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2013 DIGILAW 314 (ALL)

Shesh Narain Pandey and Others v. Raj Kishori

2013-01-28

ARVIND KUMAR TRIPATHI II

body2013
Arvind Kumar Tripathi (II), J.— 1. Heard Mohd. Arif Khan, Senior Advocate assisted by Mohd. Aslam Khan, learned counsel for the appellants and Sri Madhur Kant Srivastava, learned counsel for the respondent. 2. This second appeal has been preferred by the appellants against the judgment and decree dated 19.8.1980 passed in Regular Civil Appeal No. 63 of 1979 confirming the judgment and decree dated 31.3.1979 in original suit no. 21 of 1978 by which the plaintiffs suit for cancellation of sale deed executed by Ranchor Tikam Nanth in favour of defendant no.1 and 2 in respect of house in suit and also for permanent injunction restraining the defendants from interfering with the plaintiff's possession over the House No. 1 and 2 situated in Mohalla- Chaudharana of town area Jais, Pargana Rokha, District Rae Bareli and shown by letter BDC PEF in the Commissioner's map of paper no. 32 C 2 was decreed. 3. Original suit no. 21 of 1978 was filed by Smt. Raj Kishori and against Shesh Narain Pandey, Vyas Narain and Ram Samujh for cancellation of sale deed executed by Ranchor Tikam Nath in favour of Shesh Narain Pandey and Vyas Narain dated 4.11.1976 and for permanent injunction against the defendants directing them not to interfere in the possession of the plaintiff over the house in suit. It has been mentioned in the plaint that Gokul Prasad had two sons Vishesh Dayal and Gaya Prasad. Vishesh Dayal has one son Vishwanath Prasad, Vishwanath Prasad had two issues, one son and one daughter Gurudin and Raj Kishori. Gaya Prasad had one son Sheonath Prasad and Sheonath Prasad had three sons Ranchor Tikam Nath, Tribhuwan Nath and Shashi Bhushan Nath. It has been alleged that Vishwanath Prasad was the owner of the disputed house and he died issueless. So, Gurudin became the owner and heir. Gurudin was issueless and after his death Smt. Raj Kishori inherited the house as heir of the Gurudin. This is shown with the letters BDC PEF and the boundaries are east of the house of Devi Prasad and Shyam Kishor. West sahan Makan afterwards road, north lane after that wheat mill and Fulwari of Naresh Chand and on south hosue of Vishwanath Prasad in possession of Ram Kalap Pandey. 4. This is shown with the letters BDC PEF and the boundaries are east of the house of Devi Prasad and Shyam Kishor. West sahan Makan afterwards road, north lane after that wheat mill and Fulwari of Naresh Chand and on south hosue of Vishwanath Prasad in possession of Ram Kalap Pandey. 4. It was further alleged that the ancestral house of Sheonath Prasad and Vishwanath Prasad existed towards south of disputed house and after death of Sheonath, Ranchor Tikam, Shashi Bhushan and Tribhuwan Nath became the owner of his share and Gurudin became owner of the share of Vishwanath Prasad and after death of Gurudin, Smt. Raj Kishori became owner of the share of the Gurudin. 5. It was further alleged that Ranchor Tikam Nath had wrongly sold the entire ancestral house on 21.5.1976 and plaintiff is not bound by that. Likewise the disputed house was purchased by Ram Samujjh, father of defendant no.1 and 2 knowing it fully well that Ranchor Tikam Nath has no share in the disputed hosue and plaintiff is exclusive owner of it, from Ranchor Tikam Nath on 4.11.1976. The parents of defendant no.1 and 2 have wrongly been mentioned as Raja Ram Pandey while Raja Ram Pandey is the grand father of defendant no. 1 and 2. On this basis of this sale deed Ram Samujh and defendants no.1 and 2 tried to take possession of the hosue and demolished some part of southern wall and one room and verandah and took away some household goods. They also threatened Ram Raj Singh, who is also tenant, to vacate the house. Plaintiff claimed cancellation of the sale deed and also sought injunction. 6. Defendants filed a written statement alleging that the disputed house belongs to Ranchor Tikam Nath and after purchase, defendant no.1, 2 and 3 are in possession. Plaintiff resides in her Nanihal. This house was constructed by Ranchor Tikam Nath and he was owner in possession of the house. Written statement was amended later on and it was added that Ranchor Tikam Nath also became owner in possession of the hosue on the basis of adverse possession by being in possession for more than twelve years. Learned trial court framed following issues : (i) Whether Bishwanath of the pedigree given in paragraph-I of the plaint was exclusive owner of the disputed house as alleged in the plaint? Learned trial court framed following issues : (i) Whether Bishwanath of the pedigree given in paragraph-I of the plaint was exclusive owner of the disputed house as alleged in the plaint? (ii) Whether the plaintiff inherited the hosue in suit from her brother Gurudin as alleged in the plaint and is in possession over it through her tenants? (iii) Whether the defendant no.3 demolished the southern wall, varandah and a room of the disputed house on 19th of February 1978 as alleged? If so, its effect? (iv) Whether Ranchor Tikam Nath had no title or interest in the disputed house. If so, is the sale-deed dated 4.11.1976 executed by Rachor Tikam Nath in favour of defedants 1 and 2 is liable to be cancelled? (v) Whether the defendants 1 and 2 are bonafide purchaser for value without notice? If so, its effect? (vi) Whether the plaintiff's suit for cancellation of the sale deed is not maintainable for want of her possession as alleged in paragraph-14 of the W.S.? (vii) Whether the suit is barred by estopple as alleged in paragraph 13 of the W.S.? (viii) To what relief, if any, is the plaintiff entitled? (ix) Whether the sale deed dated 4.11.1976 in suit is collusive, fraudulent and without consideration? If so, its effect? (x) Whether Ranchor Tikam Nath had matured his ownership through adverse possession as alleged in the written statement? If so, its effect ? After going through the evidence and papers learned lower court decreed the suit. Feeling aggrieved, first appeal was filed which also was dismissed and the judgment and order of the trial court was confirmed. Feeling aggrieved this second appeal has been filed. 7. This Court has on 19.12.2011 framed following substantial question of law : "Whether the appellant would be entitled for the benefit of Section 41 of the Transfer of Property Act." 8. It was argued from the side of appellant that the apex court has in various judgments laid down that without framing points for determination and strict adherence of the provisions of order 41 Rule 31 C.P.C., the first appellate court which is a final court of fact, must not record general expression of concurrence with the trial court, rather it must give reasons for its decision on each point independently to that of the trial court and non-compliance vitiates the judgment. It was also submitted that trial court as well as appellate court have erred in law in placing reliance on the municipal records while recording finding that Vishwaqnth Prasad was the owner of the house and on his death, the house in dispute was inherited by his son and thereafter, it was inherited by the respondent. Municipal records are not document of title and both the courts below by placing reliance on the municipal records have illegally held Vishwanath Prasad to be the owner of the house in dispute. The entry of 1973 in municipal records is irrelevant. 9. It was also submitted that while exercising the powers under Section 100 C.P.C the High Court is under a duty to examine entire relevant evidence on the record and if it refuses to consider the important evidence having direct bearing on the disputed issue or by essential erroneous approach of the matter and the error which arises is of a magnitude that it gives birth to a substantial question of law and in these circumstances, High Court is fully authorised to set aside the findings. 10. It was also submitted that both the lower courts have erred in law in drawing a presumption on surmises and conjectures that since Vishwanath Prasad constructed a Dharmshala in the year 1991. He must have constructed a house to live. This finding is without any evidence. It was also submitted that house tax receipts are not indicative of title of the respondent. Respondent has failed to prove how Smt. Raj Kishori had right or title over the house in question and thus the suit was liable to be dismissed. The trial court and the first appellate court has erred in holding that defendant could not prove his right or title over the house in question. 11. In response to this submissions, it was argued from the side of respondent that the findings recorded by both the courts are based on evidence. Concurrent finding of both the courts cannot be disturbed in second appeal. It was also submitted that where the appellate court has considered the entire evidence on record and discussed the same in detail and come to any conclusion and its findings are supported by reason even though the point has not been framed by the appellate court. Concurrent finding of both the courts cannot be disturbed in second appeal. It was also submitted that where the appellate court has considered the entire evidence on record and discussed the same in detail and come to any conclusion and its findings are supported by reason even though the point has not been framed by the appellate court. There is substantial complaince of the provisions of order 41 Rule 31 C.P.C. and the judgment is not in any manner vitiated by the absence of a point of determination. It was also submitted that when there is an honest endeavor on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations bearing on both sides is clearly manifest by the perusal of the judgment of lower appellate court, it would be a valid judgment even though it does not contain the point of determination. 12. It was also submitted that the point of law framed by the appellalnts in their memo of appeal are not the substantial question of law and thus the appeal is liable to be dismissed. 13. I have gone through the evidence on record and also through the rival submissions and various decisions submitted by the parties. 14. First of all the substantial question of law which was framed by this Court at that time of the admission will be decided. The substantial question of law is as framed by this court is whether the appellant would be entitled for the benefit of Section 41 of Transfer of Property Act. 15. After going through the provisions of Section 41 of the Transfer of Property Act, the following are ingredients of Section 41 of the Transfer of Property Act, which are required to satisfied before the benefit of purchase in the case of sale by a person who is not the owner is given to the purchaser :- "1. That the transferor is the ostensible owner. 2. He is so by the consent express or implied of the real owner. 3. The transfer is for consideration and 4. The transferee has acted in good faith taking reasonable care to ascertain that transferee had power to transfer." 16. That the transferor is the ostensible owner. 2. He is so by the consent express or implied of the real owner. 3. The transfer is for consideration and 4. The transferee has acted in good faith taking reasonable care to ascertain that transferee had power to transfer." 16. It is neither the pleading nor the case of appellants that Ranchor Tikam Nath was the ostensible owner and he was so by the consent either by express or implied consent of the real owner. In this case, Ranchor Tikam Nath is alleged to be the actual owner. So the ingredients nos. 1 and 2 of Section 41 of Transfer of Property Act are not satisfied. Now it is to be dealt as to whether the transferee has acted in good faith having reasonable care to ascertain the transferor held power to transfer. In this context, evidence of D.W. 1 is very material. The matter has been dealt with by the trial court while deciding issue no.5. 17. The trial court has held that there is no evidence to show that defendant no.3 i.e. Ram Samujh made requisite inquiry about the ownership of the disputed house. He himself has stated that he did not inspect the record of the town ara and other records of ownership. 18. Ram Samujh while examining himself as D.W.1 admitted in his cross-examination that he has enquired from the Ex-Chairman of town area and he does not know his name. He has further admitted that the other persons from whom he enquired are except Nageshwar Pandey alive. Ram Samujh has not examined any of the persons from whom he has enquired to prove that he tried to check the ownership of the disputed house. He has further admitted in his cross-examination that before purchasing the disputed house, he did not inspect the record of the Town Area. He has further stated that Ranchor Tikam Nath had informed him that he is paying the house tax but the receipt was not with him. This witness had further admitted that he did not enquire from the Town Area regarding Ranchor Tikam Nath paying the house tax. He tried to enquire after filing of the suit but he could not get the certified copy till his statement in the Court. He has further admitted that he has not moved any application in the town area but had orally enquired. He tried to enquire after filing of the suit but he could not get the certified copy till his statement in the Court. He has further admitted that he has not moved any application in the town area but had orally enquired. He has further submitted that when he enquired, he came to know that Vishwanath Chaudhary was resident of Mohalla Jais and his son was Gurudin. 19. If the evidence of Ram Samujh D.W.1 be considered in the light of above, the only conclusion is that Ram Samujh has not enquired about the ownership of the disputed house. 20. In the case of Mehdi Hasan Vs. Ram ker reported in AIR 1982 Allahabad 92, it has been held that : "23. In the present, case it is clear from the statement of defendant-respondent Ram Ker in the witness box that he did not make due enquiry as was expected of him in law. From the statement made by him during his cross-examination, it is clear that the terms with the plaintiff and his deceased brother were very cordial and they were on visiting terms. Further that they used to consult each other in their respective affairs. It was also stated by him that after the death of Ali Abbas, there used to be frequent disputes between the plaintiff and Smt. Khatibunnisa and whenever he was available, he used to assist in settling their disputes. He also stated that he did not find out about the fact as to whose name was agricultural plots after his death. He disclaimed knowledge about any dispute between the plaintiff and Smt. Khatibunnisa after the death of Ali Abbas in reagard to the latter's share in the civil court. He gave out that he found the name of /smt. Khatibunnisa recorded over the plot in dispute but acknowledged that he never attempted to find out whether there was any dispue between the plaintiff and Smt. Khatibunnisa about these plots during consolidation proceedings. It is clear that the defendant-respondent did not act like a klprudent person nor did he make proper enquiry before obtaining a sale deed from Smt. Khatibunnisa. Khatibunnisa recorded over the plot in dispute but acknowledged that he never attempted to find out whether there was any dispue between the plaintiff and Smt. Khatibunnisa about these plots during consolidation proceedings. It is clear that the defendant-respondent did not act like a klprudent person nor did he make proper enquiry before obtaining a sale deed from Smt. Khatibunnisa. The mere fact that the name of Smt. Khatibunnisa was recorded at the relevant time in the revenue papers was not enough in law to enable the defendant-respondent to plead that he was a bona fide purchaser of the property for value and taht the sale deed in his favour could not therefore, be assailed. " 21. From the above decisions and above discussions, it is clear that the finding recorded by the trial court regarding SCC.41 of Transfer of Property Act is based on evidence. The first appellate court has also considered these aspects and has also held that : "In order to claim benefit of Section 41 of Transfer of Property Act the defendants were required to prove that Ranchor Tikam Nath was ostensible owner and with the consent express or implied of the plaintiff or his brother Guru Din. From the statement of D.W.3 Ram Samujh, it also does not appear that he made any bonafide enquiries about the title of the house in question before purchasing it from Ranchor Tikam Nath. He cannot therefore be said to have acted in good faith in getting the sale deed of the house executed in favour of his minor sons." 22. In view of this, there is concurrent finding against appellants and hence there is no occasion to disturb the finding given by both the trial court and first appellate court. 23. Learned counsel for the appellant also argued that non complaince of the order 41 Rule 31 C.P.C is also a substantial question of law. In support of his argument learned counsel has relied upon the case of these Courts, H.Siddiqui Vs. Romalingam (2011) 4 SCC 240 , Ved Ram Vs. Harish Charda and Others 2005(23)LCD 604, Dinesh Kumar Vs. Yusuf Ali 2010(28) LCD 897, Dilbagrai Punjabi VS. Sharad Chand AIR (1988) SC.1858, Jagdish Singh Vs. Nathu Singh (1992)1 SCC 647 , NG.Vidyarthi Vs. Rajat Vidyarthi 2010 (28) LCD 703. 24. In the case of H.Siddiqui Vs. Romalingam (2011) 4 SCC 240 , Ved Ram Vs. Harish Charda and Others 2005(23)LCD 604, Dinesh Kumar Vs. Yusuf Ali 2010(28) LCD 897, Dilbagrai Punjabi VS. Sharad Chand AIR (1988) SC.1858, Jagdish Singh Vs. Nathu Singh (1992)1 SCC 647 , NG.Vidyarthi Vs. Rajat Vidyarthi 2010 (28) LCD 703. 24. In the case of H.Siddiqui Vs. Romalingam (supra) it has been held that : "The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after 1formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146 ; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary." 25. In the case of Ved Ram Vs. Harish Charda and Others (supra) it has been held that : " 7. The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory. The first appellate Court while delivering the judgment is required to set out the points for determination, record the decision thereof and give its own reasons for the said decision. Harish Charda and Others (supra) it has been held that : " 7. The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory. The first appellate Court while delivering the judgment is required to set out the points for determination, record the decision thereof and give its own reasons for the said decision. Looking at the plain language of the section, it is clear that failure to comply with this provision would not be a mere irregularity but would render the judgment nugatory. The first appellate Court being the last fact finding Court cannot run away from its onerous duties of recording the finding of fact and discussing the evidence and recording the findings of fact. In 1979 AWC 687 : (1979 All LJ (NOC) 110), Smt. Damyanti Devi v. Brindaban it was held - "Where the judgment of the appellate Court is of reversal, the appellate Court should consider all the relevant and material evidence on record and thereafter give reasons for the said decision." 8. In Keluni Dei v. Kanhei Sahu, AIR 1972 Orissa 28, it was held - "It is incumbent upon the final Court of fact, particularly in the case of reversing decision this is an instance of reversal as all the material findings were being reversed to meet the reasonings of the trial Court and indicate its own reasons for the conclusions to be reached." 26. In the case of Dinesh Kumar Vs. Yusuf Ali (supra) it has been held that : "Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the evidence on record recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence. The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent." 27. In the case of Dilbagrai Punjabi VS. The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent." 27. In the case of Dilbagrai Punjabi VS. Sharad Chand (supra) it has been held that : "The Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. Such was the situation in the case." 28. In the case of Jagdish Singh Vs. Nathu Singh (supra) it has been held that : " As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. We find no substance in the first contention." 29. In the case of NG.Vidyarthi Vs. Rajat Vidyarthi (supra) it has been held that : " One of the issues which arose for consideration before the High Court was as to whether the property in question was a joint family property. The learned Trial Judge answered the question in the affirmative. The same was reversed by the first appellate court. A finding of fact arrived at by the first appellate court is ordinarily final. Its correctness can be questioned if, inter alia, the same was based upon no evidence or is otherwise perverse or that correct legal principles were applied. The question formulated, namely, as to whether the property in dispute is a Joint Hindu Family property, per se, is not a substantial question of law." 30. Learned counsel for the respondent, while refuting the arguments relied upon the case of these Courts, Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and Others AIR 1999 Supreme Court 2213 and Gurdev Kaur & Others V. Kaki & Others AIR 2006 Supreme Court 1975. 31. in the case of Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and Others (supra) it has been held that : " 5. 31. in the case of Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and Others (supra) it has been held that : " 5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence." 32. in the case of Gurdev Kaur & Others V. Kaki & Others (supra) it has been held that : "70. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. 71. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law." 33. We would like to reiterate that the justice has to be administered in accordance with law. 71. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law." 33. A perusal of the provisions of order 41 Rule 31 denotes that: A. appellate court shall in his judgment, state the points for determination B. the decision thereon C. the reasons for the decision and D. whether the decree appealed from the reversed or varied the relief to which the appellant is entitled. 34. A perusal of the judgment of the first appellate court reveals that learned first appellate court has while deciding the first appeal has mentioned that "three points" have been argued on behalf of the appellants in this appeal. The first is that the plaintiff failed to prove his ownership of the house in question, the second is that she failed to prove her possession over the house in question and, therefore, the suit framed was not legally maintainable and the third is that the defendants are bona fide purchaser for value without notice of the plaintiff's title and which therefore, entitled to protection of Section 41 of Transfer of Property Act. 35. The plaintiff in support of her case examined herself, P.W.2 Ram Raj Singh and P.W.3 Mahadeo Prasad. The plaintiff in her examination - in- Chief supported the allegations made in the plaint and denied that of the written statement. She has stated out that disputed house was constructed by her father and that the house towards the southern side of the disputed house was the ancestral house of her father and in that house Ranchor Tikam Nath used to reside. This ancestral house was sold by Ranchor Tikam Nath to one Ram Kalp Pandey although he was only a co-sharer in the house. She further stated that her younger son Vishnu Dayal is residing in the house in question since about 7 years and is looking after it. A portion of this house was let out by Vishnu Dayal. She denied the suggestion that the house in question was in possession of Ranchor Tikam Nath and he was using it for tethering his cattle. A portion of this house was let out by Vishnu Dayal. She denied the suggestion that the house in question was in possession of Ranchor Tikam Nath and he was using it for tethering his cattle. She has stated in cross-examination that towards the eastern side of the disputed house is the house of one Chhiddan.She denied the suggestion that her ancestral house existed towards the eastern side of the house of Chhiddan. She also denied that the house sold by Ranchor Tikam Nath to Ram Kalap was constructed entirely by him. 36. The fact as to whom, the house, sold by Ranchor Tikam Nath to Ram Kalap, belonged and who constructed it is not material for the purposes of this case because that house is not in dispute in these proceedings. 37. P.W.2 Ram Raj Singh is a teacher since August 1972 in Malik Mohammad Higher Secondary School Jais. He had taken on rent one room in the same house. Defendant No.3 is also employed as a teacher in the same house. He was paying Rs. 15/- per month as rent. He proved the counter-foils of the receipts issued by Vishnu Dayal to him and gave out that one Electrical Inspector was also tenant in this house and for the last about one year one student Kamlesh Kumar Singh is also living as tenant in a room of this house. In his cross-examination he gave out that for the last about one year he is living in the Boarding House and that a burglary was committed in his house about a year back. He stated that some of his articles are still lying in the room. He also stated that he became tenant in in the month of April 1975 and that he was being given receipt each month. 38. P.W.3 Mahadeo Prasad is a resident of the Mohalla in which the house in dispute is situated. He has stated that the only one house intervenes in between his house and the disputed one and that the distance in between the two house is about 250 paces.He deposed that the disputed house was constructed by Vishwanath Prasad about 40 years back and that Ranchor Tikam Nath had nothing to do with it. After the death of Vishwanath Prasad, Guru Din resided in the house. 39. After the death of Vishwanath Prasad, Guru Din resided in the house. 39. The first appellate court has independently examined the entire relevant evidence on record and given a categorical finding on each of the points argued by the appellants' counsel. 40. This clearly goes to show that the first appellate court was conscious as to what are the points for determination as the first appellate court has accordingly analyzed the evidence and documents on record. In view of this and also onthe guidelines by Apex Court in case of H.Siddiqui Vs. Roomalingam(supra) this is sufficient compliance of order 41 Rule 31 C.P.C. 41. As has been held by Apex Court in Kondiba Dagadu Kadam case (supra) the High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or it is settled position on the basis of pronouncement made by the Apex Court. 42. It was vehemently argued by learned cousnel for the appelalnt that both the courts below have wrongly shifted the burden of proof on the defendants. Learned counsel has relied upon the case of Savitri and Ors. V. Surendra Mohana (1987) LCD 137. In this case it has been mentioned that plaintiffs could only succeed on the strength of their title. 38. In reply to this argument learned counsel for the respondent has relied upon the case of Arumugham V. Sundarambal AIR 1999 Supreme Court 2216 in which it has been held by apex court that: "16. On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Section 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether. In the present case both sides had adduced oral as well as documentary evidence and therefore even assuming that it was erroneous for the lower appellate court to say that the burden of proof lay on the first defendant to prove that the plaintiff was not the son of the Haritheertham, that would not, in our opinion, have any material bearing on the conclusion reached by the lower appellate court." 43. In this case too both parties have adduced oral and documentary evidence. It cannot be said that plaintiff has failed to adduce any evidence altogether. Plaintiff has examined herself on oath and she has been cross-examined at length. It has nowhere been denied that she is not the daughter of Vishwanath Prasad and sister of Gurudin. It has not been denied any way that Gurudin did not inherit the property of his father on his on death and after him, Raj Kishori Devi. Thus when there is a positive assertion of the plaintiff that the disputed house belonged to Vishwanath Prasad then it was the duty of defendant to show that the house did not belong to Vishwanath Prasad but to Ranchor Tikam Nath. Defendants have not adduced any documentary evidence to show that the Ranchor Tikam Nath was the owner of the disputed house. In fact, the plaintiff has specifically stated that her father was Vishwanath Prasad and Gurudin was her brother. She has specifically stated that disputed house was built by her father and to the south of disputed house, her father's ancestral house was situated. It has also been categorically stated that when her father built the disputed house, he started living in the disputed house and Ranchor Tikam Nath was living in the ancestral house. It has also specifically been stated that the disputed house was constructed 40 years earlier by his father and he also constructed the well in the house. In her cross-examination she has stated that when the house was constructed her age was 20 years and she has also specifically stated that Ranchor Tikam Nath has constructed a part of ancestral hosue which became dilapidated. This fact has been supported by Ram Raj Singh PW.2 who is a tenant in the disputed house. In her cross-examination she has stated that when the house was constructed her age was 20 years and she has also specifically stated that Ranchor Tikam Nath has constructed a part of ancestral hosue which became dilapidated. This fact has been supported by Ram Raj Singh PW.2 who is a tenant in the disputed house. P.W 3 Mahadev Prasad is a permanent resident of the same Mohalla in which the disputed house situated in and he had stated that this house was constructed by Vishwanath Prasad about 40 years earlier and the ancestral house of Vishwanath Prasad was towards south of the disputed house and Ranchor Tikam Nath had no concern with the disputed house. Against this D.W.1 is the person who has purchased the disputed house in favour of his sons from Ranchor Tikam Nath. This witness has stated that this house was constructed by Ranchor Tikam Nath. But he has not given the basis of this statement . He is the witness who has not enquired from the Municipal records about the house. He has specifically admitted that he has enquired from other persons. He has not produced any of the persons from whom he enquired about the ownership of the house. None of the persons have come to testify about the truthfulness of this witness regarding enquiry. 44. From the above it is clear that trial court and first appellate court have very thoroughly examined and discussed the evidence on record and given a finding. In view of this as the findings given by trial court and first appellate court are findings of facts, these findings are not perverse and are based on evidence and no interference is warranted. 45. Lot of emphasis was given by learned counsel for the appellant that courts have relied upon Nagarpalika records for title of the disputed house and receipts to show that Vishwanath Prasad and Gurudin and later on Rajkishori Devi were owenrs of the property. Several rulings have been cited but a perusal of the evidence and judgment reveals that plaintiff has proved her case on the basis of her evidence. Several rulings have been cited but a perusal of the evidence and judgment reveals that plaintiff has proved her case on the basis of her evidence. No doubt enteries in Nagarpalika or town area register are not evidence for title and is only indicative of the fact as to from whom taxes are to be realized but definitely it draws a presumption, in absence of any other evidence that the person whose name is entered into Nagarpalika or town area register is in possession of the disputed property. 46. In the case of Hero Vinoth (minor) V. Sesha Mall AIR 2006 Supreme Court 2234, it is held that : "(i) An inference of fact from the recitals or contents of a documents is a question of fact. But the legal effect of the terms of a document is question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therfore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal lprincples emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise ina contrary situation, where the legal position is clear, either either on account of express provisions of law or binding precedents, but the court below had decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on material question, violates the settled position of law - (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on material question, violates the settled position of law - (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When Court refers to 'decision based on no evidence', it not only refers to cases where referred there is a total dearth of evidence, taken as a whole, is not reasonably capable of supporting the finding." 47. Judging the above guidelines, it is very clear that substantial question of law and general question of law are two different things. The substantial questions of law framed by the petitioner and the appellant in memo of appeal are only question of fact or question of law. They Cannot be termed as substantial question of law. 48. From the above discussion it is clear that both the courts' findings are based on evidence and are not illegal or perverse. 49. In view of this the second appeal is devoid of merit and is liable to be dismissed and is hereby dismissed accordingly. _____________