JUDGMENT : Jaspreet Singh, J. 1. Heard Shri U.S. Sahai, learned counsel for the appellant. None has put in appearance on behalf of the respondent, despite the service. 2. The Court on 01.12.2021 had heard learned counsel for the appellant at some length, however, on his request, the matter has been listed today for further hearing. 3. The instant second appeal has been preferred against the part of the judgment and decree dated 07.03.1980 whereby the suit of the plaintiff-appellant seeking a decree of mandatory injunction has been refused insofar as the Plot No.2105/1 and Plot No.2105/2 is concerned. The plaintiff preferred a regular civil appeal against the aforesaid part before the lower Appellate Court which has also been dismissed by means of the judgment and decree dated 10.08.1983 passed by Second Additional District Judge, Sultanpur in Civil Appeal No.181/1980. 4. The instant appeal was admitted on 08.12.1983, however, while admitting the appeal, no substantial question of law was framed. 5. The Court required the learned counsel for the appellant to urge on the substantial question of law involved in this second appeal to facilitate its hearing on merits. 6. The submission of the learned counsel for the appellant is that in a suit instituted by the appellant for mandatory injunction where the property bearing Plot No.2105/1 and Plot No.2105/2 has been held to be the joint property of the plaintiff and the defendant as also confirmed by the Consolidation Courts, hence, in the aforesaid backdrop, it was not open for the defendant-respondent to have raised constructions without the partition of the property and in the aforesaid backdrop, the plaintiff-appellant is entitled to seek a decree of mandatory injunction for removal of the constructions raised by the defendant-respondent. 7. It has been submitted that this aspect of the matter has not been properly considered by the Lower Appellate Court while dismissing the appeal and at the same time upholding the findings of the trial court insofar as the right of the plaintiff over the Plot No.2106 is concerned. 8. It is urged that the lower Appellate Court had committed an error in interfering with the findings insofar as Plot No.2106 is concerned, which was decreed in favour of the plaintiff-appellant and the same was not even the subject matter of appeal nor the defendant had filed any cross-appeal against the said findings. 9. 8. It is urged that the lower Appellate Court had committed an error in interfering with the findings insofar as Plot No.2106 is concerned, which was decreed in favour of the plaintiff-appellant and the same was not even the subject matter of appeal nor the defendant had filed any cross-appeal against the said findings. 9. It is also submitted that one co-owner cannot raise construction over the joint property land without the consent of other co-owner and if having done so, one co-owner had the right to get the offending construction removed and in view of the aforesaid, the lower Appellate Court has also committed error in ignoring the aforesaid aspect of the matter. 10. Learned counsel for the appellant in order to buttress his submission has also drawn attention of the Court to an application moved by the appellant bearing Civil Misc. Application No.11806 of 2018 purported to be under Order 41 Rule 27 CPC. The appellant has brought on record a certified copy of the order passed by the Settlement Consolidation Officer dated 05.12.1978 passed in Appeal No.1695 between the parties of the instant appeal. 11. The submission is that even in the consolidation proceedings, the rights of the parties insofar as the Plot No.2105/1 and Plot No.2105/2 is concerned, it was held to be joint. 12. It is urged that taking note of the aforesaid decision, it will be helpful in doing substantial justice between the parties and it should be taken note of. The effect would be that once the land in question is found to be joint. It will further go on to substantiate the plea of the appellant that the defendant did not have the right to raise construction without getting the property partitioned and impinging the rights of the other co-sharer. 13. The Court has heard learned counsel for the appellant and has also perused the record. 14. Before adverting the submissions of the learned counsel for the appellant, certain brief facts giving rise to the instant appeal are being noticed first. 15. The plaintiff-appellant instituted a suit bearing R.S.No.229/1975. It was specifically pleaded that the plaintiff is the owner of the Plot No.2106. It was also urged that the plaintiff along with the defendant is also the owner of the Plot No.2105. 15. The plaintiff-appellant instituted a suit bearing R.S.No.229/1975. It was specifically pleaded that the plaintiff is the owner of the Plot No.2106. It was also urged that the plaintiff along with the defendant is also the owner of the Plot No.2105. The plaintiff has permitted the defendant to cultivate Plot No.2105 (an area of 4 biswas) on the Northern side whereas the remaining area of Plot No.2105 on the Southern side remained with the plaintiff. It was also stated that there was no division of Plot No.2105 in the revenue records nor the defendant had any concern with the disputed land but in the month of August, 1975, he started raising construction in the disputed land which prompted the plaintiff to institute the suit. 16. The defendant-respondent contested the suit by filing written statement. It was disputed that the construction in question existed on Plot No.2105/2. It was stated that the defendant was the 'Sirdhari' of the said land and recorded so in the revenue records. It was further urged that if at all the constructions are found to be existing on Plot No.2106 since the defendant is in possession over it since long, therefore, he has acquired rights by adverse possession and for the said reasons the plaintiff did not have a right to get the said constructions removed. 17. The trial Court on the basis of the pleadings exchanged between the parties framed as many as 12 issues. However, the relevant issue to decide the controversy was whether the disputed construction lies on Plot No.2105/1 and Plot No.2105/2. The other issue was whether the plaintiff is an exclusive owner of Plot No.2106 and co-owner of Plot No.2105, if so, its effect? Certain other issues relating to maintainability of the suit in terms of Section 34 of the Specific Relief Act was also framed including whether the plaintiff had any right to sue. Issues regarding under valuation of the suit, insufficiency of Court fee as well as whether the Court had the jurisdiction to try was also framed, amongst others. 18. The trial court after considering the oral as well as documentary evidence led by the parties recorded a finding that insofar as Plot No.2106 is concerned, the same vested and belonged to the plaintiff. However, insofar as the evidence regarding construction over the Plot No.2105 is concerned that was not found in favour of the plaintiff. 18. The trial court after considering the oral as well as documentary evidence led by the parties recorded a finding that insofar as Plot No.2106 is concerned, the same vested and belonged to the plaintiff. However, insofar as the evidence regarding construction over the Plot No.2105 is concerned that was not found in favour of the plaintiff. It was also held that insofar as the Plot No.2105 is concerned, the plaintiff was merely a co-owner, hence, with the aforesaid, the suit of the plaintiff was dismissed. 19. The plaintiff being aggrieved against the said judgment and decree dated 07.03.1980 insofar as partly dismissing the suit of the plaintiff is concerned, preferred a Regular Civil Appeal No.181/1980. The Appellate Court also noticing the fact that the findings of the trial Court insofar as the Plot No.2106 is concerned are based on sound reasoning and did not require any interference. However, the findings of the trial Court in respect of Plot No.2105 were also found to be appropriate and the lower Appellate Court declined to interfere, consequently, the appeal was dismissed by means of the judgment and decree dated 10.08.1982. 20. In light of the aforesaid backdrop, if the submission of the learned counsel for the appellant is tested in light of the material available on record, it would indicate that the plaintiff had filed a suit clearly stating that insofar as the Plot No.2106 is concerned, the same belonged to the plaintiff and the same has been upheld by the Courts below. Thus, this aspect of the matter does not require any adjudication as it is not in controversy. 21. The only issue is whether the findings regarding the Plot No.2105 are appropriate and could give the right to the plaintiff to seek a remedy of removal of construction through the decree of mandatory injunction, is to be seen. 22. At this stage, it will be relevant to notice that the suit was instituted in the year 1975 wherein it was pleaded that the defendant had started raising constructions in the month of August, 1975. It is also not disputed by the learned counsel for the appellant that the consolidation proceedings in respect of two plots was already in operation. At this stage, it will be relevant to notice that the suit was instituted in the year 1975 wherein it was pleaded that the defendant had started raising constructions in the month of August, 1975. It is also not disputed by the learned counsel for the appellant that the consolidation proceedings in respect of two plots was already in operation. A specific plea was also noticed by the lower Appellate Court, however, it held that the suit would not abate in terms of Section 5 of the U.P. Consolidation and Holdings Act, 1953. Since, the relief as sought by the plaintiff was not within the domain of the consolidation Court. 23. Another aspect to be noticed is the judgment passed by the lower Appellate Court dated 10.08.1983 wherein the aforesaid issue was noticed and the instant appeal has been preferred in the year 1983 and only in the year 2018, the appellant has moved an application under Order 41 Rule 27 CPC and has brought on record the judgment and decree dated 05.12.1978 passed by the Settlement Consolidation Officer in Appeal No.1695. There is no explanation whatsoever as to why the aforesaid judgment could not have been brought on record since the decision of the Settlement Consolidation Officer is even prior to the date of the decision of the trial Court. Even when the first appellate Court dismissed the appeal in the year 1983 noticing that the proceedings were pending before the consolidation authorities even then at the time of filing the second appeal, the said judgment has not been placed on record. 24. Even if for the sake of argument, the aforesaid judgment is taken on record and noticed even then it would only indicate that the plaintiff is the co-owner along with the defendant in respect of Plot No.2105/1 and Plot No.2105/2. This would indicate that the property remained joint. The case of the plaintiff is that he had given four biswas of land to the defendant for cultivation towards the Northern side. 25. In the aforesaid backdrop, there has been no attempt of the plaintiff before the consolidation authority to get their shares demarcated. On the other hand, the specific pleas in the civil suit from which the instant appeal arises is that there has been an informal partition and despite the same the defendant has raised construction over the land belonging to the plaintiff. On the other hand, the specific pleas in the civil suit from which the instant appeal arises is that there has been an informal partition and despite the same the defendant has raised construction over the land belonging to the plaintiff. However, there is no material on record to indicate the details of the said partition. Also, there is nothing to indicate as to what is the extent of the aforesaid constructions and whether the aforesaid constructions are situate on Plot No.2106 or Plot No.2105. There is also no material to indicate that the offending constructions are situate on the area other than 4 biswas which according to the plaintiff has been given to the defendant for cultivation. In absence of any such material, this Court finds that there is no error committed by the two courts below in dismissing the suit and denying the relief of mandatory injunction to the plaintiff for removal of the constructions. 26. In the instant case, at no point of time, the plaintiff ever sought the relief of partition. In absence of substantive relief and relevant material on record to arrive at a finding, it cannot be said that two courts below have committed any error. Apart from the fact that the issue which is raised by the appellant is concluded by findings of fact which do not require any inference from this Court. 27. For the aforesaid reason as well, the application under Order 41 Rule 27 CPC moved by the appellant also does not have any merit and is liable to be rejected. 28. The Apex Court in the case of Nazir Mohamed vs. J. Kamala and Others, 2020 SCC OnLine SC 676 has held as under:- < "36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam, AIR 1963 SC 302 . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter. 37. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter. 37. The principles relating to Section 100 CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. (iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 29. In the case of State of Rajasthan & Ors. Vs. Shiv Dayal & Anr., (2019) 8 SCC 637 , the Apex Court held as under:- < "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)" 30. In Gurnam Singh (Dead) by Legal Representatives & Ors. Vs. Lehna Singh (Dead) by Legal Representatives, (2019) 7 SCC 641 , the Apex Court held as under:- < "14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain [Ishwar Dass Jain v.Sohan Lal, (2000) 1 SCC 434 ] . In the aforesaid decision, this Court has specifically observed and held: (SCC p. 437) “Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.” xxx -------- xxx --------xxx --------xxx --------xxx --------xxx 19. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the courts below and/or the first appellate court and if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. We have noticed and even as repeatedly observed by this Court and even in Narayanan Rajendran v. Lekshmy Sarojini [Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264 : (2009) 2 SCC (Civ) 500] , despite the catena of decisions of this Court and even the mandate under Section 100 CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the first appellate court, either without formulating the substantial question of law or on framing erroneous substantial question of law." 31. In Thulasidhara & Anr. Vs. Narayanappa & Ors., (2019) 6 SCC 409 , the Apex Court held as under:- < "7.1.. . . It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of “a substantial question of law” is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. 7.2. The existence of “a substantial question of law” is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. 7.2. As observed and held by this Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 , in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal." 32. In Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:- < "…… These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law." 33. In another case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:- < "…interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal." 34. In one more case of Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible. 35. Such errors constitute a question of law permitting interference in Second Appeal." 34. In one more case of Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible. 35. The judgment and decree passed by the lower Appellate Court dated 10.08.1983 in Regular Civil Appeal No.181/1980 whereby it has affirmed the judgment and decree dated 07.03.1980 passed in R.S. No.229/1975 are upheld. 36. In the result, the second appeal is dismissed. In the facts and circumstances, there shall be no order as to costs. 37. Office is directed to remit the record of the trial Court forthwith. Q