JUDGMENT P.K. Lohra, J. - Appellant-Plaintiff, by the instant second appeal, has challenged a concurring judgment dated 10th of April, 2019 of District Judge, Pali (for short, 'learned lower appellate Court'). The learned lower appellate Court affirmed the impugned judgment and decree dated 28th of September, 2012 passed by Civil Judge (Sr. Division), Pali (for short, 'learned trial Court'). 2. The factual matrix, giving rise to this appeal, is that appellant filed a civil suit against respondents for perpetual injunction, inter-alia, on the ground that he is carrying on business of sweets and namkin in the name & style of 'Gokul Sweets' at Shop No.11, Old Bus-stand, Pali, which was taken on rent from Panchmukhi Mahadev Temple. It is also averred by the appellant that he is regularly paying rent to the landlord and maintaining his family out of the business earnings from the shop. A fact is also pleaded that the respondents are his brothers who are carrying on their business in adjacent shop No.9, wherein he is having no share. The appellant very specifically pleaded in the plaint that the respondents always harboured animosity against him and they are out and out to take possession of the disputed shop wherein he is a tenant. Appellant also made endeavour to aver in the plaint that his mother was living with him till her death and out of respect and affection he had mentioned her name as tenant in the rented shop but the fact remains that he alone is carrying on business in the rented shop. 3. Castigating the respondents, appellant also pleaded that they are trying to forcibly dispossess him from the shop in question. For substantiating this assertion, the appellant also averred in the plaint that earlier with the help of a retired police employee an attempt was made by the respondents to dispossess him from the shop in question and therefore in case he is dispossessed from the shop, he would suffer irreparable loss. The fact about false complaint lodged by the respondents against appellant and his family members is also pleaded in the plaint. With all these averments, the appellant craved for the relief of perpetual injunction that respondents may not evict him without following due process of law and further not to cause any damage to his belongings in the shop. 4. The fact about false complaint lodged by the respondents against appellant and his family members is also pleaded in the plaint. With all these averments, the appellant craved for the relief of perpetual injunction that respondents may not evict him without following due process of law and further not to cause any damage to his belongings in the shop. 4. The respondents contested the suit and raised an objection about valuation of the suit with a prayer to reject the same on the ground that the suit is under-valued. In the written statement, it is also averred by the respondents that the shop in question is owned by Panchmukhi Mahadev Temple and initially the same was rented out to one Ghishulal Ghanchi and after his death, his son Ramlal and grandson Omprakash were carrying on business in the shop. It is further averred that when Omprakash was in occupation of the shop, he started business in partnership with their brother Nandlal and during subsistence of partnership Omprakash expired in 2004. A plea was also raised in the written statement that after death of Omprakash, Nandlal and other respondents continued their joint business and finally Nandlal relinquished his share in the shop on 22nd of December, 2004. 5. The respondents also pleaded that appellant and respondents in all were nine brothers and out of them eldest brother Babulal died, thereupon their mother Ms. Pepi Bai during her lifetime distributed entire property amongst her sons by executing a Will and as per her last wish shop in question came in share of the respondents and to other brothers requisites shares were given by Ms. Pepi Bai during her lifetime. 6. It is also pleaded that appellant and their other brother Nandlal were given their respective shares in the property on 22nd of December, 2004 and taking their share they started living separately. With these facts, the respondents pleaded that they have acquired a right to retain possession of disputed shop in which they are carrying on business. Insinuating appellant and his wife for their overt and violent act, it is also pleaded by the respondents that on 28th of June, 2007, at about 12 hours, the appellant accompanied by his wife well-armed attacked Smt. Sita Devi W/o Parasmal and snatched her necklace besides taking away gas cylinders, CD Player etc and other grocery items. Insinuating appellant and his wife for their overt and violent act, it is also pleaded by the respondents that on 28th of June, 2007, at about 12 hours, the appellant accompanied by his wife well-armed attacked Smt. Sita Devi W/o Parasmal and snatched her necklace besides taking away gas cylinders, CD Player etc and other grocery items. It is further averred that on the same day during night hours at 2 AM, appellant clandestinely broke lock and took possession of the disputed shop. Further elaborating in this behalf, the respondents also pleaded that on their behalf a criminal complaint was filed before Chief Judicial Magistrate, Pali under Section 156(3) Cr.P.C. and subsequently FIR was registered and after investigation appellant, his wife and two sons Mukesh and Vikas were chargesheeted for offence punishable under Sections 452, 380/34 IPC which is still pending as criminal case No.267/2007. Precisely, the respondents have pleaded that the shop in question was started by them in the name & style of Gokul Sweets and they were carrying on their business in the shop. 7. Adverting to the possession of appellant, respondents have made a positive assertion that appellant is in unauthorized occupation of the shop by forcibly dispossessing them and therefore they are entitled for restoration of their possession. It is also averred that the whole attempt of the appellant is to camouflage his criminal activities and as such no cause of action has accrued to him. With these averments, respondents prayed for rejection of the suit. 8. Besides filing written statement, on behalf of respondents, a counter-claim is also laid wherein the facts averred in the written statement are reiterated and relief is prayed that by a mandatory injunction they may be put to possession in the disputed shop alongwith furniture and belongings of the shop. In the counter-claim, Rs.6,400 is also claimed, which according to the respondents were forcibly taken by appellant from the shop. Yet another prayer made is that appellant may be restrained by a perpetual injunction not to cause any obstruction or hindrance in their use and occupation of the disputed shop. 9. The counter-claim is replied by appellant wherein yet again he has persisted with the pleadings made in the plaint. In the reply, it is specifically pleaded by the appellant that he purchased the furniture from Smt. Bhanwari Bai after paying a sum of Rs.1,05,000. 9. The counter-claim is replied by appellant wherein yet again he has persisted with the pleadings made in the plaint. In the reply, it is specifically pleaded by the appellant that he purchased the furniture from Smt. Bhanwari Bai after paying a sum of Rs.1,05,000. It is also submitted that before death of Ms. Pepi Bai she remained seriously ill for almost three years and taking advantage of her serious illness, the respondents prepared a forged Will whereas in fact Ms. Pepi Bai never executed any Will. While referring to the partnership deed of Nandlal, appellant pleaded that same is spurious because at that point of time Nandlal was minor. In substance, appellant has refuted all the averments made in the counter-claim and castigated respondents for hatching conspiracy against him so as to oust him from the shop in question. With all these averments, the appellant prayed for rejection of counter-claim. 10. The learned trial Court on the basis of pleadings of rival parties settled three issues for determination, which are reproduced in vernacular as under: 11. For substantiating his case, appellant himself appeared in the witness box and also examined PW2 Rukma and produced 4 documents which were exhibited. In counter to the evidence of appellant, respondent No.1 & 2 appeared in the witness box besides examining two other witnesses, namely, DW3 Lumba Ram and DW4 Prem Kishore. In documentary evidence, death certificate of Ms. Pepi Bai and 12 other documents were also tendered for authenticating their defence. 12. The learned trial Court thereafter proceeded to decide issue No.1 & 2 simultaneously. The learned trial Court, after considering the evidence and other materials available on record, found so many loopholes and pitfalls in the evidence of appellant and accordingly relying on the same decided Issue No.1 against him. While adverting to Issue No.2, learned trial Court found that appellant forcibly taken possession of the shop which the respondent have proved by their cogent evidence and accordingly decided the said issue in favour of respondents. Subsequently, the learned trial Court also considered Issue No.3, which was settled on the basis of plea of respondents and partially decided the same in favour of respondents. 13. The learned trial Court found that respondents have failed to prove pilferage of Rs.6,400 so also the grocery items, therefore, they are not entitled for damages in this behalf. Subsequently, the learned trial Court also considered Issue No.3, which was settled on the basis of plea of respondents and partially decided the same in favour of respondents. 13. The learned trial Court found that respondents have failed to prove pilferage of Rs.6,400 so also the grocery items, therefore, they are not entitled for damages in this behalf. However, the learned trial Court found that appellant has forcibly taken possession of fridge and furniture of the respondents and therefore they are entitled for the same. Taking into account the said finding on all the three issues, the learned trial Court dismissed the suit of appellant and allowed counter-claim of respondents by issuing mandatory injunction against appellant to handover possession of the shop in question to respondents within two months. Besides that, perpetual injunction is also granted against appellant not to cause any hindrance or obstruction in use and occupation of the shop by the respondents. 14. Feeling aggrieved by the judgment and decree of learned trial Court, appellant preferred appeal before learned lower appellate Court and the learned lower appellate Court, upon de novo examination of evidence and other materials available on record, concurred in toto with the findings and conclusions of the learned trial Court. The concurrence of the learned lower appellate Court with the findings of learned trial Court entailed rejection of the first appeal. 15. Assailing concurring judgments of learned courts below, it is submitted by Mr. H.R. Soni, learned counsel for the appellant, that both the courts below have seriously erred in relying on testamentary instrument of Ms. Pepi Bai inasmuch as tenancy rights of an individual are not bequeathable. It is also argued by Mr. Soni that respondents have asserted their right of ownership regarding the shop in question whereas indisputably tenancy rights and ownership rights cannot co-exist. 16. Taking a dig at the inconsistent stand of respondents, learned counsel contends that both the courts below have failed to examine this aspect of the matter. Alternatively, Mr. Soni has contended that from the evidence available on record, it has come to the fore that rival parties are harping on their alleged tenancy rights over the shop in question and therefore by no stretch of imagination respondents can claim better right or title vis-a-vis appellant. Alternatively, Mr. Soni has contended that from the evidence available on record, it has come to the fore that rival parties are harping on their alleged tenancy rights over the shop in question and therefore by no stretch of imagination respondents can claim better right or title vis-a-vis appellant. Learned counsel further contends that a suit simplicitor for injunction seeking declaration is not maintainable but this aspect is also completely eschewed by both the courts below. 17. It is also submitted by learned counsel that both the courts below have fallen in error while deciding issue No.2 against appellant and in favour of respondents inasmuch as the counterclaim was not in the nature of a suit under Section 6 of the Specific Relief Act, 1963. Learned counsel has vehemently argued that the instant appeal is though directed against concurrent finding of fact recorded by both the courts below but same involves substantial questions of law as proposed in the memo of appeal. It is also contended by learned counsel that the learned lower Court has not decided the two applications of appellant under Order 41 Rule 27 CPC for taking additional evidence on record and furthermore has completely skipped application under Order 11 Rule 14 CPC, which constitutes a substantial question of law. 18. Learned counsel would urge that the learned lower appellate Court has not at all considered written submissions made on behalf of the appellant. Learned counsel has also referred to the application under Order 41 Rule 27 CPC submitted before this Court for taking additional evidence on record. While referring to the alleged partnership, learned counsel submits that counter-claim by an unregistered firm was not at all tenable. 19. Mr. Soni, in support of his arguments has placed reliance on following judgments: (1) Mishrimal Vs. Sukh Lal, (2006) 4 RajLW 2890 (2) Ramratan Vs. Bulakidas, (2001) 1 RajLW 194 20. Per contra, learned Senior Counsel Mr. R.K. Thanvi submits that first application submitted by appellant on 11th of December, 2013 under Order 41 Rule 27 CPC was accepted by the learned lower appellate Court on 9th of November, 2016. It is urged by learned Senior Counsel that although appellant has captioned second application as an application under Order 41 Rule 27 CPC but from the facts pleaded and the grounds set out therein, the same is not depicting an application for taking additional evidence on record. 21. It is urged by learned Senior Counsel that although appellant has captioned second application as an application under Order 41 Rule 27 CPC but from the facts pleaded and the grounds set out therein, the same is not depicting an application for taking additional evidence on record. 21. It is also urged by learned Senior Counsel that the application is bereft of all the requirements envisaged under Rule 27 of Order 41 CPC, which is pre-requisite for its maintainability. Learned Senior Counsel has also argued that in the second application under Order 41 Rule 27 CPC appellant has prayed for calling Nandlal in the witness box without showing relevance of his testimony for just decision of the case and therefore no prejudice as such is caused to the appellant due to non disposal of the application and in the backdrop of facts and circumstances of the case same cannot constitute a substantial question of law. 22. Learned Sr. Counsel has vehemently argued that concurrent finding of fact recorded by both the courts below is based on sound appreciation of evidence and the appeal being bereft of any question of law much less substantial question of law merits outright rejection. Joining issue with the appellant, learned Sr. Counsel has argued that the so called application captioned as under Order 11 Rule 14 CPC is vague, cryptic and conspicuously silent about requirements of the Rule. He would urge that application is also not support by affidavit and therefore its non disposal by the learned lower appellate Court as such has not caused any prejudice to the appellant. 23. I have bestowed my consideration to the arguments advanced at bar, perused judgments of both the courts below and also scanned the record of the case. 24. The task of the appellant in the instant appeal is difficult inasmuch as he has pitted against concurrent finding of fact recorded by both the courts below. Well it is true that there is no absolute bar in entertaining a second appeal against concurrent finding of fact but then existence of substantial question of law is sine qua non for maintainability of a second appeal. Well it is true that there is no absolute bar in entertaining a second appeal against concurrent finding of fact but then existence of substantial question of law is sine qua non for maintainability of a second appeal. If the issues sought to be raised by the appellant are examined in the backdrop of facts and circumstances of the case and available material, then it would ipso facto reveal that initially the shop in question was rented out to one Ghishulal Ghanchi and later on his grandson Omprakash continued his business in partnership with mother of the respondents. After death of Omprakash in the year 2004, all the respondents jointly carried out their business in the shop. 25. It is also discernible from the evidence available on record that Ms. Pepi Bai, mother of the appellant and respondents, by a testamentary instrument handed-over reins of the business in disputed shop to the respondents. The contention of the learned counsel, that tenancy cannot be bequeathed, appears to be quite alluring but in fact it was not a case of bequeathing tenancy and the testamentary instrument speak volumes about the fact that Ms. Pepi Bai by her Will Ex.A/8A has simply bequeathed the property self acquired by her. True it is that in written statement/counter-claim a reference about Will of the shop is mentioned but no such recitals are there in Will Ex.A/8A. 26. Therefore, this argument of the learned counsel for the appellant is not at all tenable. The appellant himself has admitted in his plaint that the shop in question was rented in the name of his mother and therefore admission of a party is the best proof which cannot be dislodged by tendering other evidence. The factum of carrying out business in the shop in question by the appellant is examined by both the courts below after marshalling the requisite evidence and both the courts have found that in fact the respondents were carrying on business in the shop in question. 27. The factum of taking forcible possession of the shop in question by appellant and stealing certain grocery items and registration of criminal case under Section 452, 352/34 IPC is yet another significant circumstance which is taken note of by both the courts below for non-suiting the appellant. 27. The factum of taking forcible possession of the shop in question by appellant and stealing certain grocery items and registration of criminal case under Section 452, 352/34 IPC is yet another significant circumstance which is taken note of by both the courts below for non-suiting the appellant. True it is that factum of acquittal of appellant in criminal case was brought to the notice of learned lower appellate Court but then entrustment of business to him by his mother is not discernible from the evidence available on record. The argument of the learned counsel for the appellant that from evidence essentially both the parties are staking claim of tenancy in the shop in question, therefore, respondents are having no better right or title vis-a-vis him, appears to be quite alluring but not of any significance because the lis involved in the matter is not about title of the shop in question between rival parties. 28. The euphonious contention of the learned counsel that counter-claim (suit) for declaration alone for injunction simplicitor is not maintainable, is bereft of any merit in the backdrop of lis involved in the matter. As a matter of fact, the counter-claim of respondents is founded on the fact that they are forcibly dispossessed from the shop in question and in that background it is rather difficult to comprehend that their right to claim mandatory injunction can be deterred/defeated in want of prayer for declaration. It would be significant to note here that the aforesaid plea was never raised by the appellant in his reply to counter-claim and therefore proposing a question of law much less substantial question of law on this issue without there being any foundation is not at all sustainable. 29. While adverting to the second application of appellant under Order 41 Rule 27 CPC, suffice it to observe that a bare reading of Rule 27 of Order 41 CPC makes it abundantly clear that parties to an appeal are not entitled to produce additional evidence but for satisfying the requirements envisaged under various clauses of sub-rule (1). The requirement of law is that an appellant/respondent seeking permission to produce additional evidence must plead that the requisite evidence could not be produced by him even after exercise of due diligence at the time decree was passed. The requirement of law is that an appellant/respondent seeking permission to produce additional evidence must plead that the requisite evidence could not be produced by him even after exercise of due diligence at the time decree was passed. The averments made in the second application under Order 41 Rule 27 CPC laid by the appellant are conspicuously silent about the requirements envisaged under various clauses of sub-rule (1) of Rule 27 of Order 41 CPC. 30. Therefore, even if this sort of omission is apparent from the impugned judgment of the learned lower appellate Court, I am afraid, no prejudice has been caused to the appellant. It is further reiterated that 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 omission in the court of appeal. By no stretch of imagination, the said provisions authorize any lacunae or gaps in the evidence to be filled-up. The ratio decidendi in the judgments referred to by the learned counsel for the appellant cannot be disputed but in the backdrop of facts and circumstances of the case and lis involved in the matter, both the judgments cannot render any assistance to the cause of the appellant. The object of the appellant in contesting the matter is per se lackadaisical inasmuch no material facts were pleaded in response to the counter-claim, nor requisite evidence was produced before learned trial Court. Before the learned appellate Court at the behest of appellant though endeavour was made twice for taking additional evidence on record but it was too late in the day and further that attempt per se lacked legal foothold for want of proper factual foundation. 31. As a matter of fact, the first application of the appellant was allowed and the prayer made in second application could have been pressed into service at the time of laying first application. In overall fact scenario, looking to the averments made in second application under Order 41 Rule 27 CPC and its presentation before learned lower appellate Court after inordinate delay is sufficient to repudiate the same and no indulgence can be granted to the appellant for its non disposal. In overall fact scenario, looking to the averments made in second application under Order 41 Rule 27 CPC and its presentation before learned lower appellate Court after inordinate delay is sufficient to repudiate the same and no indulgence can be granted to the appellant for its non disposal. Moreover, application under Order 11 Rule 14 CPC too is vague and cryptic and not in accordance with law, therefore, omission by the learned lower appellate Court to decide the same cannot render any assistance to the cause of the appellant. I am firmly of the view that on these counts no substantial question of law has emerged in the factual backdrop of the instant matter. It is quite perplexing that even before this Court the appellant has laid yet another application under Order 41 Rule 27 CPC for taking certain documents on record, which relate back to years 1991, 1996, 1998, 2000, 2007 to 2012 respectively. A litigant cannot be allowed to improve its case or authenticate the defence with new material at every higher stage of judicial hierarchy with impunity and that too without proper factual foundation. In the application, no cogent and satisfactory reason is furnished by the appellant for belated presentation of these documents, therefore, it is a clear case of an attitude of litigious perseverance by the appellant, which in the peculiar facts and circumstances of the case cannot be countenanced. Therefore, the application is hereby thwarted. 32. Although I have made sincere endeavour to ponder over the proposed substantial questions of law, but I am at loss to say that in the facts and circumstances of the case, the proposed substantial questions of law are wholly untenable on the anvil of lis involved and lack of requisite pleadings by the appellant. I am also constrained to observe that the learned courts below have neither misread/misconstrued the evidence available on record, nor eschewed material evidence while rendering concurrent judgments. Therefore, the said concurrent finding of fact recorded by both the courts below cannot be faulted. 33. In view of foregoing discussion, the instant appeal is bereft of any merit and same is, therefore, dismissed.