Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 904 (GAU)

Abed Ali and Ors. v. Uzir Ali

2014-09-23

P.K.SAIKIA

body2014
1. This second appeal is against the judgment dated 26.3.2007 as well as decree dated 27.3.2007 passed by Munsiff No.1, Barpeta in T.S. No. 87/ 2005 and the judgment dated 25.6.2008 as well as decree dated 8.7.2008 passed by P. Saikia, Civil Judge, Barpeta in T.A. No. 20/2007 affirming the judgment rendered by Munsiff No.1, Barpeta in T.S. No. 87/2005 dismissing such suit. 2. This second appeal was admitted for decision on the following questions of law : "1. Whether the learned courts below committed an error in decreeing and affirming the decree of delivery of khas possession of the suit land to the plaintiff in excess of the plaintiffs claim viz., 1B, 13L in place of 1K, 13 L? 2. Whether the findings of both the courts below that the suit land is included in the plaintiffs patta is a finding based on no evidence"? 3. The brief facts necessary for disposal of the present appeal are that 3 plots of land measuring (a) 0B-2K-0Ls, (b) 0B-3K-8Ls and (c) 0B-lK-5Ls are the suit lands. While the land in SI. No. (a) is covered by Dag No. 986 in Patta No. 160, the land in SI. No.(b) is covered by Dag No. 988, KP Patta No. 73. On the other hand, the land in SI. No. (c) is covered by Dag No. 988 of KP No. 73. Such lands are situated at Howly town, Mouza - Ghilazari in the District of Barpeta. The land in SI. Nos. (a), (b) and (c) are described, more accurately in Schedules A, B, and C to the plaint, respectively. 4. Plaintiff in T.S. No. 87/2005 is the respondent in the present appeal. On the other hand, appellants herein are defendants in aforesaid Title Suit. For convenience of discussions, the respondent and appellants would be referred to herein after as plaintiff and defendants, respectively. 5. It is alleged that the land in Schedule A was originally purchased by one Ganesh Saha in the year 1967. Thereafter, the plaintiff purchased such land on the strength of sale deed No. 5821/70 and came to occupy such land. In due course, his name was mutated in the relevant records of right. 5. It is alleged that the land in Schedule A was originally purchased by one Ganesh Saha in the year 1967. Thereafter, the plaintiff purchased such land on the strength of sale deed No. 5821/70 and came to occupy such land. In due course, his name was mutated in the relevant records of right. The land, prescribed in Schedules B and C to the plaint was inherited by plaintiff from his father and in due course, the land described in B and C Schedules too fell to his part as being his inherited properties. The defendant, namely Abed Ali, had his land on the western and southern side of the aforesaid land. 6. In month of April 2002, the defendants erected bamboo fence encroaching 30 feet land on the eastern side of the suit land. On his protest, the defendants replied that they would vacate the land subject to demarcation made by the Revenue Officer. In due course, the plaintiff took necessary step to get his land demarcated. On such demarcation, the land of the plaintiff was found being encroached upon by the defendants. On a request being made by plaintiff, the defendant did not show any interest in vacating the land which was under their illegal occupation. 7. Having found no other way out, the son of the plaintiff filed several petitions same being Petition No. 390/04-05 in respect of KP Patta No. 73 and petition No. 299/04-05 in respect of KP No. 160 before the concerned Revenue Authority to get his land demarcated. Responding to such request, the Revenue Authority demarcated the land in question and found that the defendants had encroached a patch of land about 30 feet by breath on western side and a patch of land about 20 feet by breath on the southern side. 8. The land which was so encroached by the defendants was described in the Schedule D to the plaint. The plaintiff, therefore, approached this court seeking a decree for evicting the defendants from the suit land. The summon of the suits were served on the defendants. The defendants entered appearance and having filed written statement contested the suit. 9. According to them, the father of the defendant late Sader Ali purchased the land measuring 1K-8L out of 4B-2K-7L covered by Dag No. 946 by registered Sale Deed No. 4899 which was followed by delivery of possession. The summon of the suits were served on the defendants. The defendants entered appearance and having filed written statement contested the suit. 9. According to them, the father of the defendant late Sader Ali purchased the land measuring 1K-8L out of 4B-2K-7L covered by Dag No. 946 by registered Sale Deed No. 4899 which was followed by delivery of possession. After the death of the father, the present defendants inherited such land which includes the land described in Schedule D to the plaint and have been enjoying such properties without any interference from any quarter whatsoever. 10. At no point of time, they came to occupy the land described in Schedule D to the plaint by dispossessing the plaintiff from such land. The defendants, therefore, urge the court below to dismiss the suit. Upon hearing the parties the court below had framed the following issues : "1. Whether there is cause of action for the suit? 2. Whether the plaintiff has right, title and interest over the suit land? 3. Whether the defendants encroached the 'D' Schedule land? 4. Whether the plaintiff is entitled for the decree of 'khas' possession of 'D' Schedule land? 5. Whether the plaintiff is entitle for the decree as prayed for in the suit? 6. To what other relief(s) the parties are entitled?" 11. Both the parties adduced evidence to support their respective claims. On hearing the parties, the learned trial court had found that there was no dispute over the possession or the title thereof so far land, described in Schedules A, B and C to the plaint are concerned. However, both the sides laid contradictory claims over the title and possession of land described in Schedule D to the plaint. 12. While the plaintiff claims that he is the owner of the land, described in Schedule D to the plaint and had been in the possession the same since long, the defendants claim to be the owners and possessors of the land, so described in Schedule D to the plaint. 13. Since both the parties laid their claims over the land described in Schedule D to the plaint, the court below was pleased to issue Commission under order 26, rule 9 requiring the Commissioner to conduct survey of the suit land with the following direction : "6. 13. Since both the parties laid their claims over the land described in Schedule D to the plaint, the court below was pleased to issue Commission under order 26, rule 9 requiring the Commissioner to conduct survey of the suit land with the following direction : "6. That the commission does appointed is directed and instructed upon the application of the plaintiff to make a survey of the entire suit land shown in Schedules A, B and C after ascertaining its location from any survey post or pillar and thereafter to ascertain whether the defendants are in occupation of the part of the suit land as described in the Schedule D or any part of the suit land and if so to what extent." 14. The Commissioner, so appointed, visited the suit land and on giving proper notice to the parties measured the land. On such measurement, the Commissioner found that the land, described in Schedule D to the plaint measuring 1K-13L in Dag No. 986 of Patta No. 160 and in Dag No. 985 of Patta No. 73 are in illegal occupation of the defendants. In due course, the report of the Commissioner was accepted. 15. On the conclusion of the trial, learned Munsiff on taking into consideration the report of Commissioner and other evidence, adduced from the side of the plaintiff came to the conclusion that the land covered by Schedule D is under the illegal occupation of defendants and same needs to be vacated. Therefore, it decreed the suit on the following terms : "11. Issue Nos. 5 and 6. These issues are clubbed up together for the convenient of discussion being the subject of relief(s). It has held above that plaintiff's has right, title and interest on the suit land, he is entitled for the decree as prayed for in the suit. In the attending facts and circumstances of the case, either of the parties are disentitled for other relief (s) except the cost of the suit granted in favour of the plaintiff." ORDER "12. In the consequences of discussions and decisions in the forgoing issue, the plaintiffs suit is decreed on contest with cost. It's declared that plaintiff has right, title and interest on the suit land. The plaintiff is also entitled for the decree of 'Khas' possession of 'D' Schedule land as described in the plaint, by evicting the defendants therefrom." 16. In the consequences of discussions and decisions in the forgoing issue, the plaintiffs suit is decreed on contest with cost. It's declared that plaintiff has right, title and interest on the suit land. The plaintiff is also entitled for the decree of 'Khas' possession of 'D' Schedule land as described in the plaint, by evicting the defendants therefrom." 16. Being aggrieved, the defendant approached appellate court alleging several infirmities in the judgment under challenge. The grounds, incorporated in the Memo of appeal are as follows : "(i) That the learned trial court not only erred in law as well as in facts in passing the impugned judgment and decree but also misconceived the fact of the case and, as such, arrived at an erroneous finding without evaluating the evidence on record. (ii) That through the respondent/plaintiff filed the suit for recovery of possessions against the appellants/defendants the question of possessing over the suit land was a vital issue in this suit for decision, but the learned trial court failed to frame the important issues and nothing was decided in his judgment and as such, the judgment is vitiated by law. (iii) That the learned Munsiff failed to decide, the issue No. 3 as the plaintiff/ respondent clearly pleaded in this pliant and also deposed before the court that the defendants/appellants land situated adjacent north and west side on the plaintiffs land but the plaintiff/respondent is not aware of on which dag the defendants/appellants encroached the plaintiff and this fact is also not known to the plaintiffs and their witnesses and that being so, the learned trial court ought to have decided that the appellants/defendants did not encroached any part of the suit land. (iv) That while the learned Munsiff appointed an Amin Commissioner to make survey of the suit land to measure the actual part of the suit land remaining under illegal occupation of the appellants/defendants. (iv) That while the learned Munsiff appointed an Amin Commissioner to make survey of the suit land to measure the actual part of the suit land remaining under illegal occupation of the appellants/defendants. As per court's order, the Circle Officer, Barpeta directed Sri Jagadish Talukdar, Lat Mandal to survey the land on his behalf and accordingly, Lat Mandal submitted the survey report and in his report the said Lat Mandal clearly stated that he did not found any survey of the suit land further they surveyed the land on the basis of PWD road, where the said PWD Lat Mandal clearly deposed before the court who was examined as court witness that his survey report may be wrong because he did not measured the land from fixed survey post. Therefore, the learned trial court ought to have deiced that the Amin Commissioner failed to survey the land as per rule and the plaintiff/respondent failed to establish the encroachment of the land of the plaintiff by the appellant/appellants. (v) For that in any view of the matter, the learned trial court did not appreciate the evidence on record properly those portion which was deposed in favour of the defendants/appellants and, as such, the judgment is vitiated by law, unfair, irregular and illegal and the judgment and decree appealed against is not only void in law but also liable to be set aside.' 17. On hearing the arguments, advanced by the learned counsel for the parties, the learned appellate court came to the conclusion that the learned trial court in decreeing the suit committed no error since he found that the Commissioner conducted the survey in accordance with the procedure established and he had rightly came to the conclusion that the land described in the Schedule D to the plaint is under illegal occupation of the defendants. The relevant part of the judgment is reproduced below : "19. In view of the pleadings of both the parties it had emerged out that there has been a boundary dispute between the plaintiff and the defendants as their lands are situated contiguous to each other. The relevant part of the judgment is reproduced below : "19. In view of the pleadings of both the parties it had emerged out that there has been a boundary dispute between the plaintiff and the defendants as their lands are situated contiguous to each other. The plaintiff has alleged that when he came to know about the encroachment some portion of his land by the plaintiff he filed a demarcation petition to get the land which was purchased by him and accordingly, lat mandal demarcated the boundaries of the suit land and found encroachment of plaintiffs suit land by the defendants from the western part as well as from the southern part of the suit land standing at lK-13Ls but the defendants refused to vacate the land so encroached by him. On the other hand, defendants have alleged that it is an admitted fact that lat mandal identified the proper boundary of the plaintiff and the defendants land but the plaintiff did not cooperate the revenue staff. Thus, the allegations and the counter allegations made by the plaintiff and the defendants in their respective pleadings have obviously show that there is a dispute as regard identity of suit properly. It is also clear that the question of the title to the suit land does not arise at all as the defendants have admitted the title of the plaintiff over the suit land. Considering the pleadings of the parties the learned trial court rightly appointed a Amin Commissioner under order 26, rule 9, CPC where it deemed a local investigation to be requisite for purpose of elucidating the matter in dispute as regards the identity of the suit properly and accordingly, a clear writ was issued by the learned trial was by the learned trial court to the Amin Commissioner to find out whether the plaintiffs land in the suit has been encroached by the defendants. Accordingly, the Amin Commissioner Sri Jagadish Talukdar, Lat Mandal, CW-1 came to be appointed to survey and measure the suit land. Accordingly, he surveyed and measured the Suit Dag Nos. 985, 986 and 998 and each surrounding dags on 18.6.2006 Ext. X is his report. Ext. X(1) is his signature, Ext. X(2) is the signature of Jabed Ali, Ext. X(3) is the trace map, Ext. X(4) is the plot sheet, Ext. X(5) is the field book, Ext. Accordingly, he surveyed and measured the Suit Dag Nos. 985, 986 and 998 and each surrounding dags on 18.6.2006 Ext. X is his report. Ext. X(1) is his signature, Ext. X(2) is the signature of Jabed Ali, Ext. X(3) is the trace map, Ext. X(4) is the plot sheet, Ext. X(5) is the field book, Ext. Y writ issued by from the court, Ext. Z report of Circle Officer, Ext. Z(1) is the signature of Circle Officer. According to the report of CW-1 Jagadish Talukdar he surveyed the entire suit and each surrounding dags as per direction contained writ Ext. Y. He has categorically stated that there is no fixed survey pillar at village Howly. He however, found a reliable survey mark from the Government PWD road situated in the north of the suit land and from a fixed point situated in the west- south of the dag No. 989 from where he reached the disputed plot and conducted survey. According to the report of CW-1 he found that 8-1/3 Ls of land in the western part of the suit land covered by dag No. 986 of P.P. Patta No. 160 and 1K-41 / 2 Ls of land in the southern part of the suit land covered by dag No. 985 of K.P. No. 73 in total lK-13Ls out of the suit land is under the occupation and possession of the defendants. On the other hand, the suit land measuring 3Ks-8Ls covered by dag No. 988 under K.P. patta No. 73 has remained in the possession of the plaintiff. The learned counsel for the appellants has challenged the Amin Commission report on the ground that the suit land and its surrounding dags were not surveyed and measured from a fixed survey pillar and as such, the learned trial court ought to have rejected the report of the Amin Commissioner. But I find no substance in the submission of the learned counsel for the appellant since it is well settled that when fixed points in survey operation were not available disputed plot of the commission can carry out the measurement commencing from the fixed point available near about the plot as a reliable survey mark. It has been held in Bondonprasad Jaswal v. Binakumari, AIR 1990 Ori. It has been held in Bondonprasad Jaswal v. Binakumari, AIR 1990 Ori. 3232, that when fixed points in survey operation were not available near about the disputed plot the commission has to find out other permanent structure such as temple, old trees or the like near about the plot and dag the measurement and if that is not available, then to carry out the measurement commencement from the fixed point available and to reach the disputed plot. Thus, it is seen that though CW-1 did not find any fixed point at the time of survey due to its non-availability during the survey and measurement of the suit dags but he found out a reliable survey mark from the PWD road near about the suit land and reached the suit land for measurement of the suit dags and the surrounding dags. Moreover, the defendants also did not raise any objection at the time of survey measurement of the suit dags regarding the selection of the fixed point." 18. According to the appellants/defendants such a finding is without any basis. Now, let us see how far such findings of the courts below are tenable in law. We have already found that there was no dispute whatsoever over the title and possession of the land, described in Schedules A, B and C to the plaint. Since the defendants had admitted the claim of the plaintiff to the extent stated above, there is no difficulty in concluding that plaintiff is the owner and the possessor of the land in Schedules A, B and C to the plaint. 19. However, things are fundamentally different insofar the land described in Schedule D is concerned since it is specific case of the defendants/appellants that such land is the land which was purchased by their father on the strength of sale deeds executed in 1978. Their father occupied such land during his lifetime and after him, the defendants came to occupy such land as being his legal heirs. 20. But such contention has strongly been refuted by plaintiff stating that the land in Schedule D is his land and is covered by Patta No. 73 and 160 and he possesses such land as genuine owner of the same. We have found that Commissioner had surveyed the land and found that such land is covered by Patta Nos. 20. But such contention has strongly been refuted by plaintiff stating that the land in Schedule D is his land and is covered by Patta No. 73 and 160 and he possesses such land as genuine owner of the same. We have found that Commissioner had surveyed the land and found that such land is covered by Patta Nos. 73 and 160 and, therefore, he recorded his finding in favour of the plaintiff. 21. However, such finding of the Commissioner was disputed by the defendants. According to them, the report of the Commissioner is not acceptable in law since he admitted that he did not find any permanent station in the locality of the suit land to initiate the survey of the land in question. Since he could not find permanent station, it was his bounden duty to start measuring suit land and other adjacent land from the middle point of the nearby PWD road. 22. But the Commissioner commenced surveying the land by taking the rim of the road as the beginning point for the purpose of measurement of suit land and adjacent lands which is not permissible under the law. On this count alone, the judgments of the courts below are required to be interfered with. 23. He also assailed the report of Amin Commissioner pointing out that in his cross-examination, the Amin Commissioner admitted that if the survey is not conducted from the permanent station, then there may be some inaccuracy in survey, conducted by the Commissioner. In the present case, evidently and admittedly, Amin Commissioner could not locate the permanent station for which he commenced the survey from the rim of the road. 24. This important admission made by the Amin Commissioner was over looked by the trial court as well as by the appellate court. Since the Amin Commissioner did not commence the survey from the permanent station but from the rim of the road and since there is possibility of survey so conducted suffering from inaccuracy, the trial court as well as appellate court should not have acted upon the report of Amin Commissioner to conclude that defendants encroached the land in Schedule D. 25. In support of his claim the appellant has relied on a decision of Orrisa High Court in the case of Badan Prasad Jaswal v. Bira Khamar and Anr., AIR 1990 Orissa 32. In support of his claim the appellant has relied on a decision of Orrisa High Court in the case of Badan Prasad Jaswal v. Bira Khamar and Anr., AIR 1990 Orissa 32. The relevant part is reproduce below : "Mr. S.K. Ghosh, learned counsel appearing for the petitioner has assailed the order of the learned Munsiff urging of his having failed to notice the fundamental mistakes committed by the Commissioner in measuring the land. It is his submission that since the very report of the Commissioner shows that he has not taken the measurement from any fixed point and taken such measurement from two imaginary points set up by him, the report should have been held to be not of any worth and should have been discarded. A reference to the report shows the Commissioner to have stated that there was no fixed point near the disputed plot and the fixed point available near the tri-junction of plot Nos. 481,482 and 493 though not far away from the disputed plot, yet, since the line was not properly from it, it was not possible to carry out the measurement with reference to such fixed point and, hence, he set up two Mustakil Chandra as 'ka' and 'kha' near the disputed plots with the help of the map, and established such points in the 'khaka'. The measurement was carried out with reference to such fixed points set up by the commissioner. The procedure adopted by the commissioner was extraordinary since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, the Commissioner was to find out other permanent structure such as the temple, old trees or the like near about the plot and take the measurement and if mat was not possible, then to carry out the measurement commencing. It from the fixed point available and reach the disputed plot. Besides, if the fixed point was available but the line was not visible from such point to the disputed plot, the survey should not have been made by chain method but should have been made by other method of survey suitable for the purpose. In no circumstances, the commissioner should have set up imaginary points with reference to the map by which process there cannot be any guarantee of the accuracy of the measurement. In no circumstances, the commissioner should have set up imaginary points with reference to the map by which process there cannot be any guarantee of the accuracy of the measurement. The learned Munsiff feel into error of not appreciating such fundamental errors committed by the commissioner and, hence, the order accepting his report cannot be sustained. " 26. Such argument was hotly opposed to by the learned counsel for the respondent/plaintiff contending that this case has been taken up for consideration on two law points aforementioned. Since 3rd point involving the alleged illegality in conducting the survey in question was not framed, this court is not competent enough to consider a law point not so framed by this court at the time of admission of the appeal. 27. Even if one assumes for the sake of argument for a moment that there was the necessity of framing of an additional issue to dispose of the matter, yet, then the appellant could not show that there was any infirmity in the report of the Amin Commissioner. In fact, all the materials available on record clearly show that the Amin Commissioner conducted the survey strictly in accordance with the established Rules and Procedure. 28. It is also the claim of the respondent/plaintiff that the learned court below decided the matter not only on the basis of the report of Amin Commissioner but also on the evidence of other witnesses available on record which clearly shows that land in Schedule D to the plaint has been encroached by the defendants/appellants and as such, they are liable to be evicted therefrom. 29. Mr. M.U. Mahmud, learned counsel for the respondents/plaintiff contends that even if this court comes to a finding that, on the facts on record, a view, other than the concurrent view, arrived at by the courts below, on the methodology in conducting the survey in question, is possible, in second appeal, this court, however, would not be in a position to set aside the judgments of the courts below so as to substitute the concurrent finding of facts with its own view. 30. 30. In support of its contention, learned counsel for the respondents/ plaintiff has drawn my attention to the decision of the hon'ble Apex Court in the case of Ramanuja Naidu v. Kanniah Naidu and Anr., (1996) 3 SCC 392 as well as the decision of this court in the case of Sariar Ahmed v. State of Assam and Ors., 2009 (I) GLT 324. 31. The relevant part of the judgment in Ramanuja Naidu v. Kanniah (supra) is reproduced below : "11. We are of the view that in interfering with the concurrent findings of facts of the lower courts, the learned single Judge of the High Court acted in excess of the jurisdiction vested in him under section 100 of Civil Procedure Code. The learned Judge totally erred in his approach to the entire question and in reappraising and re-appreciating the entire evidence and in considering the probabilities of the case, to hold that the judgments of the court below are 'perverse' and that the plaintiff is entitled to the declaration of title to suit property and recovery of possession. It is evident that the courts below found, on the basis of oral and documentary evidence, that Ex.B-2 sale deed obtained by the first defendant on 5.5.1967 is genuine and valid, and that the first defendant discharged the mortgage Ex. B-1 on 10.5.1967, took possession of the suit property and thereafter cultivated the same. The courts, below were of the opinion that Ex. A-1 cannot be accepted in view of the contradictions in the evidence of PW1 and PW2 regarding the payment of consideration, and none of the attestors to Ex. A-1 were examined. Laying stress on Ex. A-4, suit notice, sent by the plaintiff to the first defendant and other circumstances, the courts also found that there is collusion between the plaintiff and the second defendant and so Ex. A-1 purported to have been executed by the second defendant in favour of the plaintiff is not valid in law. These concurrent findings of facts of the courts below, were based on oral and documentary evidence. The learned Single Judge on re-appreciating the evidence took the view that it was "no possible" that the document Ex. B-1 "would have' been executed on 5.6.1967 in view of the delay in the registration of the document. These concurrent findings of facts of the courts below, were based on oral and documentary evidence. The learned Single Judge on re-appreciating the evidence took the view that it was "no possible" that the document Ex. B-1 "would have' been executed on 5.6.1967 in view of the delay in the registration of the document. In second appeal, the learned Single Judge of the High Court totally ignored the concurrent findings of the courts below that the first defendant discharged the mortgage, Ex. B-1 on 10.5.1967, took possession of the property and cultivated the same and the said finding was based on the oral evidence of DW-3, the mortgagee and independent witnesses, DW-4 and DW-5 scribe, besides the defendant, DW-6. There was no evidence contra. The concurrent findings of the court/ courts below that Ex. B-2, sale deed in favour of the first defendant is earlier in point of time and was genuine and valid is a finding of fact. Such a finding was not open to any challenge in second appeal. The learned Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under section 100 of the Code of Civil Procedure in the way he did. No question of law arose for consideration before the learned Single Judge. The sole question that arose for consideration was, whether Ex. B-2, sale deed, in favour of the first defendant dated 5.5.1967, which is admittedly earlier in point of time to Ex, A-1 dated 5.6.1967, in favour of the plaintiff is genuine and valid. Both the trial court as well as the appellate court, rightly, in our opinion started with the normal and reasonable presumption that Ex. B-2 dated 5.5.1967, was made on that day which is earlier to Ex. A-1 dated 5.6.1967, and that there was no evidence to offset or rebut the said presumption, to hold that Ex. B-2 was not executed on 5.5.1967 as pleaded by the plaintiff. On the other hand, according to the courts below, the evidence available in the case reinforced the aforesaid presumption and positively pointed out that Ex. B-2 was, in fact, executed that it was "not probable" that Ex. B-2 dated 5.5.1967 would have been executed on that day in view of "the delay" in registration. The approach so made and the resultant conclusion are totally unjustified and unsustainable in law." "9. B-2 was, in fact, executed that it was "not probable" that Ex. B-2 dated 5.5.1967 would have been executed on that day in view of "the delay" in registration. The approach so made and the resultant conclusion are totally unjustified and unsustainable in law." "9. It is fairly settled law that the High Court, while exercising jurisdiction under section 100 of the CPC, cannot reverse the findings of the lower courts on facts merely on the ground that on the facts found by the lower court another view was possible. The findings on facts by the first appellate court as a final court of fact based on jurisdiction under section 100 of the CPC has to limit its inference to the judgment and decree of the lower court only to the substantial question of law framed at the time of admission of the appeal or to the additional substantial question of law framed at the later date after recording the reasons. Admittedly, in the present appeal neither the parties formulated any additional substantial question of law at the later date after recording the reasons. Therefore, only substantial question of law involved in the present appeal is the substantial question of law quoted above. 10. The High Court while deciding the second appeal by exercising jurisdiction under section 100, CPC cannot proceed to re-appreciate the evidence without adverting to the substantial question of law formulated at the time of admission and also that without deciding the substantial question of law framed at the time of admission of the second appeal, the High Court in exercise of jurisdiction under section 100, CPC cannot set aside the findings of the subordinate court by re-appreciating the evidence." 32. In the case of Sariar Ahmed (supra), this court held similar views. The relevant part of the judgment is reproduced below : "9. It is fairly well-settled law that the High Court, while exercising jurisdiction under section 100 of the CPC, cannot reverse the findings of the lower courts on facts merely on the ground that on the facts found by the lower courts another view was possible. The findings on facts by the first appellate court as a final court of fact based on appreciation of evidence cannot be treated as perverse. The findings on facts by the first appellate court as a final court of fact based on appreciation of evidence cannot be treated as perverse. The High Court while exercising jurisdiction under section 100 of the CPC has to limit its interference to the judgment and decree of the lower court only to the substantial question of law framed at the time of admission of the appeal or to the additional substantial question of law at the later date after recording the reasons. Admittedly, in the present appeal neither the parties formulated any substantial question of law at the time of hearing of the second appeal nor this court framed any additional substantial question of law at the later date after recording the reasons. Therefore, only substantial question of law involved in the present appeal is the substantial question of law quoted above. 10. The High Court while deciding the second appeal by exercising jurisdiction under section 100, CPC cannot proceed to re-appreciate the evidence without adverting to the substantial question of law formulated at the time of admission and also that without deciding the substantial question of law framed at the time of admission of the second appeal, the High Court in exercise of jurisdiction under section 100, CPC cannot set aside the findings of the subordinate court by re-appreciating." 33. I have found that the bone of contention between the parties in this proceeding is the legality, propriety and correctness of the report of Amin Commissioner and as such, in my considered opinion, an additional question of law needs to be framed. It may be stated that in the terms of the proviso to section 100(5) of the CPC, the High Court can frame additional question of law not formulated at the time of admission of appeal if the formulation of such additional question of law is necessary in the interest of justice. 34. Therefore, on hearing the parties to this appeal, I am of the opinion that for ends of justice, one additional question of law needs to be framed for deciding the present second appeal accurately and appropriately. Accordingly, the following additional question of law is framed. 35. 34. Therefore, on hearing the parties to this appeal, I am of the opinion that for ends of justice, one additional question of law needs to be framed for deciding the present second appeal accurately and appropriately. Accordingly, the following additional question of law is framed. 35. Since both the parties had clear notice of aforesaid additional question of law and since both the parties offered their extensive arguments on such question of law, I find it necessary to answer the same on the basis of materials on record before going to decide other questions of law. In that connection, I have carefully considered the report of Amin Commissioner in the light of evidence on record. 36. I have found that one of the grounds, on which the rejection of the Amin Commissioner report was sought for, was that the Amin Commissioner did not conduct the survey in question in accordance with the requirement of law since such survey was conducted not from any permanent station but from the rim of the road which, according to learned counsel for the appellants, was profoundly illegal and it invariably caused the Commissioner to arrive at wrong conclusion. 37. It is true that Amin Commissioner could not find any permanent station in the area where survey was conducted. He also did not find any other station(s) in the form of temple, trees or other landmarks. But then, he clearly deposes that he took the rim of the road as permanent station or mark and started measuring the land from the edge of the road. The learned counsel for the appellants, however, contends that survey, initiated from rim of the road, cannot be authentic since it is in the common knowledge of one and all that all the roads get widen over the years. 38. However, such apprehension is wholly unfounded. This is because of the fact that there is nothing on record to corroborate that road, involved, gets widen from time-to-time as apprehended by learned counsel for appellants/plaintiffs which may ultimately interfered with survey, conducted by the Amin Commissioner on 18.6.2006. Therefore, in my considered opinion, only for aforesaid apprehension, which, as stated above, remained wholly unfounded, the report of the Amin Commissioner cannot be rejected as prayed for by the appellants. 39. Therefore, in my considered opinion, only for aforesaid apprehension, which, as stated above, remained wholly unfounded, the report of the Amin Commissioner cannot be rejected as prayed for by the appellants. 39. True that in his evidence, Amin Commissioner admitted that if the survey was not done from permanent station, the result of the survey may not be always correct. However, the opinion, so expressed by the Amin Commissioner, is general in nature and such opinion cannot overthrow the report under consideration, unless it is shown that such a report actually suffers from some serious flaws. Unfortunately for the appellants, no such flaw could be brought to the notice of the court requiring it to interfere with the report in question. 40. That apart, there is evidence in the form of testimony of Amin Commissioner to show "the Amin Commissioner found a reliable survey mark from the Government PWD road situated in the north of the suit land and from a fixed point situated in the west-south of the dag No. 989 from where he reached the disputed plot and conducted survey". Such revelation further demonstrates that there was little or no chance of the report, under consideration, being afflicted with any infirmity. 41. One may note here that the defendants/appellants were present at such place when the survey was conducted. But they did not raise any objection regarding not initiating the survey in question from the permanent station but from the rim of the road. Very interestingly, they chose to remain silent at such a vital point and preferred to raise such a claim only in the course of argument of the suits/appeal aforementioned. This further evinces the hollowness of the claim of the appellants/ defendants that survey in question was not conducted in accordance with the established procedure. 42. We have already found that the entire proceeding is around the allegation that the Amin Commissioner conducted the survey not in accordance with procedure established. However, our forgoing discussion firmly shows that such a contention is without any substance. Therefore, I have no hesitation whatsoever in coming to the conclusion that the report of Amin Commissioner pertaining to survey of suit land in question does not suffer from any infirmity whatsoever. 43. However, our forgoing discussion firmly shows that such a contention is without any substance. Therefore, I have no hesitation whatsoever in coming to the conclusion that the report of Amin Commissioner pertaining to survey of suit land in question does not suffer from any infirmity whatsoever. 43. The learned counsel for the respondent/plaintiff painstakingly claims that the learned courts below came to the conclusion that the land, described in Schedule D to the plaint, has been in the illegal occupation of the defendants/appellants not only on the basis of report of the Amin Commissioner alone but it founded its decision, aforesaid, also on the basis of evidence of witnesses, tendered from the side of plaintiff/ respondent. 44. I have considered such a submission in the light of evidence on record and found that the PWs are very emphatic in their claim that the land, described in Schedule D to the plaint, has been under the illegal occupation of the defendants/appellants. Situation being such, in my considered opinion, it needs to be held that the defendants/appellants have been in illegal occupation of land, so described in Schedule D to the plaint. 45. One may note here that as held in Ramanuja Naidu (supra) and in Sariar Ahmed (supra), as well as in Sariar Ahmed (supra], in second appeal, High Court cannot reverse the concurrent findings of the lower courts on facts merely on the ground that on the facts on record, a view, other than the view, arrived at by the courts below is possible. This is because of the fact that in second appeal, High Court can decide only question of law and as such, it cannot re-appreciate the evidence. 46. In our instant case, I have already found that in conducting the survey under consideration, Amin Commissioner did not offend basic procedures dealing with survey of the suit land and as such, the report of Amin Commissioner does not suffer from any infirmity whatsoever which unmistakably shows this second appeal lacks merit. 47. 46. In our instant case, I have already found that in conducting the survey under consideration, Amin Commissioner did not offend basic procedures dealing with survey of the suit land and as such, the report of Amin Commissioner does not suffer from any infirmity whatsoever which unmistakably shows this second appeal lacks merit. 47. But then, even if one assumes for the sake of argument that it is probable that the report of the Amin Commissioner became defective for the Commissioner's not conducting the survey in question from the permanent station but from the rim of the road, yet then, on facts on record, this court in second appeal, cannot reverse the concurrent finding of the courts below on holding that a view other than one, arrived at by the courts, below, is also probable. 48. In view of what I have discussed herein before and what have emerged therefrom, I have answered the additional question of law in favour of respondent/plaintiff. 49. Since the other two questions of law are entirely dependent on the outcome of additional question of law and since such an additional question of law is answered in favour of the plaintiff/respondent and against the appellants, other two question of law are accordingly stand answered in favour of plaintiff/respondent. 50. In the result, this appeal is dismissed affirming judgment of the courts below and parties they left to bear their own cost. 51. Send down the LCR forthwith.