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2018 DIGILAW 2557 (ALL)

Kamlesh Kumar v. Bal Krishna

2018-12-18

JASPREET SINGH

body2018
ORDER : Jaspreet Singh, J. 1. This is the plaintiffs' second appeal whereby their suit for mandatory injunction and possession was dismissed by the trial court and his appeal under Section 96 CPC before the Additional District Judge, Pratapgarh also met the same fate. 2. The aforesaid second appeal was admitted by this Court vide order dated 04.12.1980, however, at the time of admission, the substantial questions of law were not framed. 3. During the pendency of the above appeal, the appellants had made an application under Order XLI Rule 27 CPC for filing additional documents on record vide Civil Misc. Application No.336 of 1988 and this Court by means of the order dated 26.08.1988 had directed that the said application shall be heard along with this appeal. Thus, in view of the above, the said application has been heard along with the second appeal. 4. Before delving into the merits of the substantial question of law, certain relevant facts for the purposes of arriving at an effective and just adjudication are being noted hereinafter. 5. The appellants are the legal heirs of one Shri Parmatma Deen Rai. They instituted a suit bearing Regular Suit No.12 of 1976 in the Court of Munsif (I), Pratapgarh seeking a decree of possession and mandatory injunction in respect of property which was described at the foot of the plaint. It was the specific case of the plaintiffs-appellants that Government of India had made a Colony for the purposes of rehabilitating the Refugees and to facilitate the same large number of quarters were constructed. It is in view of the above that Quarter No.10 was allotted to Shri Parmatma Deen, the predecessor of the plaintiffs-appellants. It was specifically pleaded in Para-5 of the plaint that on the southern side of the Quarter No.10, some Sahen land was allotted to Shri Parmatma Deen alongwith Quarter No.10 and the same was also depicted in a site plan with the letters A, B, D, H, I, E, C, in the site plan annexed with the suit in plaint. It was specifically pleaded in Para-5 of the plaint that on the southern side of the Quarter No.10, some Sahen land was allotted to Shri Parmatma Deen alongwith Quarter No.10 and the same was also depicted in a site plan with the letters A, B, D, H, I, E, C, in the site plan annexed with the suit in plaint. It was pleaded that a deed of conveyance was executed in favour of Shri Parmatma Deen on 25.01.1965, which was duly registered on 05.02.1965 and thus Shri Parmatma Deen, the predecessor of the plaintiffs-appellants became the owner and in possession of Quarter No.10 as well as the land appurtenant to the said quarter situate in southern side which was the Sahen land. 6. It was also pleaded that the plaintiffs and his family members were using the aforesaid Sahen land as a vegetable garden as well as had acquired easementary right of air and light and the waste water of the house of the plaintiffs also was draining through the "Nali", which was on this land in question. 7. Since, the defendants attempted to encroach upon the Sahen Land and rather had made a boundary wall over the same, hence the suit was filed for removal of the illegal constructions raised by the defendants and for the aforesaid purposes sought a decree of mandatory injunction and further possession was also sought and a prayer was made that the plaintiffs be put in possession of the said sahen land. 8. The defendants-respondents contested the case by filing their written statement dated 06.03.1976 and categorically pleaded that the plaintiffs had not given the exact and correct position of the disputed land in the site plan. It was pleaded by the defendants that though Shri Parmatma Deen was allotted Quarter No.10 which had an area of 72 sq. yards. However, there was no sahen land allotted to the plaintiffs alongwith the said Quarter No.10 and the said land belonged to the Government. It was stated by the defendants that Quarter No.11 was allotted and sold by the Government to Shri Sughani Chandr by means of deed dated 08.03.1961. The Defendant No.1 was already in the premises of Quarter No.11 as a tenant of Shri Sughani Chandr and later he purchased the said quarter from Shri Sughani Chandr by means of registered deed dated 06.08.1974. 9. The Defendant No.1 was already in the premises of Quarter No.11 as a tenant of Shri Sughani Chandr and later he purchased the said quarter from Shri Sughani Chandr by means of registered deed dated 06.08.1974. 9. The defendant No.1 was in possession of the Quarter No.11 as well as the land in question and thus primarily the defence of the defendants was to the effect that neither the plaintiffs were the owner of the land in question nor they were in possession. 10. The trial court had framed four issues. However, for deciding the controversy, Issues No.1 and 2 are the ones which are material. Issue No.1 was framed to the effect that as to whether the land in question was the Sehan land of the plaintiff, who was given a quarter, in terms of the sale-deed? Issue No.2 was framed to the effect that as to whether the plaintiff was in possession and if not its effect ? 11. The learned trial court after considering the evidence of the parties held that the Quarter No.10 and Quarter No.11 were situated in different blocks and the land between the two blocks was not the sahen of the plaintiff. It held that the plaintiff was not able to establish his possession over the land in question. Since his right was confined only in respect of 72 sq. yards in respect of Quarter No.10 and, therefore, he had no right over the land situated on the southern side of Quarter No.10. The learned trial court also concluded that the plaintiff was not in possession and accordingly he was not entitled to any mandatory injunction nor the plaintiffs have any right to seek removal of the constructions as prayed. With the aforesaid findings, the suit was dismissed by means of the judgment and decree dated 14.09.1978 passed by the learned Munsif, Sadar, Pratapgarh. 12. The plaintiffs-appellants challenged the aforesaid judgment and decree dated 14.09.1978 by means of regular civil appeal before the learned court of Civil Judge, Pratapgarh, registered as Civil Appeal No.170 of 1978, who exercised powers of the first appellate Court. The first appellate Court also relied upon the evidence and the findings of the learned trial court and did not find any error and affirmed the judgment passed by the learned trial court dismissing the appeal of the plaintiffs-appellants. 13. The first appellate Court also relied upon the evidence and the findings of the learned trial court and did not find any error and affirmed the judgment passed by the learned trial court dismissing the appeal of the plaintiffs-appellants. 13. At the time of hearing of this second appeal, this Court framed the following substantial questions of law, which are being mentioned hereinafter for appreciation of the contention raised by the learned counsel for the appellants:- "I. Whether failure to interpret the document of title correctly, vitiates the judgment, as the same involves substantial question of law? II. Whether in case of conflict in plot number and boundary, the boundary will prevail, in ascertaining the disputed land?" 14. Learned counsel for the appellants also pressed his application filed under Order XLI Rule 27 CPC and, therefore, before adverting to the substantial questions of law, it is necessary to decide the said application. 15. By means of the Civil Misc. Application No.336 of 1988, the plaintiffs-appellants persuaded this Court to allow admittance of documents filed by the plaintiff during pendency of this appeal under Order XLI Rule 27 CPC. It was pleaded in the said application that a licence was granted to Shri Parmatma Deen, the predecessor of the plaintiffs-appellants by the State of Uttar Pradesh through Deputy Commissioner, Pratapgarh on 23rd August 1951, by which, Shri Parmatma Deen was permitted to occupy not only Quarter No.10 but also space measuring 15 ft., lying between the Quarter Nos.10 and 11 for the purposes of a family garden. It was further stated that on 20th November, 1951, an agreement was executed on behalf of the President of India and Shri Parmatma Deen, the predecessor of the plaintiffs-appellants in respect of Quarter No.10 and later the plaintiffs-appellants became the owner of the property on the basis of deed dated 25.01.1965. The appellants also wanted to bring on record the copy of the challan form indicating that the value of the land in question was paid by Shri Parmatma Deen and a copy of the order/resolution dated 14th November, 1966 said to have been passed by the Committee, Nagar Palika, Pratapgarh to indicate that the Committee of Nagar Palika, Pratapgarh had taken a decision directing Shri Sughani Chandr to remove his wall by 6 ft. and to leave 6 ft. of "rasta" along the 'Pakki Nali" on the southern side. 16. and to leave 6 ft. of "rasta" along the 'Pakki Nali" on the southern side. 16. The grounds taken in the application for having not been able to file the said documents before the two courts below was mentioned in Paragraph-9 of the application and it is stated that the aforesaid papers were in possession of the brother of Shri Parmatma Deen "the predecessor of the plaintiffs-appellants". After the death of the father of the appellants, they were not on goods terms with their uncle and it is only in the third week of February, 1987 through some colleague of the appellant's uncle and after great efforts could the appellant obtain the aforesaid papers, which have been filed before this Court with the aforesaid application. 17. At the very outset, it may be stated that the additional evidence cannot be admitted as a matter of right by the appellate court. Order XLI Rule 27 CPC starts with a non-obstante clause and states that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary. The aforesaid provisions also contains three conditions which first must be met before the appellate court may allow such evidence or document to be produced. 18. For better appreciation, Order XLI Rule 27 CPC is being reproduced hereinafter:- "27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause." 19. In the case of Union of India vs. Ibrahim Uddin and another, reported in (2012) 8 SCC Page 148, the Hon'ble Supreme Court has held that an application under Order XLI Rule 27 CPC is to be considered at the time of hearing of the appeal on merits so as to find out whether the documents or the evidence sought to be adduced have any relevance or bearing on the issues involved. 20. The admissibility of additional evidence does not depend upon the relevancy of the issue on hand or on the fact whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depend upon whether or not the appellate court requires evidence sought to be adduced to enable it to pronounce judgment or for any such substantial cause. 21. The true test laid down by the Hon'ble Supreme Court is whether the appellate court is unable to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. 22. Learned counsel for the appellants has relied upon the decision in the case of Malyalam Plantations Ltd. vs. State of Kerala, reported in 2011 AIR SCW Page 264; Shyam Gopal Bindal vs. Land Acquisition Officer, reported in AIR 2010 SC Page 260 and Hari Har Dutt Lal vs. Wari Ali, reported in 2013 (31) LCD Page 1176. 23. The judgment relied upon by the learned counsel, Malyalam Plantations Ltd. (supra) is only on the propisition that if any petition is filed under Order XLI Rule 27 CPC in an appeal, it is incumbent on the part of the appellate Court to consider it at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. Since the opportunity has not been deprived to the appellants and their application is being considered on its own merits, thus the aforesaid judgment does not help the appellants and moreover this judgment does not lay down any guideline as to in which circumstances the additional evidence can or cannot be taken. 24. Since the opportunity has not been deprived to the appellants and their application is being considered on its own merits, thus the aforesaid judgment does not help the appellants and moreover this judgment does not lay down any guideline as to in which circumstances the additional evidence can or cannot be taken. 24. The case of Shyam Gopal Bindal (supra) also does not help the plaintiffs-appellants inasmuch as in that case the application for taking document on record related to a document of title while in the present case there is no dispute so far as the title of the plaintiff in respect of Quarter No.10 is concerned. The question regarding the Sehan land as alleged by the plaintiffs, is now being asserted is the subject matter of a licence and significantly there was no pleadings of the plaintiffs in respect of the licence. Thus, the judgment cited by the plaintiffs do not help. 25. In the present case, it is admitted to the appellants that the documents were well within the knowledge of the appellants and it is not a case which is covered by Clause (a) or Clause (aa) of Rule 27 of Order XLI CPC. 26. The only question that needs to be considered for disposal of the aforesaid application is whether this Court would require such evidence or documents to enable it to pronounce a judgment effectively and for this purpose it is to be seen as to whether the conditions mentioned in Clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. 27. It is in this regard that the judgment of the Hon'ble Supreme Court in the case of A. Andisamy Chettiar vs. A. Subburaj Chettiar, reported in (2015) 17 SCC Page 713, is relevant wherein it considered the scope of Clause (b) of sub-rule (1) of Rule 27 CPC and the relevant portion of the said judgment is being reproduced hereinafter:- "12 From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition, i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. 13. In K.R. Mohan Reddy vs. Net Work Inc., (2007) 14 SCC 257 , this Court has held as under: - “19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction…...” 14. In North Eastern Railway Admn. vs. Bhagwan Das, (2008) 8 SCC 511 , this Court observed thus:- “13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist…..…” 15. In N. Kamalam (dead) and another vs. Ayyasamy and another, (2001) 7 SCC 503 , this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under: “……. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist…..…” 15. In N. Kamalam (dead) and another vs. Ayyasamy and another, (2001) 7 SCC 503 , this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under: “……. the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal – it does not authorize any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.” 16. In Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148 , this Court has held as under: - “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced…………..”" 28. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced…………..”" 28. Applying the principles as mentioned above to the present case, learned counsel for the appellant Shri P.V. Chaudhary strenuously urged that the two courts below had recorded a finding against the appellants merely because it could not establish its right over the sahan land and the documents sought to be produced at this stage would go to show that the State had granted a licence to the predecessor of the appellants which substantially proved the case and thus their right over the said land stood established and in case if the aforesaid evidence is ignored, it shall be the plaintiffs-appellants, who shall suffer irreversible damage, therefore, the aforesaid documents are squarely covered within the meaning of documents which the appellate court would require to pronounce the judgment and is within the phrase 'or for any substantial cause' as mentioned in Clause (b) of sub-rule (1) of Rule 27 as mentioned above. 29. The sheet anchor of the submission of the learned counsel for the appellants is the document dated 23rd August, 1951 which is said to be a licence granted by the Deputy Commissioner, Pratapgarh to Shri Parmatma Deen, the predecessor of the plaintiffs-appellants, wherein it mentions that the licencee shall be permitted to occupy Quarter No.10 and a space measuring 15 ft. lying between Quarter Nos.10 and 11. It is on the strength of the aforesaid that the learned counsel for the appellants submits that the aforesaid document is extremely essential and if the aforesaid documents are taken on record and admitted, the result of the second appeal would be different. 30. This Court has considered the submissions of the learned counsel for the appellants. However, it is difficult to appreciate the submissions of the learned counsel for the reasons that the case setup by the plaintiffs-appellants in the plaint was on the basis of deed executed by the State dated 21.01.1965. It was the specific case of the plaintiffs-appellants that while Shri Parmatma Deen, the predecessor of the plaintiffs was allotted Quarter No.10 alongwith sahan land between the Quarter Nos.10 and 11 for which a conveyance deed was executed on 25.01.1965. It was the specific case of the plaintiffs-appellants that while Shri Parmatma Deen, the predecessor of the plaintiffs was allotted Quarter No.10 alongwith sahan land between the Quarter Nos.10 and 11 for which a conveyance deed was executed on 25.01.1965. It was also specifically pleaded that Shri Parmatma Deen had expired in the year 1975 and further that the defendants had already raised a boundary wall over the aforesaid land in question. 31. Thus, admitting that the plaintiffs-appellants were out of possession. Even assuming if the aforesaid documents are taken into consideration, it would reveal that the land in question did not belong to the plaintiffs rather they were mere licencee in pursuance of a licence granted to Shri Parmatma Deen dated 23rd August, 1951 which was temporary and at the pleasure of the licensor. Subsequent to the execution of the alleged document of licence, an agreement was entered between the State and Shri Parmatma Deen dated 20th November, 1959. The said agreement related only to Quarter No.10, situate in Block-1, Refugee Colony, Pratapgarh and there is no mention of any license. Subsequently, even the deed of transfer does not refer to any licence having been granted to the plaintiffs or their predecessor and nor the said licence was extended and over all the title deed was executed on 25.01.1965 and it is on the basis of the aforesaid title deed that the plaintiffs-appellants claimed title over the Quarter No.10 and the disputed land as their sehan. 32. Since, it was for the plaintiffs-appellants to have proved their case regarding the land in question being their sahan land as pleaded by them situate on the southern side of the Quarter No.10 and having failed to do so despite knowing the case of the opponent. Thus, it is not for the appellate Court to pass an order so as to patch-up the weakening of the evidence of an unsuccessful party before the trial court. 33. In the present case at hand it reveals that there are no pleadings of the plaintiffs-appellants regarding the foundation of the licence and the plaint is absolutely silent on the aforesaid aspect. Had there been any pleadings and only the document was being brought on record, it would have been different. 33. In the present case at hand it reveals that there are no pleadings of the plaintiffs-appellants regarding the foundation of the licence and the plaint is absolutely silent on the aforesaid aspect. Had there been any pleadings and only the document was being brought on record, it would have been different. Even when the aforesaid application was filed, there has been no effort by the plaintiffs to seek an amendment in the plaint since 1988 and till 2018, the plaintiffs-appellants have not taken any steps to bring any foundation in its pleadings. Now in absence of any pleadings, no evidence can be permitted to be led [See 2010 (28) LCD Page 216]. 34. The ingredient regarding the ability to pronounce judgment is to be understood as to the 'ability' to pronounce judgment satisfactorily to the mind of the Court, but mere difficulty is not sufficient to issue such direction for taking additional document on record. 35. Considering the aforesaid, the Court is of the considered view that the plaintiffs have not been able to make out any sufficient cause for taking the additional evidence on record inasmuch as explanation given in the affidavit is too general and moreover the Court also does not find any difficulty in pronouncing the judgment on merits in absence of the additional documents sought to be brought on record to do complete justice as the plaintiff did not set up any case on the basis of licence and rather it was pleaded that it was a sehan land, which in law has a different connotation than licence. 36. The word 'appurtenant' has not been defined but the Hon'ble Supreme Court in the case of Maharaj Singh vs. State of U.P., AIR 1976 SC 2602 has explained the meaning of word 'appurtenant'. "'Appurtenance', in relation to a dwelling, or to a school, college includes all land occupied therewith and used for the purpose thereof (Words and Phrases Legally Defined Butterworths, 2nd Edn.). The word 'appurtenances' has a distinct and definite meaning .... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant and which would, in truth, pass without being specially mentioned ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant and which would, in truth, pass without being specially mentioned ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression 'appurtenance'." 37. Moreover it is nowhere indicated or pleaded as to how the aforesaid land was appurtenant and necessary for the beneficial enjoyment of the quarter allotted and sold to the plaintiff. 38. Considering this question at this later stage in absence of any factual foundation would entail reopening of the case which this Court is not inclined to do as there is not enough material nor any cogent ground has been taken to persuade the Court to exercise powers to take the additional documents on record, so far as above second appeal is concerned. Thus, for the above reasons, the application for taking additional evidence on record shall stand rejected. 39. Now coming to the substantial questions of law as framed. 40. The first question Whether failure to interpret the document of title correctly, vitiates the judgment? 41. In the instant case from the evidence led by the parties, the two courts below have correctly arrived at finding that the right of the plaintiffs was established only in respect of Quarter No.10. The learned trial court has considered Exhibit-2, which is the sale-deed of the plaintiffs which relates to only Quarter No.10 with an area of 72 sq. yards. The aforesaid deed which is much subsequent i.e. relating to the year 1965 and does not make a mention of any land appurtenant over which the plaintiffs could have been given any licence. Moreover, it will also be relevant to be note that the plaintiffs has pleaded, the aforesaid land to be its sehan whereas it is the admitted case of the parties that it was the Government who developed a colony to rehabilitate the refugees and, therefore, it is not any land which came to be vested with any of the parties which could be termed as sehan. 42. Thus, the plaintiffs-appellants have not been able to prove its case regarding its right over the land in question which is the subject matter of the dispute. 42. Thus, the plaintiffs-appellants have not been able to prove its case regarding its right over the land in question which is the subject matter of the dispute. The lower appellate Court after considering the evidence both documentary and oral came to a conclusion that the Refugee Colony was established by the State over five blocks. The house or quarter No.10 of the plaintiff was situated in Block-1 as mentioned in the deed of conveyance executed in favour of the plaintiff, while Quarter No.11 belonging to the defendants is part of Block No.2. It is the State which made a drain (Nali) parallel to the wall draining the water of the residents/allottees of the quarters, however there was no evidence on record to suggest that any land was settled with any of the allottees of any quarter. Thus, the two courts have correctly arrived at the findings that the plaintiff has not been able to prove its case regarding title or possession over the disputed land. 43. Thus, there is no error in the findings of the two courts below regarding the title of the plaintiffs, which has been held confined only to Quarter No.10 nor the courts have committed any error in interpreting the document of title. Thus, the first question as urged by the learned counsel for the appellants fails. 44. The second substantial question of law pressed by the learned counsel for the appellants that in case of conflict in plot number or boundary, it is the boundary which shall prevail in ascertaining the disputed land. Learned counsel for the appellants in order to substantiate its submission has relied upon judgment, reported in AIR (35) 1948 Privy Council Page 207. 45. The Court has considered the submissions and the judgments cited by the learned counsel for the appellants. So far as the proposition is concerned, there is not much quarrel inasmuch as it is fairly settled. What is doubtful is the applicability of the aforesaid decision in the present facts and circumstances. It is not disputed that the plaintiff is the owner of Quarter No.10. It is also not in dispute that the boundaries of the quarter No.10 has been correctly mentioned in the deed and for ready reference, the same is being reproduced as under:- "SCHEDULE-I All the piece or parcel of the land and/or building(s) situated at Qr. It is not disputed that the plaintiff is the owner of Quarter No.10. It is also not in dispute that the boundaries of the quarter No.10 has been correctly mentioned in the deed and for ready reference, the same is being reproduced as under:- "SCHEDULE-I All the piece or parcel of the land and/or building(s) situated at Qr. No.10, Block No.1, Refugeen Colony, Pratapgarh containing by admeasurement 72 sq. yards or thereabouts and bounded On the North By Quarter No.9 On the South By Quarter No.11 On the East By Open Land On the West By Open Land" 46. Thus it is abundantly clearly that the subject matter of the deed was Quarter No.10, situated in Block-1 of the Refugee, Pratapgarh measuring 72 sq. yards and the boundaries of southern side mentions Quarter No.11. This, in any manner, leaves no room for any conflict between the plot number and the boundary amongst the parties. The quarter number, boundaries as well as the spot position was clearly demarcated and available in both the pleadings and the evidence of the two courts below. Thus, there was no dispute or conflict regarding the plot number or the boundaries in ascertaining the disputed land. Accordingly, the second question urged by the learned counsel for the appellant also fails. It is no more res integra that identifiability of land is a pure question of fact and it is not open for the second appellate court exercising power under Section 100 CPC to re-assess the evidence in respect thereto. 47. It has been consistently held by the Hon'ble Supreme Court as also in the case of Santosh Hazari vs. Purushottam Tiwari (2001) 2 SCC Page 179 that "to be a question of law involved in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 48. A perusal of the judgment of the trial court as well as first appellate court would indicate that it has extensively considered the evidence adduced by the parties for deciding the issues of which th parties went to trial. The first appellate court is the final court of fact and pure findings of fact remain immune from challenge before the High Court in second appeal. 49. Be that as it may, in view of the scope of the second appeal as mentioned above, there is no doubt that the judgment passed by two courts below is based on evidence and sound reasons and being pure findings of fact cannot be assailed before this Court in second appeal. This Court is of the view that this appeal is concluded on concurrent findings of fact and the learned counsel for the appellant has not been able to establish any perversity in the judgment of the two courts below. 50. As a result, the second appeal lacks merit and is accordingly dismissed. The judgment and decree passed by the two courts below is affirmed. No order as to costs.