JUDGMENT 1. This appeal under section 100 CPC by defendants' is against the common judgment and decree dated 24.4.2007 passed by XII Additional District Judge (Fast Track Court), Gwalior disposing of two appeals; viz. Civil Appeal No.5-A/2007 preferred by the defendants' against part of the judgment and decree dated 26.10.2006 passed by the trial Court in Civil Suit No.97-A/2003 decreeing suit of the plaintiff for declaration, injunction and recovery of possession and Civil Appeal No.11-A/2007 has been preferred by the plaintiff against denial of recovery of mesne profits. No appeal in this Court has been preferred by the plaintiff against the part of the judgment and decree relalting to First Appeal No.11-A/2007. 2. Facts necessary for disposal of this appeal are to the effect that original plaintiff had filed a suit for declaration, permanent injunction and recovery of possession inter alia contending that the defendant No.1 has entered into an agreement with the plaintiff for an area of 24 feet 6 inches falling on the southern side of the house of the plaintiff situated at Godwali Sadak, Lashkar, Gwalior. Defendant No.2 is wife of defendant No.1. Defendant No.1 persuaded plaintiff to execute power of attorney in favour of defendant No.2. Thereafter, taking advantage of absence of the plaintiff who is residing at Ujjain, the power of attorney holder, i.e., defendant No.2 on 18.5.1989 executed the sale deed on 18.5.1989 in favour of defendant No.1 for an excess area of 27 feet 7 inches (over and above the area entered into agreement). Thereafter, defendant No.1 while raising construction over an area of 27 feet 7 inches has encroached the area of plaintiff admeasuring 3 feet 1 inches and 29 feet 4 inches and constructed stair case (jeena) and latrine. Plaintiff having come to know such encroachment has served a notice dated 15.9.1995 upon defendant No.1. Though in the reply submitted to the notice on 31.10.1995 defendant No.1 has admitted that excess area was mentioned in the sale deed dated 18.5.1989 and given to understand that amendment in the sale deed has been carried out in the Office of Sub-Registrar (Stamps), but defendant No.1 continued to be in physical possession of the excess area and did not remove the encroachment. As the defendant No.1 clearly denied to vacate the premise and hand over peaceful possession of the same finally on 14.6.2003, the plaintiff has filed the suit on 17.6.2006 for the reliefs as stated above. 3. Defendants' filed written statement and denied plaint allegations. It is inter alia contended that defendants' are in possession only to the extent of 24 feet 6 inches of the area from north to south side of the house. There is wrong measurement alleged by the plaintiff. Defendants' have not encroached the area as claimed by plaintiff. Suit is filed with ill-intention contrary to the facts. 4. An alternative plea has also been raised that even otherwise, defendants' are in possession of the area in question for the last more than 12 years'. Hence, acquired title by adverse possession. Hence, prayed for dismissal of the suit. 5. On the aforesaid pleadings, trial Court framed issues No.1 to 6 and answered issues No.1, 2, 4, 5 and 6 in the affirmative in favour of plaintiff and decreed the suit, accordingly. However, the issue No.3 relating to the claim for mesne profits at the rate of Rs.500/- per month has been dismissed. 6. Defendants' filed First Appeal No.5-A/2007 and raised the following contentions : (i) the original plaintiff, Harishchandra Jaiswal had filed the suit through power of attorney holder, Jagannath Singh Dhakad. Later on, substitution of the power of attorney holder for the plaintiff on the strength of 'Will' dated 16.8.1989 claimed to have been propounded by the original plaintiff was not proper and legal, therefore, the suit was not maintainable; (ii) the suit could have proceeded only if the heirs or natural heirs of the original plaintiff are brought on record; (iii) trial Court had fallen in error having not framed issues arising out of the pleadings of the parties; particularly as regards factum of existence of the allegal 'Will'; (iv) defendants' since are in possession over the suit area for more than 12 years' to the knowledge of the original plaintiff, therefore, the trial Court ought to have held that the defendants' have acquired title to the said area by adverse possession; (v) trial Court could have ordered for appointment of commission for demarcation of the area and that has not been done; and (vi) suit is otherwise barred by time. 7. The first appellate Court has dealt with the aforesaid contentions extensively. 7. The first appellate Court has dealt with the aforesaid contentions extensively. It has been held that while substituting the power of attorney holder for the plaintiff on the basis of 'Will' dated 16.8.1999, the trial Court had passed a detailed order on 13.12.2005 and after hearing both the parties and affording opportunity which is self-contained and self-explanatory. No particulars or details of heirs or natural heirs of the original plaintiff were placed on record by the defendants'. Under such circumstances, in the absence of any heir, muchless natural heirs, the substitution of the beneficiary under the 'Will' who is incidentally also power of attorney holder is proper. As such, the same cannot be faulted as there is no such prohibition under law. Moreover, the objection of the defendants' in reply to the application filed under Order XXII rule 3 CPC alleging that the 'Will' was forged mainly for the reason the natural heirs are not brought on record in the absence of any list of heirs having supplied by defendants' seeking their substitution for the plaintiff cannot be sustained. Moreover, the scope of enquiry under Order XXII rule V CPC assumes importance if there is material relating to claims and there were claims for heirs of the deceased party so that the competent Court may determine the actual heirs to be substituted for the deceased party. Such eventuality did not occur in the instant case as no one come forward to make any claim as legal heir except the power of attorney holder. 8. The order passed by the trial Court rejecting the objection of the defendants' as regards 'Will' was never challenged. No application under Order XIV rule 5 CPC was over filed seeking issue in that behalf to be framed at the time of settlement of the issues. Hence, no fault can be found with the issues framed by the trial Court. Further, the controversy between the parties centered around that the possession of excess area of the land shown in the sale deed dated 18.5.1989 as the sale deed got executed for an area of 27 feet 7 inches instead 24 feet 6 inches. 9. No application was filed by the defendants' for spot inspection either before the trial Court or before the first appellate Court for appointment of commission for demarcation of the area at issue. 9. No application was filed by the defendants' for spot inspection either before the trial Court or before the first appellate Court for appointment of commission for demarcation of the area at issue. However, no commission could be issued by the Court for collection of evidence. 10. Defendants' themselves have admitted that they are in possession of excess area of the suit area by raising plea of adverse possession and the area in excess was also known to both the parties. Under such circumstances, no exception can be taken to the judgment and decree passed by the trial Court on that count. 11. At the appellatel stage, application under Order VI rule 17 CPC was filed and by way of amendment, the defendants' tried to plead that similar nature of suit vide Suit No.37-A/1994 has been dismissed and, therefore, the present suit is barred by the principle of res judicata. Copy of judgment in that behalf was sought to be placed on record by filing application under Order XLI rule 27 CPC. These contentions have been dealt with by the first appellatle Court in paragraphs 31 and 32 of the impugned judgment whereunder it has been found that in fact, the aforesaid Suit No.37-A/1994 filed in the Court of III Civil Judge, Class II, Gwalior was dismissed on 24.12.1998 for want of evidence and further it was found that the said suit was not between the same parties and the nature of relief was that of easementry rights of light and air through the wall of the house whereas the suit in hand is for declaration, injunction and recovery of possession. Hence, both the aforesaid applications; Order VI rule 17 CPC and Order XLI rule 27 CPC has been rejected. Consequently, the plea of res judicata was negated. Suit was also found to be well within time as immediately after openly denying to remove the encroachment and hand over the peaceful possession of the excess area of the suit land to the plaintiff on 14.6.2003, the suit was filed on 17.6.2006. Consequently, the appeal was dismissed. 12. Before this Court, the contentions are reiterated and no other point is pressed into service. 13. Consequently, the appeal was dismissed. 12. Before this Court, the contentions are reiterated and no other point is pressed into service. 13. There is no dispute that by sale deed dated 18.5.1989, the suit area was sold by the plaintiff but in the sale deed excess area of 27 feet 7 inches has been mentioned instead 24 feet 6 inches as per the agreement entered into between the parties. There is also no dispute that no objection by the plaintiff, the defendants' conceded the mistake and informed the plaintiff as regard correction of area in the sale deed made before the Sub-Registrar (Stamps). However, the defendants' refused to remove the encroachment and hand over possession of excess area to the plaintiff, therefore, the suit for declaration, permanent injunction and recovery of possession was filed. The claim to the suit area in question by defendants' on the plea of perfection of title adverse possession itself demonstrates that defendants' continued to be in physical possession of the excess area for which they are not entitled for. The plea of adverse possession was more of frustration that substance as on the one hand it is admitted in the evidence of defendants' that the actual area of land sold was 24 feet 6 inches but excess area was mentioned in the sale deed, i.e., 27 feet 7 inches and sale deed was also amended. As such, the plaintiffs claim for declaration, injunction and recovery of possession has substantial force based on evidence on record. Therefore, the concurrent findings of fact recorded by Court below in that behalf is found to be impregnable in nature. 14. The plea related to justifiability of substitution of the power of attorney holder for the plaintiff under Order XXII rule 3 CPC is also found to have substantial force for more than one reason. Defendants' while replying to the application under Order XXII rule 3 CPC had the opportunity to produce the details of heirs of natural heirs of the plaintiff while disputing and denying the substitution of power of attorney holder as legal heir of the plaintiff on the strength of the 'Will' dated 16.8.1999 but no such details were furnished. No person has come forward with the claim of heir or natural heir of plaintiff. The application was decided by the trial Court with due opportunity to the parties on 13.12.2005 by a detailed order. No person has come forward with the claim of heir or natural heir of plaintiff. The application was decided by the trial Court with due opportunity to the parties on 13.12.2005 by a detailed order. The scope of enquiry under Order XXII rule 5 CPC depends on the facts available on record and for want of material, the trial Court cannot hold enquiry without any basis. Moreover, substitution of legal heirs on the basis of the 'Will' is not the real controversy but the real controversy was illegal possession by the defendants' over the area in excess to the area purchased through the sale deed. Under such circumstances, the first appellate Court was justified having negated the contention advanced in that behalf concurring with the finding of the trial Court. It appears that the defendants'/appellants' intended to deviate from the real controversy between the parties by raising such flaw pleas to protect their illegal possession which otherwise cannot be sustained. Besides, the defendants' could have filed an application under Order XIV rule 5 CPC seeking framing of additional issue as regards factum of execution of the 'Will'. That was not done. Therefore, at the appellate stage, such pleas cannot be countenanced. Furthermore, the plea of res judicata on the basis of earlier suit was rightly dismissed as the Suit No.37-A/1994 was related to easementry right of light and air through the wall of the house and the same was dismissed for want of evidence. Moreover, the said suit was not between the same parties and also the nature of suit was not for declaration, injunction and recovery of possession. Accordingly, this Court is of view that no illegality has been committed by both the Courts below while rejecting the applications under Order VI rule 17 CPC and Order XLI rule 27 CPC. 15. The judgments cited by learned counsel for the appellants' in the cases of Mahesh Chand v. Nagar Palika, Morena [1993(II) MPWN SN 216], Beejanwala Talukdar (Smt.) v. Radhakrishna Rai [ 2012(III) MPWN 62 ], Akkarayoyina Appa Rao v. Smt. Korada Ammoru and others [1(1999) CLT 504], Laxminarain v. Ramjidas and others [1(1999) CLT 508], Shivmangal through LRs v. Narainprasad and others [ 2007(III) MPWN 52 ], and Parmeshwari Dayal v. Mahila Ramshri [1996(I) MPWN SN 204], are of no assistance to the appellants. 16. 16. Consequently, in the opinion of this Court, both the Courts below have recorded pure findings of fact based on proper appreciation of the evidence brought on record. The findings are impregnable in nature. The entire gamut of matter is in realm of facts. No question of law, much less substantial question of law arises warranting interference under section 100 of the Code. 17. Appeal sans merit and is dismissed accordingly.