JUDGMENT : Jyotsna Rewal Dua, J. 1. Instant appeal had been preferred by the defendant against the judgment and decree dated 31.07.2007, passed by learned District Judge, Kangra, at Dharmshala, H.P. affirming the judgment and decree dated 22.8.2005, passed by learned Civil Judge, (Junior Division), Indora, District Kangra, H.P. whereby the suit filed by the respondent/plaintiff was decreed. Original plaintiff and defendant have died during the pendency of litigation and have been substituted by their legal heirs. Parties herein are being referred as they were in the learned trial Court below. 2. The factual matrix of the case is:- (i) Plaint: Suit was filed by the plaintiff, seeking possession of land bearing khata No. 136 min, Khatauni No. 230, Khasra No. 495, measuring 0-44-51 hectares, situated in Tika and Mauza Dinni, Tehsil Indora, District Kangra. The possession was sought on the strength of title. (ii) The case as set up in the plaint was that; plaintiff alongwith other co-sharers, was owner in possession of the suit land, during settlement operation carried out in the year 1984-85, the defendant got himself recorded as "Kabiz" over the suit land, allegedly in connivance with the settlement authorities and on that basis took possession of the suit land in November 1990. It was further the stand of the plaintiff that the said possession of defendant over the suit land was without the consent, behind the back of the plaintiff and the other co-sharers. The defendant was asserted to be in illegal and wrongful possession over the suit land. Revenue records in form of jamabandis for the years 1979-80, 1989-90 and 1994-95, showing plaintiff to be co-owner of suit land were enclosed. (iii) In the written statement, the defendant asserted himself to be owner in possession of his private land in same village (Dinni) and therefore entitled to have proprietary rights over the "shamlat hasab rasad malguzari" of village Dinni. It was the stand of the defendant that he is in possession over the suit land, from the time of his forefathers, as a co-sharer. (iv) Parties led their evidence. On the basis of pleadings and evidence led by the parties, learned trial Court, vide its judgment dated 22.08.2005, decreed the suit for possession. The decree has been affirmed in appeal by the learned first Appellate Court on 31.07.2007. (iv) Parties led their evidence. On the basis of pleadings and evidence led by the parties, learned trial Court, vide its judgment dated 22.08.2005, decreed the suit for possession. The decree has been affirmed in appeal by the learned first Appellate Court on 31.07.2007. Feeling aggrieved against the concurrent judgments and decrees against him, the defendant/appellant has filed instant second appeal before this Court. 3. This appeal was admitted on 27.11.2008 on following substantial questions of law:- "1. Whether the two courts below were justified in granting a decree for possession to the plaintiffs-respondents when the legality of possession of the defendant-appellant over the suit land had been established? 2. Whether the two courts below were justified in ignoring the fact that the suit of the plaintiff was barred by limitation? 3. Whether the ld. First appellate Court was justified in rejecting the application under O.6, R.17, CPC filed by the defendant-appellant, seeking amendment of the written statement?" 4. I have heard learned counsel for the parties and gone through the record: (i) Question No. 1 (justifiability of the concurrent judgments and decrees of possession against defendant): Mr. Arush Matlotia, learned counsel for the defendant/appellant contended that the defendant was in established possession over the suit land from the time of his forefathers and had been cultivating the same. Relying upon the statements of DW-1 and DW-2, he contended that defendant was the owner in possession over the suit land, suit land was "shamlat hasab rasad malguzari" and defendant was also a malguzar, therefore, he is entitled to retain the possession over the suit land in that capacity. (ii) Per contra, Mr. Naresh Kaul, learned counsel for the respondent/plaintiff, supported the judgments and decrees passed in his favour by the learned Courts below. He argued that; defendant/appellant was not the owner over the suit land; even from the statements of DW-1 and DW-2, ownership of defendant/appellant over the suit land was not proved; name of defendant/appellant was entered in the record as "Kabiz" on the basis of incorrect entry prepared during settlement carried out in the year 1984- 85, no advantage of such incorrect revenue entries can be given to the defendant/appellant to retain his unlawful possession. (iii) Observations: (a) Documentary evidence: Ex.P4, jamabandi for the year 1979-80, reflects name of predecessor of plaintiff (Banku), as co-owner over the suit land (shamlat hasab rasad malguzari). (iii) Observations: (a) Documentary evidence: Ex.P4, jamabandi for the year 1979-80, reflects name of predecessor of plaintiff (Banku), as co-owner over the suit land (shamlat hasab rasad malguzari). Name of defendant does not figure here. In Ex.P3, (Missal Haqiyat), for the year 1984-85, Banku, is reflected as one of Co-owner over the suit land, however, name of defendant figures as "Kabiz." Same position continues in Ex.P2, jamabandi for the year 1989-90. Ex.P1, Jamabandi for the year 1994-95, of village Dinni, reflects that Khasra No. 495, is recorded in the ownership of shamlat Hasab Rasad Malguzari, wherein, the plaintiff figures as one of the co-sharers, and defendant is recorded as "Kabiz" in village Dinni. (b) There is no document on record to gather the basis for recording the name of defendant in the column of possession in jamabandi for the year 1984-85. No such contemporary order of any revenue authority, authorizing recording the possession of defendant, over the suit land, in capacity of malguzar is available on record. Ex.D-5, jamabandi for the year 1999-2000, showing defendant as tenant under plaintiff in respect of two different khasra numbers (not suit land), will not advance case of defendant that he was a proprietor of village Dinni and thus entitled to retain possession over Khasra No. 495. Therefore, no benefit can be drawn by the defendant, merely on the strength of his name being reflected as "Kabiz" over the suit land in the jamabandi for the year 1984-85. Mere recording of his name as "Kabiz" will not prove that defendant is either a malguzar of the village Dinni or entitled to retain his such possession. (iv) Oral evidence: (a) While appearing as DW-1, defendant has himself admitted in cross-examination that Dinni and Larath are two separate villages; his owned land (private land) is in village Larath, which adjoins village Dinni. He also admitted that he resides in village Larath and not in village Dinni, where suit land is situated. He also admitted ownership of the plaintiff over the suit land. He also admitted that his name was entered in jamabandi as "Kabiz" subsequent to settlement operations. Reading of the statements, as a whole, makes it evident that defendant did not have any private land in village Dinni. He thus could not claim any ownership/proprietorship over "shamlat hasab rasad malguzari" of village Dinni. He also admitted that his name was entered in jamabandi as "Kabiz" subsequent to settlement operations. Reading of the statements, as a whole, makes it evident that defendant did not have any private land in village Dinni. He thus could not claim any ownership/proprietorship over "shamlat hasab rasad malguzari" of village Dinni. He though claimed to be in cultivation over the suit land from the time of his forefathers, yet, in his statement, he pleads ignorance, as to how and who gave the said land to his father. Most importantly, he admits that his name was incorporated in the revenue record as "Kabiz" only after the settlement. He is unaware, as to who was recorded either owner or in possession of suit land before his name got recorded in the revenue record as "Kabiz." (b) DW-2, Sh. Dev Raj, stated that defendant was owner in possession of Khasra No. 494 and 496, in village Dinni. This fact has not even been stated by the defendant himself, while appearing as DW-1. This appears to be an over-board statement by DW-2, without any document or other supportive evidence. DW-2 has further stated that khasra No. 495, has been cultivated by defendant through-out. Whereas, as discussed earlier, DW-1, i.e. defendant had himself stated that he is not aware, as who was either the owner or in possession over the suit land prior to the settlement. (c) Plaintiff while appearing in the witness box as PW-1, proved his case by asserting his ownership over the suit land in form of revenue documents Ex.P1, Ex.P2, Ex.P3 and Ex.P4. Suit for possession has been filed on the strength of title. The revenue record showing plaintiff to be owner of suit land alongwith other co-sharers, has not been disputed by the defendant. Plaintiff having proved his title over the suit land, is thus, entitled to the possession thereof. Defendant had admitted his possession over the suit land, but has failed to prove the justifiability for the same. (d) Substantial question of law raised above is actually a question of fact, which has been properly appreciated by both the learned Courts below. It would be apt to refer to the judgment passed in titled Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 wherein it was held as under:- "16. (d) Substantial question of law raised above is actually a question of fact, which has been properly appreciated by both the learned Courts below. It would be apt to refer to the judgment passed in titled Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 wherein it was held as under:- "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." In another judgment passed in Civil Appeal No. 6567 of 2014, titled Gurnam Singh (D) by LRs. vs. Lehna Singh (D) by LRs. it was held as under:- "15.1. As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial question of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial question of law at all. The substantial questions of law framed by the High Court are as under: "(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial court? The substantial questions of law framed by the High Court are as under: "(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial court? (ii) Whether the judgment passed by the learned lower Appellate Court in perverse and outcome of misreading of evidence?" The aforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court be sustained and the same deserves to be quashed and set aside. At this stage, decision of this Court in the case of Madamanchi Ramappa vs. Muthaluru Bojappa, (1963) AIR SC 1633, is required to be referred to. In the aforesaid decision, this Court has observed and held as under: "Whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by S.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid." In judgment passed in titled T. Ramalingeswara Rao through LRs. vs. N. Madhava Rao and Others, (2019) 4 SCC 608 it was held as under:- "12. When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature and binding on the High Court. vs. N. Madhava Rao and Others, (2019) 4 SCC 608 it was held as under:- "12. When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature and binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case for interference or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction. 13. Such was not the case made out in the High Court. It is for this reason, we are of the view that the High Court should not have interfered in the findings of the two Courts below and instead, the findings should have been upheld by the High Court." Substantial question of law is answered accordingly. (v) Question No. 2 (whether suit was barred by limitation): (a) Limitation is a mixed question of fact and law. It is seen from the record that no plea regarding limitation was taken by the defendant before learned Courts below. Defendant has not taken any plea of limitation in his written statement. No issue on limitation was framed. Therefore, no opportunity was available to the contesting parties on this point of limitation. The point was not even taken in first appeal. It is apt to refer to the judgment of Hon'ble Apex Court in titled Banarsi Das vs. Kanshi Ram and Others, (1963) AIR SC 1165 wherein it was held as under:- "15. The High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi Rain, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to allow it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of s.3 of the limitation Act, it should at least have given an opportunity to the parties which supported the decree of the trial court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat the pleading of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants, they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgment in the course of the discussion, the High Court had said that it was not suggested before it by anyone that the claim was not barred by reason of acknowledgments. Apparently, no such argument was advance before it on behalf of the plaintiff and the defendant Banarsi Das because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit." In another judgment passed in titled as Deepak Tandon and Another vs. Rajesh Kumar Gupta, 2019 AIR SC 924 wherein it was held as under:- "17. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondents writ appeal and dismissing the appellants' application under Section 21(1)(a) of the Act, 1972 as not maintainable. This we say for the following reasons. 18. In our considered opinion, the High Court committed jurisdictional error in setting aside the concurrent findings of the two Courts below and thereby erred in allowing the respondents writ appeal and dismissing the appellants' application under Section 21(1)(a) of the Act, 1972 as not maintainable. This we say for the following reasons. 18. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of the appellants' application under Section 21(1)(a) of the Act, 1972 in his written statement before the Prescribed Authority. 19. Second, since the respondent failed to raise the plea of maintainability, the Prescribed Authority rightly did not decide this question either way. 20. Third, the respondent again did not raise the plea of maintainability before the First Appellate Court in his appeal and, therefore, the First Appellate Court was also right in not deciding this question either way. 21. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. 22. Fifth, it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe." The question therefore, does not arise for adjudication in the instant second appeal. Answered accordingly. (vi) Question No. 3 (dismissing of application for amending the written statement, by the First Appellate Court: (a) It is argued by learned counsel for the defendant that application moved under order 6 Rule 17 for amendment of the written statement had wrongly been rejected by the learned First Appellate Court on 30.07.2007. By means of this application, the defendant intended to take the plea of adverse possession against the plaintiff. (b) The application seeking amendment of written statement was rightly rejected by the learned First Appellate Court. By means of this application, the defendant intended to take the plea of adverse possession against the plaintiff. (b) The application seeking amendment of written statement was rightly rejected by the learned First Appellate Court. Firstly, the plea of being in adverse possession was destructive to the plea of 'being co-owner with plaintiff', already taken by the defendant in his written statement, hence, could not be allowed to be taken by way of amendment. Secondly, the plea was being sought to be taken at a much belated stage. Learned trial Court had already decreed the suit for possession against the defendant. In the first appeal filed by defendant, no such plea was taken. The first appeal had already been heard and reserved for judgment, when application under Order 6 Rule 17 was moved. No justification for moving the application at such a belated stage was given. The application, which was an obvious attempt to fill up the lacuna in the case, was rightly rejected. No other point has been raised. 5. In view of the above discussions, no error can be found in the impugned judgments and decrees passed by the learned Courts below, against the defendant. Accordingly, the appeal is dismissed. Pending applications, if any, also stand disposed of accordingly.