JUDGMENT : 1. This second appeal under Section 100 CPC has been filed against the judgment and decree dated 27/10/2016 passed by First Additional District Judge, Sironj, District Vidisha in Civil Appeal No. 1-A/2016, thereby affirming the judgment and decree dated 28/11/2015 passed by the Civil Judge, Class-I, Sironj, District Vidisha in Civil Suit No. 11-A/2015. 2. The necessary facts for disposal of the present appeal in short are that the plaintiff/appellant had filed a suit for declaration and permanent injunction as well as for removal of illegal construction. It is the case of the appellant that she had purchased two plots from Kallu Khan and Majeed Khan by registered sale deed dated 20/6/1996. The wall of the defendants was situated on the western side of one of her plot and after demolishing the said wall, the defendants have erected a window towards the plot of the plaintiff and when the son of the plaintiff objected to it, then the defendants assured that they would remove the same, however, the same was not done and accordingly, the son of the plaintiff served a notice on defendant no.1 on 23/1/2013. In spite of notice, the defendant continued with the construction and has again made a window, ventilator pipes are being used to discharge waste material on the plot of the plaintiff and the defendant has also constructed window and ventilator on the first and second floor facing towards the plot of the plaintiff. 3. Defendant filed written statement and denied the plaint averments. It is stated that there is a way (Gali) between the plots of the plaintiff and the house of the defendant, and the windows and ventilators as well as pipes are facing towards the said way (Gali). 4. The trial court after framing issues and recording the evidence, dismissed the suit by holding that the defendants no.2 and 3 have raised the construction after obtaining due building permission from the competent authority and the house of the defendant and the plot of the plaintiff are not immediately adjoining to each other and there is a way in between the same, as a result of which, it cannot be said that the privacy of the plaintiff is getting adversely affected. 5. 5. The appellant, being aggrieved by the judgment and decree passed by the trial court, filed an appeal, which too suffered dismissal by judgment and decree dated 27/10/2016 passed by First Additional District Judge, Sironj, District Vidisha in Civil Appeal No.l-A/2016. 6. Challenging the judgments and decrees passed by the courts below, the appellant has filed the present appeal on the following proposed substantial questions of law:- "a. Whether the Court Below erred in dismissing the suit and the appeal without inspecting the disputed property whereas the whole dispute is regarding existence of Gali, between the house of the defendant and plot of plaintiff. b. Whether the learned Court Below erred in dismissing the suit on the ground that a gali is in existence between the plot of the plaintiff and defendant's house, but in the sale deed dated 21.07.2013 there is no such Gali was Shown. c. Whether the Court Below erred in dismissing the suit even after the admission of the part of the defendants regarding existence of window on the southern side of the defendants house. d. Whether the Appellate Court erred in dismissing the application filed by the appellant under Or. 26 Rule 9 just on the ground that the same was not filed before the learned trial court, whereas as per Order 26 Rule 9 the Trial Court itself has to call for such commission report looking to the issue involved in the present case. G. That, other grounds shall be urged at the time of final arguments." 7. It is submitted by the counsel for the appellant that the courts should have locally inspected the spot to verify with regard to the existence of Gali between the house of the defendant and the plot of the plaintiff and while giving a finding with regard to the existence of a Gali, the courts below have ignored the sale deed dated 21/7/2003 in which no such Gali was shown. Further, it is submitted that the appellate court had committed an error of law by rejecting the application filed under Order XXVI Rule 9 CPC on the ground that no such application was filed before the trial court and the appellant has not given any plausible reason for not filing the same before the trial court itself. 8. Heard learned counsel for the appellant. 9. 8. Heard learned counsel for the appellant. 9. So far as rejection of the application filed under Order XXVI Rule 9 of CPC is concerned, it is well established principle of law that the local commissioner cannot be appointed for the purpose of collecting evidence. The appellate court by order dated 26/10/2016 had rejecting the application on the ground that in the light of the judgment passed by the High Court in the case of Babu Khan Vs. State of M.P. reported in MPWN 1980 (Vol.2) SN 261 it is clear that the commissioner cannot be appointed for collecting the evidence, apart from holding that the appellant could have filed a similar application during the trial. Thus, this Court is of the considered opinion that the appellate court did not commit any mistake by rejecting the application filed under Order XXVI Rule 9 CPC. 10. So far as the question of existence of way (Gali) between the house of the defendant and the plot of the plaintiff is concerned, it is a pure question of fact and the courts below have given a concurrent finding of fact with regard to existence of way (Gali) between the house of the defendant and the plot of the plaintiff. It is well established principle of law that this Court while exercising the power under Section 100 of CPC cannot interfere with the concurrent findings of facts even if they are shown to be erroneous. The findings of facts can be interfered with only when they are shown to be perverse. No perversity could be pointed out by the counsel for the appellant. 11. The Supreme Court in the case of Damodar Lal Vs. Sohan Devi and others reported in (2016) 3 SCC 78 has held as under : "8. "Perversity" has been the subject-matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. 9. In Krishnan vs. Backiam, (2007) 12 SCC 190 it has been held at para 11 that: (SCC pp. 192-93) "77. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. 9. In Krishnan vs. Backiam, (2007) 12 SCC 190 it has been held at para 11 that: (SCC pp. 192-93) "77. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. "10. In Gurvachan Kaur vs. Salikram, (2010) 15 SCC 530 at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." The Supreme Court in the case of Pakeerappa Rai Vs. Seethamma Hengsu Dead by L.R.s and others reported in (2001) 9 SCC 521 has held as under :- "2.......... But the High Court in exercise of power under Section 100 CPC cannot interfere with the erroneous finding of fact howsoever gross the error seems to be......." The Supreme Court in the case of Gurdev Kaur and Others Vs. Kaki and Others, reported in (2007) 1 SCC 546 has held as under :- "46. In Bholaram vs. Ameerchand (1981) 2 SCC 414 a three-Judge Bench of this Court reiterated the statement of law. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law. 47. In Kshitish Chandra Purkait vs. Santosh Kumar Purkait (1997) 5 SCC 438 a three-Judge Bench of this Court held: (a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law; (b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. The Court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage. 48. This Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor (1999) 2 SCC 471 . The Court stated that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. 49. A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait vs. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand vs. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed. 50. In Kanai Lal Garari vs. Murari Ganguly (1999) 6 SCC 35 this Court has observed that it is mandatory to formulate the substantial question of law while entertaining the appeal in absence of which the judgment is to be set aside. In Panchugopal Barua vs. Umesh Chandra Goswami (1997) 4 SCC 713 and Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 the Court reiterated the statement of law that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law. These judgments have been referred to in the later judgment of K. Raj vs. Muthamma. A statement of law has been reiterated regarding the scope and interference of the Court in second appeal under Section 100 of the Code of Civil Procedure. 51. Again in Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 another three-Judge Bench of this Court correctly delineated the scope of Section 100 CPC. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court the word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. According to the Court the word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code and Article 133(l)(a) of the Constitution. 52. In Kamti Devi vs. Poshi Ram (2001) 5 SCC 311 the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. 53. In Thiagarajan vs. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762 this Court has held that the High Court in its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 54. In the same case, this Court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 55. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 55. This Court again reminded the High Court in Commr., HRCE vs. P. Shanmugama (2005) 9 SCC 232 that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. 56. Again, this Court in State of Kerala vs. Mohd. Kunhi (2005) 10 SCC 139 has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure. 57. Again, in Madhavan Nair vs. Bhaskar Pillai (2005) 10 SCC 553 this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. 58. Again, in Harjeet Singh vs. Amrik Singh (2005) 12 SCC 270 this Court with anguish has mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 CPC. This Court, while setting aside the judgment of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the courts below. 59. In H.P. Pyarejan vs. Dasappa (2006) 2 SCC 496 delivered on 6-2-2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. 59. In H.P. Pyarejan vs. Dasappa (2006) 2 SCC 496 delivered on 6-2-2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes re-appreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside." The Supreme Court in the case of Municipal Committee, Hoshiarpur Vs. Punjab SEB and Others, reported in (2010) 13 SCC 216 has held as under:- "16. Thus, it is evident from the above that the right to appeal is a creation of statute and it cannot be created by acquiescence of the parties or by the order of the court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a court or authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance with the conditions mentioned in the provision that creates it. Therefore, the court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same. (Vide Santosh Hazari vs. Purshottam Tiwari; Sarjas Rai vs. Bakshi Inderjit Singh; Manicka Poosali vs. Anjalai Ammal; Sugani v. Rameshwar Das; Hero Vinoth vs. Seshammal; P. Chandrasekharan vs. S. Kanakarajan; Kashmir Singh vs. Harnam Singh; Vs. Ramaswamy vs. Ramachandran and Bhag Singh vs. Jaskirat Singh) 17. In Mahindra & Mahindra Ltd. vs. Union of India (1979) 2 SCC 529 this Court observed-: "12. ... it is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section (5) of Section 100 CPC. Under the proviso, the Court should be 'satisfied' that the case involves a 'substantial question of law' and not a mere 'question of law'. The reason for permitting the substantial question of law to be raised, should be 'recorded' by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that would be alleged at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded." [Kshitish Chandra Purkait vs. Santosh Kumar Purkait, (1997) 5 SCC 438 , pp. 445-46, para 10] 18. In Madamanchi Ramappa vs. Muthaluru Bojjappa AIR 1963 SC 1633 this Court observed: (AIR pp. 1637-38, para 12) "12. ... Therefore, 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 Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. 1637-38, para 12) "12. ... Therefore, 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 Section 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 Section 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." 19. In Jai Singh vs. Shakuntala (2002) 3 SCC 634 this Court held as under: (SCC pp. 637-38, para 6) "6. ... it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection." 20. While dealing with the issue, this Court in Leela Soni vs. Rajesh Goyal (2001) 7 SCC 494 observed as under: (SCC p. 502, paras 20-22) "20. There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous. 21. It will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact: * * * 22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (7) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC." 21. In Jadu Gopal Chakravarty vs. Pannalal Bhowmick the question arose as to whether the compromise decree had been obtained by fraud. This Court held that though it is a question of fact, but because none of the courts below had pointedly addressed the question of whether the compromise in the case was obtained by perpetrating fraud on the court, the High Court was justified in exercising its powers under Section 103 CPC to go into the question. (See also Achintya Kumar Saha vs. Nanee Printers) 22. (See also Achintya Kumar Saha vs. Nanee Printers) 22. In Bhagwan Sharma vs. Bani Ghosh, AIR 1993 SC 398 this Court held that in case the High Court exercises its jurisdiction under Section 103 CPC, in view of the fact that the findings of fact recorded by the courts below stood vitiated on account of non-consideration of additional evidence of a vital nature, the Court may itself finally decide the case in accordance with Section 103(6) CPC and the Court must hear the parties fully with reference to the entire evidence on record with relevance to the question after giving notice to all the parties. The Court further held as under: (Bhagwan Sharma case, SCC p. 499, para 5) "5. ... The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged, as has been done in the impugned judgment." 23. In Kulwant Kaur vs. Gurdial Singh Mann (2001) 4 SCC 262 this Court observed as under: (SCC pp. 278-79, para 34) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity. ... The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with'' The Supreme Court in the case of Narendra and others Vs. Ajabrao S/o Narayan Katare (Dead) Through Legal Representatives reported in (2018) 11 SCC 564 has held as under:- "19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in finding of fact provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or when it is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court to interfere. However, we do not find any such error here." 12. Considering the facts and circumstances of the case, this Court is of the considered opinion that the courts below did not commit any mistake by dismissing the suit as well as by dismissing the appeal filed by the appellant. Accordingly, the judgment and decree dated 27/10/2016 passed by First Additional District Judge, Sironj, District Vidisha in Civil Appeal No. 1-A/2016 and the judgment and decree dated 28/11/2015 passed by the Civil Judge, Class-I, Sironj, District Vidisha in Civil Suit No. 11-A/2015 are hereby affirmed. 13. The appeal fails and is hereby dismissed in limine.