ORDER/JUDGMENT – Ms. Seema Sharma, learned counsel for the appellants in S. A. No. 2220/2019. Shri Sameer Athawale, learned counsel for the appellant in S. A. No. 2002/2019. Shri Mohan Sharma, learned counsel for the respondent in S. A. No. 2220/2019. Shri Manoj Munshi, learned counsel for the respondent in S. A. No. 2002/2019. Heard on the question of admission. Both the Second Appeals have been filed against the judgment and decree dated 14-2-2019 passed by Second Civil Judge, Class-I, Dhar District Dhar whereby the suit has been decreed in favour of the plaintiffs and affirmed by judgment dated 27-6-2019 passed by 3rd ADJ, Dhar whereby the RCA No. 16/13 filed by defendant No. 3 and RCA No. 17/19 filed by defendant Nos. 1 and 2 have been dismissed. 2. Now, defendant Nos. 1 and 2 have filed the Second Appeal No. 2220/2019 and defendant No. 3 filed the Second Appeal No. 2002/2019 before this Court. Since, both the appeals are arising out of the common judgment and decree, hence, they are being decided co-jointly. Facts of the case in short are as under : 3. Respondent Nos. 1 and 2 (hereinafter referred to as the plaintiffs) have filed the suit for declaration and permanent injunction against defendant Nos. 1 and 2. According to the plaintiffs, they are resident of Bohra Bakhal, Dhar. They purchase shamble property No. 16 (old No. 18), ward No. 28, Dutt Gali, Dhar area 4338 sq.ft. (403.90 Sqmtr.) vide registered sale deed dated 27-1-2009. Since, there was discrepancy in the width and length of the property, therefore, amended sale deed dated 15-7-2014 was also executed. The plaintiffs have obtained the NOC from the Nazul Office which was issued vide certificate dated 23-6-2015, thereafter, defendant No. 1 has granted building permission on 23-7-2015. After obtaining the building permission and NOC, the plaintiffs have started construction within the boundaries of the property. Defendant No. 1 issued the notice dated 26-6-2016 alleging that the construction is being raised in violation of sanctioned permission and provisions of Municipal Council Act. The plaintiffs filed civil suit seeking the relief of permanent injunction and declaration that the notice dated 26-6-2016 be declared void. The plaintiffs filed an application under Order 39, Rule 1 and 2 of the Civil Procedure Code and vide order dated 2-9-2016, the application has been allowed and the parties were directed to maintain the status quo. The plaintiffs filed civil suit seeking the relief of permanent injunction and declaration that the notice dated 26-6-2016 be declared void. The plaintiffs filed an application under Order 39, Rule 1 and 2 of the Civil Procedure Code and vide order dated 2-9-2016, the application has been allowed and the parties were directed to maintain the status quo. Later on, vide notice dated 26-10-2016 (Ex.D/3), defendant Nos. 1 and 2 have canceled the building permission and directed for demolition of the construction within 24 hours. By way of amendment, the plaintiffs have also sought the relief that the order dated 26-10-2016 is void and not binding on them. 4. Defendant No. 3 filed an application under Order 1, Rule 10 of the Civil Procedure Code on 22-9-2016 seeking her impleadment as defendant No. 3 being the complainant. By order dated 6-10-2016, the Court has allowed the application by directing the plaintiffs to implead her as defendant No. 3 in the cause title of the plaint. On 10-11-2016, defendant No. 1 and 2 have filed the written statement and on 2-12-2016 defendant No. 3 has also filed the written statement along with the copy of order dated 26-10-2016. Thereafter, the plaintiffs have filed an application under Order 6, Rule 17 of the Civil Procedure Code seeking amendment in the plaint as well as in relief clause and vide order dated 6-12-2016, the Court has allowed the amendment application. 5. On the basis of pleadings, the learned trial Court framed the following issues for adjudication and fixed the case for plaintiffs evidence. 6. The issues framed by the learned trial Court reproduced below : 7. In support of the plaint, plaintiffs examined Abid Hussain as PW-1 and got exhibited 25 documentary evidence as Ex.P/1 to Ex.P/25 8. Defendant Nos. 1 and 2 have neither examined any witnesses nor produced any documentary evidence but defendant No. 3 examined herself as DW-1 and got exhibited as many as 51 documentary evidence as Ex.D/1 to Ex.D/51. 9. After appreciating the evidence came on record, the learned Civil Judge has decreed the suit in favour of the plaintiffs by recording the findings in favour of the plaintiffs on all issues. 10. Being aggrieved by the aforesaid judgment and decree dated 14-2-2019, defendant Nos. 9. After appreciating the evidence came on record, the learned Civil Judge has decreed the suit in favour of the plaintiffs by recording the findings in favour of the plaintiffs on all issues. 10. Being aggrieved by the aforesaid judgment and decree dated 14-2-2019, defendant Nos. 1, 2 and defendant No. 3 have filed F. A. No. 16-A/2019 and F. A. No. A-17/2016 that too have been dismissed vide order dated 27-6-2019, hence, the present two Second Appeals before this Court. 11. I have heard Ms. Seema Sharma learned counsel on behalf of appellant/ defendant Nos. 1 and 2 in S. A. No. 2220/2019 and Shri Sameer Athawale, learned counsel on behalf of defendant No. 3 in S. A. No. 2002/2019 and also Shri Mohan Sharma, learned counsel on behalf of plaintiffs in S. A. No. 2220/2019 and Shri Manoj Munshi, learned counsel on behalf of respondent/ plaintiff in S. A. No. 2002/2019. 12. Learned counsel for the defendants submit that both the Court below have erred in decreeing the suit in favour of the plaintiffs whereas they have failed to prove their case. The findings recorded by both the Courts below are perverse and not based on the evidence. The burden has wrongly been shifted on the defendants to prove that the construction raised by the plaintiffs is not in accordance with the sanctioned map. The learned counsel for the appellants/ defendants have vehemently argued that the permission of construction was granted to the property of the plaintiffs situated at Dutt Lane, but they have raised the construction over the property situated at Dhareshwar Road. They have also raised the construction excess to the land mutated in the names in the record of municipal council. The learned first Appellate Court has wrongly dismissed the application under Order 41, Rule 27 of the Civil Procedure Code. The learned Courts below have wrongly declared the notice dated 26-10-2016 as void on the ground that no opportunity of hearing was given to the plaintiffs whereas the notice itself contains the fact that notice dated 24-6-2016 was issued to the plaintiffs alleging the violation in construction of the house. Therefore, vide show cause notice dated 25-7-2016 (Ex.P/26) was issued to the plaintiffs. In the said notice it is specifically mention the fact that without following the provisions of sections 187(3-A) and 223 of the Municipalities Act, 1961, the construction has been raised. Therefore, vide show cause notice dated 25-7-2016 (Ex.P/26) was issued to the plaintiffs. In the said notice it is specifically mention the fact that without following the provisions of sections 187(3-A) and 223 of the Municipalities Act, 1961, the construction has been raised. The learned trial Court has wrongly ignored the photographs filed by the defendants which clearly establishes that the plaintiffs have made extra construction over the Government road. Hence, the appeals are liable to be admitted on the substantial questions of law as proposed by the appellants. 13. Substantial questions of law as proposed by the appellants in both the appeals are reproduced below : – Substantial questions of law proposed in S. A. No. 2220/2019; (i) Whether, both the Courts below were justified in confirming the judgment and decree of trial Court which had illegally decreed the suit ignoring the evidence available on record and against the settled provisions of law? (ii) Whether, the approach of Courts below in misreading Exhibit P/24 the spot inspection report in which in para 1 it is clearly stated that plaintiffs/respondent No. 1 and 2 has raised construction on Dhareshwar Marg while Courts below have misread it to hold that it mention construction in Datt Gali, is illegal and perverse? (iii) Whether, the Courts below were justified in declaring notice dated 26-10-2016 (Exhibit-D/3) void on the ground that principle of nature justice is not followed before issuing notice dated 26-10-2016, when in the notice dated 26-10-2016 it is clearly mentioned that opportunity of hearing has already been given to the plaintiffs/respondent No. 1 and 2 by issuing notice dated 21-4-2016, 24-6-2016, 25-7-2016. (iv) Whether, the Courts below were justified in declaring notice dated 26-10-2016 (Exhibit-D/3) void without considering the fact that, the construction raised by the plaintiffs/respondent No. 1 and 2 contrary to permission, hence in light of Clause No. 16 of permission dated 23-7-2015, notice dated 26-10-2016 was rightly issued by the appellants. (v) Whether, the Courts below erred in law in not considering the settled principle of law that plaintiff/respondent No. 1 and 2 has to prove his own case while plaintiff/respondent No. 1 and 2 has not examined any independent witness and has relied on examined any independent witness and has relied on Exhibit-P/24 demarcation report without validly proving it by examining Revenue Inspector? Substantial questions of law proposed in S. A. No. 2002/2019; (i) Whether the lower Appellate Court below erred in law in confirming the judgment and decree of trial Court which had illegally decreed the suit ignoring the evidence available on record and against the settled provisions of law? (ii) Whether, the approach of Court below in misreading Ex. P/24 the spot inspection report in which in para 1 it is clearly stated that plaintiff has raised construction on Dhareshwar Marg while Courts below have misread it to hold that it mentions construction in Datt Gali, is illegal and perverse? (iii) Whether, the Courts below erred in law in relying on Ex. P/24 the report given by revenue inspector in comparison to Ex. D/39 the report given by competent government authority, without it being validly proved by examining said revenue inspector and giving opportunity of cross-examination to appellant defendant? (v) Whether, the Courts below erred in law in not considering the settled principle of law that plaintiff has to prove his own case while plaintiff has not examined any independent witness and has relied on Ex. P/24 demarcation report without validly proving it by examining revenue inspector?” 14. Shri Manoj Munshi and Shri Mohan Sharma, learned counsel appearing on behalf of the plaintiffs have argued that the plaintiffs purchased the suit property situated at Dhareshwar Road, Dhar and Dutt lane being a corner plots and after due verification title of vendors and their names have been mutated in the revenue record. They obtained NOC from the Nazul Office and thereafter, building permission was granted to them. Defendant No. 3 is an Ex corporator and has nothing to do with the suit property, but despite that, she made a false complaint before the Collector as well as the Municipal Council and got the building permission cancelled. She is not even the resident of that area where the suit property is situated and due to some political rivalry, she has made the complaint. Defendant Nos. 1 and 2, without applying their mind, and under the pressure of defendant No. 3, have issued the notice dated 26-7-2016 and thereafter, cancelled the building permission. Since, defendant Nos. 1 and 2 have alleged the violation of building permission and the construction contrary to the provisions of Municipalities Act, 1961 then the burden was rightly shifted on them to prove the allegations. Since defendant Nos. Since, defendant Nos. 1 and 2 have alleged the violation of building permission and the construction contrary to the provisions of Municipalities Act, 1961 then the burden was rightly shifted on them to prove the allegations. Since defendant Nos. 1 and 2 did not examine any witness in support of the impugned notice, therefore, the learned Court has rightly decreed the suit in favour of the plaintiffs. There is no substantial question of law involved in these second appeals, hence, both the appeals are liable to be dismissed with heavy cost. 15. I have heard the learned counsel for the parties and perused the record. 16. It is settled law that the scope of interference by the High Court under section 100 of the Civil Procedure Code in Second Appeal is very limited. Both the Courts below have concurrently recorded the findings in favour of the plaintiffs and decreed the suit in their favour. Hon’ble the Apex Court in the catena of judgments has decided the scope of interference by the High Court in Second Appeal with the concurrent findings recorded by both the Courts below. 17. Even otherwise, the Apex Court in the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar, (1999) 3 SCC 722 , has held as under : 5. It is not within the domain of the High Court to investigate the grounds on which the 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 has 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. 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 lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 6. If the question of law termed as a 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 the facts of the case would not be termed to be a substantial question of law. 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 a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries 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 a 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 of procedure requiring interference in second appeal. This Court in Reserve Bank of India vs. Ramkrishna Govind Morey, AIR 1976 SC 830 held that whether the trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference. 18. In case of Laxmidevamma vs. Ranganath, (2015) 4 SCC 264 , again the Apex Court has 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. 18. In case of Laxmidevamma vs. Ranganath, (2015) 4 SCC 264 , again the Apex Court has 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 reappreciation 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, Civil Procedure Code, 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. 19. Recently, the Apex Court in case of Adiveppa and others vs. Bhimappa and others, (2017) 9 SCC 586 has held as under : “17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court. 18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court.” 20. In view of the aforesaid law laid down by Hon’ble the Apex Court, the facts, the evidence came on record and the findings recorded by both the Courts below, the appeals are being examined as under. 21. In view of the aforesaid law laid down by Hon’ble the Apex Court, the facts, the evidence came on record and the findings recorded by both the Courts below, the appeals are being examined as under. 21. It is not in dispute that plaintiffs are the registered owner of the property No. 16 (Old No. 18) Ward No. 28, area 4338 Sqft. situated at Dutt lane, Dhareshwar Road, District Dhar. They purchased the property vide registered sale deed dated 27-1-2009. The boundaries of the suit property is mentioned in page No. 3 of the sale deed and according to which on East, West and North side of the plot there are common lane and only on the south side of the property there is house of one Shivle is mentioned. Area of the plot is 85 x 44 x 49 total 3950 sqfts. Since there was discrepancy in the aforesaid measurement, the plaintiffs got executed supplementary sale deed dated 15-7-2014 vide Ex.P/3 and area of the plot became 4338 sqfts. The names of the plaintiffs have been mutated vide Ex.P/4. Building permission was granted for construction on property No. 16, Dutt Lane, Dhar vide Ex.P/5. Nazul Officer Granted the NOC for construction over the area 4324 sqfts. vide certificate No. 870. In this NOC, the address is also mentioned as Dutt Gali, Dhar. The plaintiffs got the permission to raise G+1 building comprising 12 shops. The photographs of part of the construction raised by the plaintiffs up to the second floor have been exhibited as Ex.P/10 to Ex.P/20. 22. Initially, defendant No. 3 made a complaint to the Collector, Dhar alleging that the plaintiffs have included the Government land and got executed the registered sale deed in their favour and because of which their right of way is being affected. The Collector has obtained the reports from CMO and Tehsildar and found that there is no possession of Government land by plaintiffs and also observed that in the matter of registration of the property, the revenue Court is not having any jurisdiction and closed the matter vide Ex.P/24. The CMO issued the notice dated 26-5-2017 alleging that plaintiffs are raising construction contrary to the sanctioned map. The CMO issued the notice dated 26-5-2017 alleging that plaintiffs are raising construction contrary to the sanctioned map. They made excess construction of 1.8 meters in North and 0.4 meters in West side which is illegal and in violation of sections 187(8) and 223 of the Municipalities Act and directed to demolish the construction within 24 hours and this notice gave cause of action to file the civil suit. 23. Vide order dated 2-9-2016, learned trial Court, granted injunction in favour of the plaintiffs by restraining the defendant to demolish the construction and maintain the status quo. Despite the status quo, defendant Nos. 1 and 2 have cancelled the building permission vide notice dated 26-10-2016 (Ex.D/3). 24. The plaintiffs examined PW-1, who have stated that there was no violation in raising construction on the property and they were raising construction on their own property situated at Dutt Gali, Dhar. Since defendant No. 1 and 2 have alleged the violation of building permission, therefore, the burden is on them to establish that how the plaintiffs have raised illegal construction in violation of the sanctioned map. Before issuance of show cause notice and cancellation order, there was no spot inspection done by the engineers of defendant Nos. 1 and 2 and there was no joint inspection. Only obscure allegations have been made in the show cause notice and no one has entered into the witness box to prove those allegations made against the plaintiffs. Since the defendants have failed to prove that plaintiffs have raised construction in violation of the sanctioned map, therefore, the learned trial Court has rightly declared both the notices as void. Even otherwise, before cancellation, no show cause notice was given to the plaintiffs as to why the building permission be not cancelled. Such a show cause notice ought to have been supported by the report of a technical expert. Therefore, no interference is called for as there is no illegality or perversity in the impugned judgment and decree passed in favour of the plaintiffs. 25. The first Appellate Court has rightly dismissed the application filed under Order 41, Rule 27 of the Civil Procedure Code. The additional evidence which sought to have been produced where in the knowledge of the defendants No. 1 and 2 during pendency of the plaint, but they did not care to produce those documents. The defendant Nos. 25. The first Appellate Court has rightly dismissed the application filed under Order 41, Rule 27 of the Civil Procedure Code. The additional evidence which sought to have been produced where in the knowledge of the defendants No. 1 and 2 during pendency of the plaint, but they did not care to produce those documents. The defendant Nos. 1 and 2 were also the party and these documents were available in their office and despite that they did not file any application for summoning those documents, therefore, the first Appellate Court has rightly dismissed the application. Hence, no interference in this regard is also called for. 26. So far as the locus of defendant No. 3 is concerned, she has admitted in her cross-examination that she was ex-corporator of the Municipal Council. Initially, she alleged that the plaintiffs have got registered the sale deed by including the land of Government road which has not been found proved by the Collector, thereafter, she made allegations on the plaintiffs that they are raising construction near Dhareshwar Road not at Dutt Gali where by property is situated. It is clear from the boundaries that the suit property is having the corner location and on both sides there is Dutt Gali and another side there is Dhareshwar Road. Defendant No. 3 has got exhibited letter dated 19-9-2016 written by Dy. Registrar Stamp, Dhar (Ex.D/40) to establish that the property is situated at Dhareshwar Road, who conducted the inspection and gave its report that the property is situated at Dhareshwar main Road and liable to be valued accordingly for the purpose of stamp. There is no finding that the said property is not in Dutt Gali. The aforesaid letter has been issued for the purpose of proper stamp duty. It is within the jurisdiction of Registrar Stamp to assess the stamp duty on the location of the land. Dutt Gali is side lane and the Dhareshwar is main road, therefore, in order to save the stamp duty, the plaintiffs might have shown the property is near the sub-lane Dutt Gali, but while mutation and granting the building permission, the municipal authorities have treated that suit property is situated at Dutt Gali and granted the necessary permission. Defendants No. 1 and 2 have not disputed that the plaintiffs are raising the construction at some other place. Defendants No. 1 and 2 have not disputed that the plaintiffs are raising the construction at some other place. As held by both the Courts below, defendant No. 3 has no locus to raise objection in respect of construction as the plaintiffs are not restraining the way of right of defendant No. 3. It appears that due to some political rivalry, she made complaint by misusing her position in the Municipal Council and dragged the matter up to the High Court. The construction of the plaintiffs have delayed for the period of more than three years because of the objection raised by defendant No. 3. They are free to claim damages from defendant No. 3 because she has raised all baseless and frivolous objections in respect of construction of the plaintiffs and because of her conduct, precious time of all Courts has been wasted. It is also very surprising that defendant No. 1 and 2 have issued the notice and cancelled the building permission, but did not enter into the witness box to prove their allegations, therefore, there is no doubt that they have acted at the behest or under the pressure of defendant No. 3 and they have also wasted the precious Courts time by dragging the plaintiffs into litigation. The plaintiffs are liable to claim the damages against them also. The plaintiffs have obtained the permission to raise a commercial complex, but because of litigation, their project has been delayed more than 3 years for which they are liable to compensate. Hence, I do not find any substantial question of law in the second appeals and the same are dismissed accordingly. 27. With the aforesaid, the appeals stands dismissed with cost of Rs. 5,000/- on defendant Nos. 1, 2 and 3 each payable to the plaintiffs subject to their right to claim damages independently.