Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2196 (ALL)

SHYAM SUNDER v. B. R.

2017-09-19

SUNITA AGARWAL

body2017
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—The present petition is directed against the judgment and decree dated 14.2.1989 passed by the Board of Revenue U.P. at Allahabad remitting the matter back to the first appellate Court for fresh decision considering the oral evidence adduced by the parties. The petitioners herein are heirs of original plaintiff Smt. Ramdeiya who brought the suit for ejectment under Section 209 of U.P. Z.A. & L.R. Act namely Suit No. 10 of 1968 (Smt. Ramdeiya v. Rangava Lal and another). The suit property comprises of plot No. 541 area 35 bighas 18 biswa, 374/1 bigha 4 biswa, 237 1 bigha 13 biswa and 166/16 bigha 18 biswa; total area of 53 bighas 14 biswa situated in village Itkhari, Pargana and Tehsil Karvi. 2. The plaint case was that the plaintiff was Bhumidhar of the suit property and the defendants had taken unlawful possession thereof since 1367 Fasli (F). The relief of ejectment and decree of damages against the defendants had been sought. The original defendants therein were Rangava Lal and his son Hari Shankar as defendant Nos. 1 and 2. 3. The suit was decreed on 27.9.1960. The matter went up till the second appellate stage when it was remanded for trial afresh impleading the State Government. After remand, apart from the State Government, Ajodhya Prasad and Kashi Prasad were impleaded as defendant Nos. 4 and 5. 4. The defendants had contested the claim of the plaintiff of having Bhumidhari rights in the suit property and stated that the suit land was originally the Khudkasht of Smt. Chaturiya who gifted her entire Sir and Khudkasht including Zamindari rights to one Jagmohan on 23.8.1912. Jagmohan died issueless, the plaintiff Smt. Ramdeiya being his mother inherited all his rights and became Sir holder of the suit land. Out of 400 bighas of Zamindari land, 150 bighas which included her Sir and Khudkasht land, was gifted on 5.10.1937 to Chhitani, Badri Prasad and Basdeo sons of Mahtura. After death of Basdeo, his sons Mahaveer and Mahadev came in possession over his share. Both Mahaveer and Mahadev died within one and a half year of death of Basdeo, resultantly, Smt. Gangia widow of Basdeo succeeded the share of Basdeo. After death of Basdeo, his sons Mahaveer and Mahadev came in possession over his share. Both Mahaveer and Mahadev died within one and a half year of death of Basdeo, resultantly, Smt. Gangia widow of Basdeo succeeded the share of Basdeo. She transferred all her rights including Sir and Khudkasht right to Hari Shankar, Ajodhya Prasad and Kashi Prasad by gift deed dated 24.6.1949 and since then the defendants are in continuous possession of the suit land. The suit land was Khudkasht of the defendants and after abolition of Zamindari they became Bhumidhar. 5. As per case of the defendants, the suit land was included in 150 bighas land which was gifted by the plaintiff to Basdeo, Badri Prasad and Chhitani. There was no division between them, though each of them were separately in possession of their 1/3rd share. Smt. Gangia, widow of Basdeo transferred her entire share (the share of Basdeo inherited by her) to defendant Nos. 2, 4, and 5 and thus the defendant Nos. 2, 4 and 5 became co-Bhumidhar alongwith Bhaiya Lal son of Badri Prasad and Jagdish Prasad son of Chhitani. The suit was contested being bad for non joinder of Bhaiya Lal and Jagdish Prasad. In alternative, it was pleaded by the defendants that in case, they were not held as Bhumidhars they being in possession of the suit land as Sirdars, had perfected their Sirdari rights by adverse possession and the suit for eviction against them could not be decreed. 6. Seven issues were framed by the trial Court which included the questions of : (i) the plaintiff being Bhumidhar of the land in suit; (ii) the defendants Nos. 1,2 4 and 5 being trespassers; (iii) the limitation in filing suit; (iv) the suit property being included in 150 bighas of land gifted by the plaintiff to Badri Prasad, Chhitani and Basdeo; (v) the suit being bad for non joinder of Bhaiya Lal and Jagdish Prasad; (vi) the defendant Nos. 2, 4 and 5 being Bhumidhar of the suit land; (vii) the defendant Nos. 2, 4 and 5 having perfected their rights as Sirdar by adverse possession? 7. 2, 4 and 5 being Bhumidhar of the suit land; (vii) the defendant Nos. 2, 4 and 5 having perfected their rights as Sirdar by adverse possession? 7. Issue No. 4 namely the suit land being included in 150 bighas of gifted land by the plaintiff to Badri Prasad, Chhitani and Basdeo, it was held by the trial Court that in view of the admission of the plaintiff and her witness Ram Kumar, it was proved that the suit land was included in 150 bighas of gifted land. As the plaintiff did not reserve her right of cultivation, she could not claim ex-proprietary tenancy rights in the suit land. The plaintiff continued to be recorded as Sirdari holder of the suit land and after transfer to Basdeo, Chhitani and Badri Prasad, no right would survive with the plaintiff in the suit land. The defendants were in continuous possession of the suit land being part of 150 bighas of gifted land and they had cultivated the same as Khudkasht till before the abolition of Zamindari. 8. On issues of rival claims of plaintiff and defendants being Bhumidhar and the plea of adverse possession of the defendants namely issue No. 1, 2, 5, 6 and 7, it was held by the trial Court that though the name of the plaintiff was recorded in Khasra of 1356F, 1357F and 1358 Fasli, as Sir holder in main column and the sub-tenant, however, the remark columns thereof were blank. In khasra of 1359- F, in the remark column, the defendants were recorded as Qabiz (in possession). The copiest, who issued the certified copy of the said khasra made a note in his own register that in the original khasra of 1359-F, the cross mark in the remark column was evased and defendants were recorded as Qabiz. The plea of the plaintiff of the entries in the remark column of 1359-F being forged was disbelieved on the ground that the plaintiff could have summoned the Patwari and the Lekhpal who prepared the khasra of 1359-F and could have examined them on the said entry being forged. As that had not been done, the plea of forgery was not proved. In khasra of 1361-F, it was held, that though there was no Qabiz entry of the defendants, however, their possession had been recorded in 1362-F. The defendants were also recorded as Qabiz in Khasra from 1367-F onwards. As that had not been done, the plea of forgery was not proved. In khasra of 1361-F, it was held, that though there was no Qabiz entry of the defendants, however, their possession had been recorded in 1362-F. The defendants were also recorded as Qabiz in Khasra from 1367-F onwards. Relying these revenue entries, it was held by the trial Court that since the defendants were in cultivatory possession of the suit land in 1359-F i.e. immediately before the date of vesting (before abolition of Zamindari), as Khudkasht holder, after abolition of Zamindari, they became its Bhumidhars. 9. The statement of Lekhpal namely Baboo Lal made in favour of the defendants that 1362-F khasra was prepared by him and the Qabiz entry of the defendants in the said khasra was correct entry, was given weightage to deny the claim of the plaintiff. The statement of all other witnesses namely Preetam Pradhan as D.W-1 and Jagdish Prasad as D.W.2 sons of Chhitani had also been relied upon by the trial Court to record a finding that by leading oral evidence, the defendants had proved their possession from 1359-F to 1362-F. Even if, there were allegation of them having trespassed the suit land, they had perfected their rights by adverse possession since the year 1361-F and the decree of ejectment could not be passed against them. It was concluded that the plaintiff had failed to prove that she was Bhumidhar of the suit land and mere entries of her name as a Bhumidhar were not proof of her title in as much as the papers entries were proved to be wrong. It was further held that the suit was bad for non joinder of parties in as much as Bhaiya Lal and Jagdish Prasad, the co-tenure holders were not impleaded. 10. The judgment and order dated 24.2.1968 passed by the trial Court was challenged in appeal. The first appellate Court had reversed the findings of the trial Court and decreed the suit for ejectment of the defendants from the suit land. It was held that the suit land was not included in 150 bighas of land transferred by Smt. Ramdeiya. 10. The judgment and order dated 24.2.1968 passed by the trial Court was challenged in appeal. The first appellate Court had reversed the findings of the trial Court and decreed the suit for ejectment of the defendants from the suit land. It was held that the suit land was not included in 150 bighas of land transferred by Smt. Ramdeiya. The issues framed by the trial Court had been answered by the first appellate Court in the following manner : “(1) That the plaintiff is bhumidhars of the land in suit and entitled to sue being recorded till today in theland in suit from the date of abolition of zamindari and being Sir holder thereof before the abolition of Zamindari. (2) Defendants No. 1, 2, 4 and 5 being in possession according to the plaintiffs claim and defendants own are held to be trespassers on it. (3) Defendants having failed to prove that they are in continuous possession over the land in suit and to have perfected their rights under Section 210 U.P.Z.A & L.R. Act in 1367-F when the suit was brought the suit for their ejecttment is held to be within time plaintiff’s case is that the defendants trespassed on suit in 1367-F and on that basis also the suit is within time. (4) The land in suit was not included in the 150 bighas land transferred by the plaintiff to Badri Prasad, Chhitani and Baseo vide discussion above. (5 and 6) None of the defendants is bhumidahar of the land in suit vide discussion above. (7) Defendants 2, 4 and 5 have not perfected their rights by adverse possession as sirdars. (8) Bhaiya Lal and Jagdish Prasad not being in possession of the land in suit as trespassers are not necessary parties in the suit for the ejectment of the other trespassers. (9) The plaintiff has not proved any damages so no amount can be fixed in her favour to be paid by the defendants.” 11. (8) Bhaiya Lal and Jagdish Prasad not being in possession of the land in suit as trespassers are not necessary parties in the suit for the ejectment of the other trespassers. (9) The plaintiff has not proved any damages so no amount can be fixed in her favour to be paid by the defendants.” 11. In arriving at the above conclusion, the first appellate Court had considered the statement of the plaintiff recorded in mutation proceeding on 15.7.1939 (heavily relied upon by the defendants) and the revenue entries on record namely Khewat 1356-F, khasra 1359-F, Khatauni 1359-F. It was held that from the statement of the plaintiff in the said mutation proceeding, it was not clear as to what rights had been transferred to the defendants by her ancestors and how they got share in the proprietary rights inherited by Smt. Ramdeiya, the plaintiff. Another statement of the plaintiff Smt. Ramdeiya, in a subsequent mutation proceeding initiated by Hari Shankar, Ajodhya Prasad and Kashi Prasad, initiated on the alleged gift deed executed by Smt. Gangia widow of Basdeo, was also considered. It was recorded by the first appellate Court that even at that point of time, the plaintiff Smt. Ramdeiya did not mention that she gifted proprietary rights of 150 bighas of land to her husband’s brother (i.e. the defendants). On examination of documentary evidences noted above, it was recorded that in Khewat of 1356-F, Smt. Ramdeiya was recorded as proprietor of 253-10-0 and Chhitani, Badri Prasad and Smt. Gangaiya were as proprietors of the remaining 150 bighas. Khatauni of the same year shows that the plots in dispute were recorded as “Sir of the Malkhan” and nobody else except the plaintiff was in possession over them. Smt. Ramadeiya was recorded holding the entire Sir land (184-14-0) including the land in suit as Sir holder in Khatauni of 1359-F; but in Khasra the possession of the defendants was recorded. Thus for the first time in Khasra of 1359-F but not in Khatauni of the said year, the name of the defendants was recorded. The noting of the copyist that the names of the defendants had been recorded in the remark column of the Khasra 1359F after erasing the cross marks had been considered by the appellate Court. The original copy of Khasra of 1359-F summoned by the parties was also examined by the first appellate Court. 12. The noting of the copyist that the names of the defendants had been recorded in the remark column of the Khasra 1359F after erasing the cross marks had been considered by the appellate Court. The original copy of Khasra of 1359-F summoned by the parties was also examined by the first appellate Court. 12. Having examined the original Khasra of 1359-F, a categorical finding had been recorded by the first Appellate Court of the said entry being forged entry. 13. It was further held that looking to the record the subsequent year i.e. Khasra of 1362-F, possession of Hari Shankar and Ajodhya was recorded only on three plots namely plot No. 374, 375 and 541 and name of none of the defendants was recorded on the remaining three plots. It was, thus, held that the defendants were not in possession of the suit land in the year 1359-F. In the following year, some of them were recorded in possession of few plots of the suit land i.e. in 1362-F. But that entry by itself would not be sufficient to hold that the defendants were in continuous possession of the suit land since the time of transfer of proprietary rights in their favour by Smt. Ramdeiya, the appellant. Resultantly, they could not be said to become Bhumidhar of the suit land on the basis of transfer of the proprietary rights as claimed by them. 14. The finding recorded by the trial Court that the suit land included the 150 Bighas of land which was transferred by Smt. Ramdeiya to Badri Prasad, Chhitnai and Basdeo was upturned with the reasoning that there was no documentary evidence in support of the said finding. It was held that from the alleged transfer till the abolition of Zamindari, quite a long time had been passed and no document/record was found for the intervening period. 15. Two oral statements of plaintiff Ramdeiya made on two occasion in mutation proceeding did not specify as to whether she had transferred the proprietary rights in that land or the specific plot which had been transferred allegedly by her including the land in suit. The burden was upon the defendants to prove the transfer and they had utterly failed in doing so. 16. The burden was upon the defendants to prove the transfer and they had utterly failed in doing so. 16. Lastly, the submission of defendants that since the transfer was within the family it should be presumed that while transferring her proprietary right, Smt. Ramdeiya had also transferred her Sir land, was rejected with the reasoning that no presumption could be drawn in that regard in absence of any evidence. It was lastly held that from the material evidence on record, it was not possible to hold that the suit land was included in the 150 bighas of land transferred by Smt. Ramdeiya through a compromise deed to Badri Prasad, Chhitani and Basdeo. 17. The matter went up in Second Appeal. The above noted findings of fact of the first appellate Court were upturned by the second appellate Court with the observations as follows : “..... The question whether the defendants-appellant are bhumidhars or merely sirdars by virtue of their cultivatory possession since 1359 fasli is not material for the purpose of the second appeal as the present suit is not one for declaration of rights but merely of the ejectment under Section 209 filed by the plaintiff-respondent. I, therefore, need not affirm there the trial Court’s finding that the defendants-appellants are bhumidhars of the land. It would, however, held that the trial Court had rightly dismissed the suit for the plaintiff-respondent and the lower appellate Court has erred in law in decreeing the suit.” 18. The matter reached to this Court in writ petition No. 1793 of 1977 (Bhawani Prasad and another v. The Board of Revenue, U.P. at Allahabad). The writ Court by judgment and order dated 9.2.1984 quashed the decision of the second appellate Court and remitted the matter back with the direction to re-examine the claim of the parties strictly in accordance with law. It was held that in was not open for the second appellate Court to reappraise the evidence on record without addressing itself to the questions of law within the scope of Section 331 of U.P.Z.A. & L.R. Act. It was held that in was not open for the second appellate Court to reappraise the evidence on record without addressing itself to the questions of law within the scope of Section 331 of U.P.Z.A. & L.R. Act. The observations of the Writ Court for upsetting the findings of the second appellate Court are as under : “In my opinion the second appellate Court has patently erred in restoring the judgment of the trial Court especially when it has not agreed with the finding of the trial Court regarding bhumidhari right acquired by some of the defendants in the disputed land. The second appellate Court has observed that even if the defendants were not bhumidhari, they cannot defeat the claim of the plaintiff-petitioners on the basis of their sirdari right, but the second appellate Court has failed to record a categorical finding in favour of the defendants regarding sir-dari rights on the basis of adverse continuous possession. Hence its judgment suffers from patent error of law. It is note-worthy that on the finding of fact recorded by the first appellate Court the plaintiffs suit was decreed and the second appellate Court has not addressed itself to the question as to whether it had jurisdiction to reappraise the evidence on record and it has also failed to point out the valid ground. I for interference with the judgment of the first appellate Court as contemplated by the provisions of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act. No doubt the second appellate Court has observed in paragraph 7 of its judgment that the first appellate Court has misread and misconstrued the evidence on record, but has failed to indicate the misreading and misconstruction.” 19. After remital, the second appellate Court i.e. the Board of Revenue allowed the second appeal vide judgment and order dated 14.2.1989 setting aside the order dated 19.2.1974 of the first appellate Court and matter was remitted to the first appellate Court to decide the appeal afresh in the light of the observations made in the aforesaid order. Hence this petition. 20. The second appellate Court came to the said conclusion by holding that the oral evidence produced by the parties had not been touched by the first appellate Court. The findings of the first appellate Court based on the documentary evidence, therefore, could not be sustained. Hence this petition. 20. The second appellate Court came to the said conclusion by holding that the oral evidence produced by the parties had not been touched by the first appellate Court. The findings of the first appellate Court based on the documentary evidence, therefore, could not be sustained. The reason given was that in deciding the plea of adverse possession, appreciation of both documentary as also the oral evidences, was necessary. The first appellate Court had committed illegality in not considering the oral evidences which was apparent on the face of the record. The relevant observations of the second appellate Court in paragraph No. 6 and 7 of its judgment are as under : “6. Thus the main question to be decided in the present second appeal is, as conceded by the counsels for the parties, whether the so-called land in dispute is in the remaining lot of Ramdeiya (out of the whole of 400 Bighas) or in the portion of a transferred land (150 Bighas) of which the defendants are the owners. The other points is in respect of possession over the land in suit. The lower appellate Court has given its finding in respect of the fact that the land in suit belonged to their remaining share of Ramdeiya not to the lot of 150 bighas transferred by her. This finding is based on no evidence. Hence a finding cannot be given on presumptions and inferences. 7. So far as the other point is concerned the lower appellate Court has only discussed the documentary evidence and has not touched the oral evidence produced by the parties. The Court must examine the documentary and oral evidence both in deciding the question of possession. Thus the lower appellate Court has committed an illegality apparent on the face of it.” 21. Learned counsel for the respondents at the very outset vehemently urged that the plea of adverse possession was raised before the Court below. The trial Court had recorded a categorical finding after appreciation of oral and documentary evidences that the names of the defendants/respondents were recorded in the revenue records of 1362-F and onwards. By oral evidence it was proved by the defendants that they were in possession of the suit land. The trial Court had recorded a categorical finding after appreciation of oral and documentary evidences that the names of the defendants/respondents were recorded in the revenue records of 1362-F and onwards. By oral evidence it was proved by the defendants that they were in possession of the suit land. The order passed by the second appellate Court is an order of remital with a direction to the first appellate Court to consider all the evidences on record and then to arrive at a fresh finding, it is, therefore, not required to be interfered in the present petition. There was no mandate of this Court to the second appellate Court to decide the second appeal on merits. Even otherwise, it was not open for the second appellate Court to re-appreciate the evidence and as such there was no option before it but to remit the matter back. The finding of the first appellate Court that the suit land was not part of 150 bighas of transferred land by the plaintiff Smt. Ramdeiya to the predecessors of the defendants, is based on no evidence, rather it is based on surmises and conjectures. The statements/alleged admission of the plaintiff recorded in the mutation case on 19.7.1939 and 25.10.1949 could not have been ignored by the first appellate Court. 22. The above statements being her admission were binding upon the plaintiff. The first appellate Court had erred in relying upon the Khasra No. 1359-F as solitary document to record its finding. The entries in Khasra No. 1356-F, 1358-F, 1361-F and 1367-F were required to be considered alongwith the oral evidences. The finding of the first appellate Court of entries in khasra of 1359-F being forged and fabricated is unsustainable as Patwari who had prepared the said khasra had not been examined. The forgery in the document could not be presumed by merely looking at the same. There was no dispute regarding the transfer of 150 bighas of land to the predecessors of the defendants on 15.7.1939. The said transfer was made on the basis of compromise arrived in a Court proceeding. The predecessors namely Badri Prasad, Chhitani and Basdeo were recorded as co-sharers with Smt. Ramdeiya, the plaintiff. In the said circumstance, the admission of the plaintiff that the predecessor of the defendants namely Badri Prasad, Chhitani and Basdeo were in possession over 150 bighas of transferred land could not have been read otherwise. The predecessors namely Badri Prasad, Chhitani and Basdeo were recorded as co-sharers with Smt. Ramdeiya, the plaintiff. In the said circumstance, the admission of the plaintiff that the predecessor of the defendants namely Badri Prasad, Chhitani and Basdeo were in possession over 150 bighas of transferred land could not have been read otherwise. 23. Even the plaintiff’s witness Ram Kumar admitted the transfer of the disputed land to Basdeo and others. The possession of the defendants over the land in dispute since before abolition of Zamindari i.e. enforcement of U.P.Z.A. & L.R. Act was proved by the statements of Babu Lal, Lekhpal; Preetam Singh Pradhan of the Gram Panchayat and Jagdish Prasad son of Chhitani who deposed in favour of the defendants. 24. The first appellate Court had gravely erred in reversing the findings of the trial Court ignoring the oral and documentary evidences on record and own admission of the plaintiff. The first appellate Court i.e. the Court of Additional Commissioner being the the last Court of fact had rightly been directed by the Second Appellate Court to re-examine the evidences on record which had been ignored by it. The order of remittal passed by the second appellate Court is strictly within the legal boundaries of Section 331 of U.P.Z.A. & L.R. Act read with Section 100 of the Code of Civil Procedure. 25. Learned counsel for the petitioner, on the other hand, submits that the second appellate Court had committed an error of law in remitting the matter back in as much as it was not permissible for the second appellate Court to set aside the findings of fact recorded by the lower appellate Court based on the evidence on record. Sufficiency or insufficiency of evidence to support the said findings could not be seen by the second appellate Court. It is not a case where the findings of first appellate Court are based on non-admissible evidence or beyond the evidence on record. Merely because another view was possible, the second appellate Court, could not have set aside the findings of fact of the first appellate Court. 26. The second appeal under Section 331 of U.P.Z.A & L.R. Act read with Section 100 of Code of Civil Procedure lies only in a case where a substantial question of law is raised or arises for consideration of the Court. 26. The second appeal under Section 331 of U.P.Z.A & L.R. Act read with Section 100 of Code of Civil Procedure lies only in a case where a substantial question of law is raised or arises for consideration of the Court. The second appellate Court has no power to re-appreciate the evidence or to remit the matter back only on the ground that some evidence on record was not examined by the first appellate Court. The merits of the findings of fact recorded by the first appellate Court had not been touched by the second appellate Court. In fact, no substantial question of law arose so to entertain the second appeal. The order passed by the second appellate Court, therefore, is liable to be set aside and the findings recorded by the first appellate Court are to be affirmed. 27. Considering these submission, having noted the facts and the findings returned by the three Courts below in detail, it is more than apparent that the findings of the trial Court is based on the statement of the plaintiff recorded in mutation case, her witness Ramkumar and the entries in the extracts of Khasra 1356-1359-F and 1361 to 1367-F. On the basis of the entries in khasra of1359-F, 1362-F and 1367-F onwards, it was recorded by the trial Court that the defendants were Qabiz i.e. in continuous possession of the land in suit. These entries were found supported by the statements of Pradhan of the village (D.W. 1), Jagdish Prasad, son of Chhitani and Lekhpal Babloo Lal who deposed that the khasra of 1362-F was prepared and Qabiz entry was made by him. 28. In so far as the entries in Khasra of 1359-F, though the trial Court had recorded that the copyist at the time of issuance of the certified copy of the said khasra made a note in the copying register that in original khasra, the cross mark in the remarks column was erased and the entry of defendants being Qabiz was made, however, it had simply rejected the contention of the plaintiff of it being a forged entry solely on the ground that the Lekhpal or Patwari who had prepared the said khasra had not been examined. So far as the possession of the defendants over the suit property is concerned, the conclusion was drawn that the defendants had proved their possession on the basis of entries in khasra of 1359-F and 1362-F. It was further recorded that even if they were termed as trespassers, they had perfected their right by adverse possession in view of the entries in Khasra of 1361-F. Thus, being Bhumidhar of the land in question, they could not be ejected from the suit land. 29. While recording these finding, the trial Court had simply misdirected itself to the fact that for the purpose of claiming Bhumidhari right after abolition of Zamindari, the entry of Khasra of 1356-F and 1359-F were the most relevant entries. The entries of the defendants being in possession in the subsequent years i.e. after 1362-F were of no relevance in so far as the conversion of proprietory right into Bhumidhari right after abolition of Zamindari, is concerned. 30. The first appellate Court, on the other hand, had recorded its findings considering the entries of Khewat and Khasra of 1356-F and Khatauni and Khasra of 1359-F. It was categorically recorded that in Khewat of 1356-F, though the name of Chhitani, Badri and Gangia were recorded on the remaining 150 bighas of land and the name of Smt. Ramdeiya the plaintiff was recorded as proprietor on (253-10-0) bighas of land, however, in the khatauni of the same year, it was recorded that the plot in dispute were “Sir of Malkhan” and no-one else except the plaintiff was found in possession. In Khatauni of 1359-F, Smt. Ramdeiya was recorded as Sir holder holding the entire Sir land including the land in suit. But in khasra of 1359-F, for the first time, the possession of the defendant over the suit land was recorded. There was no entry of the names of the defendants in Khatauni of the said year. Having taken cognizance of the note of the copyist, as mentioned above, looking to the original khasra of 1359-F summoned by the parties a finding of fact has been recorded by the first appellate Court in the following words— “This is the first time that Khatauni of 1359-F but in the Khasra it appers that the possession of the defendants is recorded. This is the first time that their possession has come to be recorded in the village papers. This is the first time that their possession has come to be recorded in the village papers. There is a note in the copy of the Khasra made by the copyist that the names of defendants have been recorded in possession in the remarks column after erasing the cross marks. At the time of arguments, I find that the parties had already summoned the original. I looked into the Original. The erasers is there but so finally made that it was not apparent to the naked eye. But when the same paper was put before the light and seen from behind the eraser was very clear against all the plot in the plots in the remarks column and the name of the defendants written in possession on them. After being convicted that the names have been written after wards I draw a conclusion that the defendants were not in possession in this year at all. It appears that they got their possession recorded in collusion with the Lekhpal with intention to claim rights in future, it appears so from the fact that they did not come to claim their possession and bhumidhari rights immediately in the following years.” 31. The first appellate Court, thus, having found the entry in Khasra, a forged entry, came to the conclusion that the defendants were not in possession of the suit land in the year 1359-F i.e. on the date of vesting i.e. July, 1, 1952. In the following year i.e. 1362-F, their possession was recorded only on plots i.e. part of the land. This was, therefore, held that the records were not sufficient to hold that the defendants had been in continuous possession of the suit land since the time of the transfer of proprietary right in their favour by Smt. Ramdeiya, the plaintiff. As a result thereof, they could not be said to have become Bhumidhar of the suit land on the basis of alleged transfer. 32. So far as the plea of the defendants that the suit land included the transferred land of 150 bighas in favour of their predecessors, it was held that the statements of Smt. Ramdeiya dated 15.7.1939 and 12.4.1967 recorded in mutation proceedings were not sufficient to hold that the transfer was with respect to the suit land. 32. So far as the plea of the defendants that the suit land included the transferred land of 150 bighas in favour of their predecessors, it was held that the statements of Smt. Ramdeiya dated 15.7.1939 and 12.4.1967 recorded in mutation proceedings were not sufficient to hold that the transfer was with respect to the suit land. No specific plots had been mentioned therein nor there was any admission of proprietary right having been transferred to her husband’s brother i.e. predecessors in interest of the defendants. 33. It was further held by the first appellate Court that no documentary evidence was on record to hold that from the date of transfer till abolition of Zamindari, the predecessors of the defendants were in possession of the suit land. The burden was upon the defendants to prove the transfer and their possession as the plea was of adverse possession. From the statements of Smt. Ramdeiya, no presumption could be drawn that Sir and Khudkasht rights were also transferred by Smt. Ramdeiya with regard to 150 bighas of land allegedly transferred on the basis of compromise. 34. It was, thus concluded that it was not possible to hold that the suit land was included in 150 bighas of land transferred by Smt. Ramdeiya and after abolition of Zamindari, no Bhumidhari right would survive with her with regard to the suit land. On the plea of adverse possession was concerned, it was recorded by the first appellate Court that the defendants had trespassed the suit land in the year 1367-F and, therefore, the ejectment suit brought by the plaintiff was perfectly within time. 35. These findings of fact of the first appellate Court cannot be said to be findings based on no material evidence on record or it cannot be said that the evidence which had been appreciated by the first appellate Court was not relevant for the purpose of recording the said finding. The findings noted above, cannot be said to be based on mere on presumption or assumptions. It is well-settled that the findings of fact of the first appellate Court which is based on some evidence on record cannot be interfered or set aside by the second appellate Court. 36. The question which the second appellate Court posed to itself was not relevant for the purpose of adjudication of dispute before it. It is well-settled that the findings of fact of the first appellate Court which is based on some evidence on record cannot be interfered or set aside by the second appellate Court. 36. The question which the second appellate Court posed to itself was not relevant for the purpose of adjudication of dispute before it. The plea of adverse possession of the defendants was an alternative plea and could not be decided in exclusion of the records namely the khasras of the relevant years, i.e. the records of possession. The findings of forgery in the khasra of 1359-F could not have been upturned by the second appellate Court only on the ground that the oral evidence of Lekhpal (who had deposed to prove the entries of 1367-F), and of one of the alleged co-sharers on record, had not been considered. 37. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and facts. The first appellate Court being the final Court of fact was required to examine the relevant evidence on record and to arrive at its own decision on each points independently to that of the trial Court. In the instant case, the first appellate Court had independently assessed the evidence of the parties and considered the relevant points of determination which arose before it for adjudication. 38. The entire evidence considered and discussed in detail by it had a bearing on the issues raised by the parties. 39. The Board of Revenue being the Court of second appeal could only examine as to whether a substantial question of law arose for adjudication before it. The powers under Section 331 of the U.P. Z.A. & L.R. Act are pari materia to the power of the Civil Court under Section 100 of the Code of Civil Procedure. In exercise of the power of the second appellate Court, findings of fact of the first appellate Court could not have been disturbed lightly. 40. The right of second appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with the law inforce at the relevant time. 40. The right of second appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with the law inforce at the relevant time. The conditions mentioned in Section 100 of the Code of Civil Procedure must be strictly fulfilled before the second appeal can be maintained and no Court has the power to add or enlarge on those grounds. The second appeal cannot be decided on material equitable grounds. The findings of fact, however, erroneous may be, cannot be disturbed by the second appellate Court in exercise of power under Section 100 of Code of Civil Procedure (331 of U.P.Z.A. & L.R. Act) unless it is found to be suffered from perversity being based on no evidence or on wrong appreciation of evidence on record. The substantial question of law has to be distinguished from a substantial question of fact. It is not within the domain of the second appellate Court to investigate the grounds on which, the findings were arrived at by the last Court of fact, being the first appellate Court. 41. The above view taken by this Court is fortified from decision of the Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, AIR 1999 SC 2213 . It has been observed therein that the first appellate Court could not ordinarily reject the witness accepted by the trial Court in respect of credibility but even where it has rejected the witness accepted by the trial Court, the same cannot be a ground for interference in second appeal when it is found that the first appellate Court has given satisfactory reason for doing so. Paragraph No. 5 and 6 of the said report are relevant to be reproduced as under : “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. 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 tower appellate Court were erroneous being contrary to the mandatory provisions of law applicable of 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. 6. If the question of law termed as substantial question stands already decided by a larger bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of Jaw. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entrie and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it Cannot be termed to be an error either of law or procedure requiring interference in second appeal. This Court in Reserve Bank of India and another v. Ramakrishan Govind Morey, AIR (1976) SC 830 held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference.” 42. This Court in Reserve Bank of India and another v. Ramakrishan Govind Morey, AIR (1976) SC 830 held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference.” 42. In the instant case, the second appellate Court has disturbed the finding of the first appellate Court without adhering to the principles of and the limitations imposed by Section 100 of the Code of Civil Procedure. In the impugned judgment and the order dated 14.2.1989, the second appellate Court has rejected the finding of first appellate Court on the ground that the finding on the question of possession of the first appellate Court was based on no evidence and had been given on presumption and assumptions as oral evidence produced by the parties had not been touched. It was held that for adjudication on the question of adverse possession both oral and documentary evidences were required to be discussed. 43. Having considered the evidences adduced by the parties in detail and the discussion made therein by the first appellate Court, this Court is of the considered opinion that the finding of first appellate regarding possession of the defendants over the suit property cannot be said to be a finding based on no evidence. The oral evidence of Lekhpal and one of the alleged co-sharers, even if considered, would be of no consequence in as much as the findings of fact based on the documentary evidence could not have been upturned by the second appellate Court. In other words, it cannot be said that the findings of the first appellate Court are based on no admissible evidence. Sufficiency or insufficiency of evidence to arrive at a finding of fact cannot be a ground for the second appellate Court to substitute its opinion for the opinion of the first appellate Court. There was no occasion for setting aside the findings of fact recorded by the first appellate Court on admissible evidence on record. 44. No question of law much less a substantial question arose requiring inference by the Board of Revenue in exercise of its jurisdiction of second appeal under Section 331 of the U.P.Z.A & L.R. Act, akin to Section 100 of the Code of Civil Procedure. 44. No question of law much less a substantial question arose requiring inference by the Board of Revenue in exercise of its jurisdiction of second appeal under Section 331 of the U.P.Z.A & L.R. Act, akin to Section 100 of the Code of Civil Procedure. The order of remittal of the Board of Revenue dated 14.2.1989 impugned in this petition, being against the settled norms and contrary to the mandate of Section 100 of the Code of Civil Procedure cannot be sustained and is hereby quashed. 45. The judgment and order dated 19.2.1974 by the Additional Commissioner, Jhansi Division Jhansi is hereby affirmed. The writ petition is allowed. No order as to cost.