2.2005. Power of attorney is Ex-P/2 which has been executed on 8.12.2004 and the affidavit of examination-in-chief was filed on 25.6.2004, and cross-examination was conducted on 6.11.2004, thereafter, the power of attorney has been executed on 8.12.2004. 20. Learned counsel for the appellant has further drawn attention of this Court towards the fact that power of attorney (Ex-P/2) has been executed in favour of Ashok Thakur for the land of survey Nos. 231/1 and 440 area 1.672 hectare but the suit has been filed for agricultural land survey Nos. 20. Learned counsel for the appellant has further drawn attention of this Court towards the fact that power of attorney (Ex-P/2) has been executed in favour of Ashok Thakur for the land of survey Nos. 231/1 and 440 area 1.672 hectare but the suit has been filed for agricultural land survey Nos. 230/1 anra 1.672 hectare and survey No. 447 area 0.058 hectare situated at village Fatehpur, District Shivpuri, therefore, it is submitted by learned counsel for the appellant that no power of attorny has been executed in respect of suit land in favour of Ashok Thakur, therefore, suit filed by him is without any authority. Hence, the suit filed by power of attorney holder Ashok Thakur is not maintainable. 21. Learned counsel for the appellant has cited the judgment of Apex Court in the matter of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd, and others. (2005)2 SCC 217 in which it has been held that the power of attorney holder to “act” on behalf of principal, the power to depose in place of principal, extends only to deposition in respect of “acts” done by power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place of and instead of the principal for acts done by principal and not by power of attorney holder. Similarly power of attorney holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be cross-examined. If principal is unable to appear in Court, a commission for recording his evidence may be issued. 22. Learned counsel for the respondents on the other hand cited the judgment of this Court in the matter of Rajni Tiwari Vs. Bhagyawati, 2012(2) MPLJ 536 in which it has been held that husband of a party to the suit is competent witness. He is entitled to depose about the facts about which he or his wife had knowledge and he can also be remitted to exhibit the documents and there is no need to execute the power of attorney. It has been held with respect to section 120 of Evidence Act. In the present case the suit has been filed by the power of attorney holder that too in absence of power of attorney at the time of filing of suit. It has been held with respect to section 120 of Evidence Act. In the present case the suit has been filed by the power of attorney holder that too in absence of power of attorney at the time of filing of suit. The power of attorney has been executed as mentioned above after recording of evidence of power of attorney holded, therefore, till the date of recording of evidence of power of attorney he was not having any valid power of attorney executed in his favour, therefore, the suit filed by him was also unauthorized and his name as power of attorney holder was also unauthorized. He may be husband of one of the plaintiffs but he has not deposed as husband or having knowledge of husband of any plaintiff, Therefore, the suit filed by the plaintiffs through power of attorney holder in absence of valid power of attorney executed by them is not maintainable. Further the suit filed by the plaintiff without making any prayer for setting aside the order Ex-D/8 passed by Tahsildar even without mentioning the reliable ground for setting aside the order, the suit is also not maintainable. Therefore, the suit filed by the plaintiffs cannot be held to be maintainable in view of the Order XXIII Rule 3-A of CPC and futher looking to the technical ground i.e. absence of power of attorney in favour of the person who has filed the suit on the date of filing of suit or even on the date of which he appeared as witness in the capacity of power of attorney holder, the suit filed by the plaintiffs is not maintainable. Learned counsel for the respondents has further cited the judgment of Apex Court in the matter of State Bank of Travancore Vs. Kingston Computers (I) P. Ltd.. (2011)11 SCC 524 in which it has been held that the director of company has been duly authorized by the Board of Directors even if no evidence is produced to show that he was appointed as director of the company. But in the present case the power of attorney has been executed after recording of evidence of power of attorney holder Ashok Thakur and it cannot be taken on the same footing as the letter of authorization to the director by the Board of Directors, therefore, the judgment is not applicable to the present case. But in the present case the power of attorney has been executed after recording of evidence of power of attorney holder Ashok Thakur and it cannot be taken on the same footing as the letter of authorization to the director by the Board of Directors, therefore, the judgment is not applicable to the present case. Thus, the substantial question of law No.1 is answered in favour of appellant. REGARDING SUBSTANTIAL QUESTION OF LAW NO. 2 23. Learned trial Court has held that the suit has been filed beyond the prescribed period on limitation on the ground that the cause of action has been shown to be arisen by the plaintiffs on 31.7.2002 and the suit has been filed on 2.8.2002. Learned counsel for the appellant submitted that Bhumiswami rights have been conferred upon the appellant vide Ex-D/8 dated 27.7.1995 and the plaintiffs have filed the suit in which they have submitted that the order passed by Tahsildar is illegal and liable to be set aside although no relief for setting aside the order has been prayed for in the prayer clause. The suit challenging the order of Tahsildar has not been filed within three years from the date of order dated 27.7.1995 which was in the knowledge of plaintiffs as the fact regarding passing of order by Tahsildar on 27.7.1995 has been pleaded by the plaintiffs, therefore, learned trial Court is not justified by holding that the suit is within the limitation on the basis of date of cause of action mentioned on the basis of record available before it. According to pleading of defendant No. 3 the date of cause of action has been mentioned as 31.7.2002 but plaintiffs have filed the revision against the order of Tahsildar dated 27.7.1995 on 22.7.2002 before the Collector. Revision petition filed before the Collector has been rejected and this fact has been admitted by Ashok Thakur, power of attorney holdar of plaintiffs in his examination-in-chief. Revision petition filed before the Collector has been rejected and this fact has been admitted by Ashok Thakur, power of attorney holdar of plaintiffs in his examination-in-chief. In his examination-in-chief he has stated that the order dated 27.7.1995 passed by Tahsildar is liable to be declared void but no relief has been claimed for declaring the order passed by Tahsildar to be void in the prayer clause, therefore, the facts regarding accrual of cause of action on 27.7.1995 were before the trial Court and learned trial Court overlooking that fact has erred in law in holding that cause of action accrued on 31.7.2002 as mentioned by the plaintiffs, therefore, infact the suit filed by the plaintiffs is for setting aside the order passed by Tahsildar and without any prayer for setting aside the order passed by Tahsildar on 27.7.1995 the suit was not maintainable even if it is taken that on the basis of pleading the order of Tahsildar is liable to be set aside in absence of prayer for the same in prayer clause it is clear that the cause of action arose on 27.7.1995 and suit for setting aside the order passed by Tahsildar was required to be filed within a period of three years from the date of order i.e. 27.7.1995 but the suit has been filed in the year 2002, therefore, apparently the suit was time barred. 24. Learned counsel for the respondents has cited the judgment of this Court in the matter of Raj Kumar Vs. Radhey Shyam 2007(1) MPWN 53 = 2006 (4) MPLJ 387 in which it has been held that for a suit for declaration and possession prescribed limitation is 12 years as per defendant he was put in possession in the year 1980, therefore, the suit filed on 21.7.1988 is within limitation and cannot be said to be barred by time. In the present case the appellant was put into possession of the suit land before 6 years from the date filing of application before the revenue Court in which the order has been passed on 27.7.1995 and the suit has been filed by the plaintiffs on 2.8.2012 i.e. after more than 12 years. In the present case the appellant was put into possession of the suit land before 6 years from the date filing of application before the revenue Court in which the order has been passed on 27.7.1995 and the suit has been filed by the plaintiffs on 2.8.2012 i.e. after more than 12 years. Even the suit challenging the order passed by Tahsildar on 27.7.1995 has been filed after three years, therefore, from every angle the suit filed by the plaintiffs is beyond the prescribed period of limitation, therefore, the judgment cited by learned counsel for the respondents is not applicable. 25. Learned counsel for the respondents has cited the judgment of Apex Court in the matter of Daya Singh and another Vs. Gurdev Singh (dead) by LRS, and others, (2010) 2 SCC 194 in which it has held that while considering the question that mere adverse entry in revenue records if gives rise to cause of action, it has been held that the right to sue accrued when there is clear and unequivocal threat to infringe a right. In the present case the plaintiffs have challenged the right of defendants which accrued to them on the basis of accrual of rights of occupancy tenant which was admitted by the plaintiffs before revenue Court, therefore, the judgment cited by learned counsel for the respondents has no applicability to the present case. Thus, learned Court below has erred in law in holding that the suit of plaintiffs is within limitation. Accordingly, substantial question of law No. 2 is answered in favour of appellant. REGARDING SUBSTANTIAL QUESTION OF LAW NO.3 26.While considering the substantial question of law No. 1 it has been mentioned that the plaintiffs in their reply before the revenue Court, certified copy of which is Ex-D/1, Mishri Bai and Kiran Bai appeared before the revenue Court after notices being issued by them, certified copy of which are Ex-D/2 and Ex-D/3, plaintiffs signed the order-sheet of revenue Court, certified copy of which is Ex-D/4. Name of appellant has been mutated in the revenue record in compliance of order dated 27.7.1995 which is apparent from the certified copy of Khasra Ex-D/10 to Ex-D/17. The appellant has also erected a tubewell on the disputed land. Name of appellant has been mutated in the revenue record in compliance of order dated 27.7.1995 which is apparent from the certified copy of Khasra Ex-D/10 to Ex-D/17. The appellant has also erected a tubewell on the disputed land. The plaintiffs themselves have not appeared personally for the evidence and for denial of suit fact, the evidence of power of attorney is not sufficient.The power of attorney holder Ashok Thakur has no power to state the fact that the notice and order-sheet of revenue Court does not appear the signature of plaintiffs. There is no allegation that some order of revenue Court has been obtained by personation of plaintiffs and plaintiffs have not challenged the order of Tahsildar for more than 7 years even after mutation of name of defendants and erection of tubewell by them, therefore, the act of plaintiffs themselves is sufficient to prevent them from challenging the order of Tahsildar in civil suit and challenging title of appellant on the basis of principle of estoppel. The plaintiffs are bound by the admission made by them in the proceedings before Tahsildar. Therefore, learned lower appellante Court has erred in decreeing the suit overlooking the admission made by the plaintiffs. Accordingly, the substantial question of law No. 3 is answered in favour of appellant. 27. Learned counsel for the respondents have cited the judgment passed in the matter of Amiya Bala Dutta and others Vs. Mukut Adhikari and others. (2011)11 SCC 628 in which it has been held that learned lower appellate Court after analysis and appreciation of evidence reversed tha trial Courts order holding that there was sufficient evidence on record to prove respondents/plaintiffs title and no perversity in approach is pointed out. The High Court in second appeal rightly refused to interfere with the judgment of appellate Court. But in the present case it has been held that learned lower appellate Court has erred in decreeing the suit in favour of plaintiffs overlooking the admission made before the revenue authority and futher overlooking the authority of power of attorney to file the suit, therefore, the judgment cited by learned counsel for the respondents is not applicable in the present facts and circumstances of the case. 28. Learned counsel for the appellant has cited the judgment of this Court in the matter of Muktabai (Smt.) Vs. Kanubhai and others. 28. Learned counsel for the appellant has cited the judgment of this Court in the matter of Muktabai (Smt.) Vs. Kanubhai and others. 1994 RN 330 in which it has been held that even in the case of lease for non-agriculture purpose, definition of lease is defined under section 168 of the Act, cannot be considered by applying other provisions of law for interpretation of lease. 29. Learned counsel for the respondents has submitted that the question framed in substantial question of law No. 3 does not fall within the definition of substantial question of law. In support of his arguments he has placed reliance on the judgment of this Court in the matter of Bipta Bai (Smt.) Vs. Smt. Shipra Bai, ILR (2009) MP 1402 in which it has been held that substantial question of law “whether the lower appellate Court erred in law in reversing the judgment and decree passed by the Trial Court” could not be treated to be the substantial question of law under section 100 of Code of Civil Procedure. In the present case the substantial question of law has been framed on the basis that whether the lower appellate Court has erred in decreeing the suit overlooking the admission made by the plaintiffs which were binding on the plaintiffs, therefore, it is not mere ‘question of law’ but it is substantial question of law, therefore, this judgment has no applicability to the attending facts and circumstances of the case. 30. Therefore, under the above circumstances since all the three substantial questions of law framed in this appeal are answered in favour of appellant and against the respondents hance the appeal filed by the appellant is allowed, judgment and decree passed by learned lower appellate Court is hereby set aside and the judgment of learned trial Court is set aside so far as it is concerned to counter claim of defendant/appellant, the suit filed by the plaintiffs is hereby dismissed and the counter claim filed by defendant No. 3 is allowed as follows: A. Appellant/defendant No. 3 is declared bhumiswami of the land survey No. 230/1 min 2/2 area 4 bigha 212 biswa situated at Village Fatehpur District Shivpuri. B. Appellant/defendant No. 3 is entitled to get possession over the above mentioned land back from the plaintiffs. C. Since there is no relief regarding mesne profits, therefore it cannot be considered. B. Appellant/defendant No. 3 is entitled to get possession over the above mentioned land back from the plaintiffs. C. Since there is no relief regarding mesne profits, therefore it cannot be considered. D. Respondents No. 1 and 2 shall bear their own cost and the cost to the appellant also. Counsel fee be calculated according to rules, if pre-certified.