JUDGMENT : 1. The present appeal arises from the impugned judgment and decree dated 04.08.2023 passed by the learned 8th Additional District Judge, Kachchh – Bhuj Regular Civil Appeal No. 6 of 2022, whereby the learned appellate Court below has allowed the appeal by quashing and setting aside the judgment and decree dated 31.12.2021 passed by the learned Principal Civil Judge, Naliya in Regular Civil Suit No. 4 of 2012, allowing the suit in favour of the plaintiff. 2. Heard learned advocate for the appellant. 3.1 Learned advocate Mr. Maulik M. Soni for the appellant has submitted that the learned appellate Court below has not properly interpreted the documents produced by the appellant. He has submitted that the reasoning given by the learned appellate Court below is completely irrelevant, illogical and against the evidence as well as provisions of law. He has submitted that just key is with the respondent after the death of father which is not given by the appellant and therefore, entire case of the appellant is not believable by the learned appellate Court below. He has further submitted that the learned appellate Court below has failed in properly re-appreciating the entire evidence and important aspects that the appellant is the owner of the property in question and against his wish or consent, the defendant is in possession of the property. 3.2 He has also submitted that the learned appellate Court has failed to consider the important aspect that the necessity of formulation of points for determination by the learned appellate Court below cannot be considered lightly and brushed aside as benefit of technical plea cannot be granted. In fact, formulation of points for determination has to be such that it should cover all important issues in dispute. Therefore, such formulation of points for determination cannot be vague. He has submitted that this appeal may be admitted. 4.1 I have heard learned advocate for the appellant. I have considered the documents annexed with this appeal. I have perused the impugned judgment and decree passed by the learned Courts below. 4.2 From record, the following undisputed facts are emerged : This is a dispute between two real brothers. The dispute is regarding Shop, being Panchayat Shop No.3/2/90 situated at Village : Naliya, District : Kachchh. The said shop was purchased by the elder brother viz., Thakkar Prakashbhai Kuvarji Vadera on 22.01.1992. He was residing at Mumbai. 4.2 From record, the following undisputed facts are emerged : This is a dispute between two real brothers. The dispute is regarding Shop, being Panchayat Shop No.3/2/90 situated at Village : Naliya, District : Kachchh. The said shop was purchased by the elder brother viz., Thakkar Prakashbhai Kuvarji Vadera on 22.01.1992. He was residing at Mumbai. He has given the shop in question on rent to his younger brother viz., Thakkar Kishor Kuvarji Vadera, in presence of his father, on rent of Rs.300/- per month, which was directly transferred to Dena Bank Account, Naliya of the elder brother by the younger brother or some time paid in cash. Thus, the possession of the shop in question is with the younger brother since the year 1993. 4.3.1 As averred, in the year 2012, when the elder brother visited village : Naliya, he found that his younger brother was in illegal possession of the shop in question and therefore, he has filed a suit being Regular Civil Suit No.4 of 2012 against the younger brother before the learned trial Court for eviction and possession. 4.3.2 The suit was decree in favour of the plaintiff – elder brother. Against which, the defendant – younger brother has filed the appeal before the learned appellate Court below, which is allowed by quashing and setting aside the judgment and decree of the learned trial Court. 4.3.3 It is this second appeal which is considered by this Court in view of above undisputed facts as well as contradictory findings by the learned Courts below. 5.1 The dispute before the learned trial Court was with regard to the eviction and possession. The plaintiff has mainly raised contention that the defendant has broken the lock of the suit property and has occupied the same and when the plaintiff requested him to vacate the same, the defendant has refused. The learned trail Court has framed the following issues (Exh.34 – para : 5 of the judgment) for its determination. (i) Whether the plaintiff proves that the suit property is in the occupation and possession of the plaintiff by way of ownership? (ii) Whether the plaintiff proves that the defendant has illegally dispossessed the plaintiff from the suit property on 01.01.2012 ? (iii) Whether the defendant proves that he is in possession of the suit property as tenant since long ? (ii) Whether the plaintiff proves that the defendant has illegally dispossessed the plaintiff from the suit property on 01.01.2012 ? (iii) Whether the defendant proves that he is in possession of the suit property as tenant since long ? 5.2 After hearing the parties and after taking into consideration the evidence – documentary as well as oral i.e. Exhs. 55, 73, 64 to 66, 79, 86, 122, 125, 89 to 114, the learned trial Court has allowed the suit and thereby directed the defendant to hand over the vacant and peaceful possession of the suit property to the plaintiff within one month from the date of judgment i.e. 31.12.2021. 5.3.1 While allowing the suit, the learned trial Court has taken into consideration Exh.89 – Rent Agreement which was executed by and between the parties at the relevant point of time and has observed that the suit shop was handed over to the defendant for use on monthly rent of Rs.300/-, but it cannot be said to be tenancy but a license for using the suit shop for monthly compensation, and that the learned trial Court has not accepted the applicability of Rent Act, and that the bank slips produced at Exh.97 would not construe to mean that the same was paid as a rent, and that the possession of the defendant is there as can be seen from Exh.98 and Exh.99 that he was carrying on business, however that does not show and mean that he was a tenant under the Rent Act, and that the defendant can be said to be a licensee under Section 52 of the Easements Act and thereby decreed the suit in favour of the plaintiff. 5.3.2 It is required to be noted that the learned trial Court has not given any finding regarding the main contention of the plaintiff that the defendant has broken the lock and occupied the suit property. 5.4 The said judgment and decree of the learned trial Court is challenged by the defendant before the learned appellate Court below by filing an appeal being Regular Civil Appeal No. 6 of 2022. The learned appellate Court below has framed the following points for determination (Exh.14), which is mentioned in paragraph – 9 of the judgment. 5.4 The said judgment and decree of the learned trial Court is challenged by the defendant before the learned appellate Court below by filing an appeal being Regular Civil Appeal No. 6 of 2022. The learned appellate Court below has framed the following points for determination (Exh.14), which is mentioned in paragraph – 9 of the judgment. (i) Whether the appellant is able to show that order and decree of the trial Court passed in Regular Civil Suit No.4 of 2012 dated 31.12.2021 is wrong, illegal and perverse in the eyes of law ? (ii) Whether the appellant is able to show that the trial Court has not evaluated oral or documentary evidence as per law ? (iii) Whether the trial Court has made any mistake in interpretation of the provisions of law ? (iv) Is there any mistake in the finding given by the trial Court on the issues framed by it ? (v) Whether the original suit was barred by any provisions of any law ? 5.5 After hearing the parties and after appreciating/re-appreciating the evidence – documentary as well as oral and after perusing the judgment and decree passed by the learned trial Court, the appellate Court below has allowed the appeal by quashing and setting aside the judgment and decree passed by the learned trial Court. 5.6.1 While allowing the appeal, the learned appellate Court below has evaluated various evidence on record, more particularly Exh.55 and that the key of the shop was with the defendant and there was no incident of breaking the lock by the defendant. The possession of the shop in question was with the father & brother and after the demise of the father, the same was with the defendant. Therefore, the contentions regarding breaking of lock and illegal tress-pass by the defendant are disproved. The possession of the shop in question was with the father & brother and after the demise of the father, the same was with the defendant. Therefore, the contentions regarding breaking of lock and illegal tress-pass by the defendant are disproved. 5.6.2 The learned appellate Court below has observed that the payment of rent for the year 1993 to 1998-99 is an admitted position, and that the final decision on each issue as narrated in the order of the learned trial Court is contrary to its own observation, and that the theory of illegal tress-pass by the defendant is also disproved as the suit is filed for the tress-pass and the plaintiff is not aware from the date on which the defendant made tress-pass in the suit property, and that the theory of breaking lock is disproved as it is an admitted fact by the original plaintiff that the possession was before their father and their father gave the key, whereas the learned trial Court has not believed the possession of the defendant as licensee and declared that the the defendant is responsible to vacate the possession on the notice of one month, which does not match with the facts of tress-pass as averred by the plaintiff in the suit. 5.7 Thus, from the above facts/undisputed facts and findings of the learned Courts below, it transpires that the learned trial Court has committed an error, so also an error of law while allowing the suit, whereas the learned appellate Court below has rightly considered the points framed by it and evaluated/re-appreciated the evidence in detail. This Court finds that the learned appellate Court below has not committed any error while passing the impugned judgment in favour of the original defendant. There is no illegality, perversity or impropriety in the impugned judgment passed by the learned appellate Court below. Therefore, the appellant Court has rightly passed the impugned order. 5.8 Considering the impugned judgment and observations made by the learned lower appellate court, as mentioned hereinabove, this Court is of the opinion that the learned lower appellate Court has given cogent, convincing, just and proper reasons to allow the appeal, which are in accordance with law and in consonance with the material available on the record and after properly appreciating the documentary as well as oral evidence produced on the record. 5.9 At this stage, it would be fruitful to refer to the provisions of Section 100 of the Code of Civil Procedure, 1908, which reads as under: “[100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 5.10 It is relevant to refer to the judgment of the Hon’ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others., reported in 2023 SCC Online SC 875, more particularly paragraphs 7, 14 and 15 thereof, which read as under : “7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:— “27. In HeroVinoth v. Seshammal, (2006) 5 SCC 545 , this Court referred to and relied upon Chunilal V. Mehta & Sons Ltd. v. Century Spg. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:— “27. In HeroVinoth v. Seshammal, (2006) 5 SCC 545 , this Court referred to and relied upon Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. 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 or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ], AIR p. 1318, para 5) ‘5. … when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.’ 28. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied) 14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:— “(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. They are:— “(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.” 15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 5.11 In view of the above discussion and the judgment cited hereinabove, when the learned lower appellate court has not ignored the material evidence and not drawn wrong inferences from the material available on record, and has rightly come to the conclusion and properly appreciated the evidence by framing points of determination under Order XLI Rule 31 of the Code, this Court does not find any reason to interfere with the same by framing substantial questions of law as suggested by the learned advocate for the appellant. 6. In view of above and under the circumstances, this appeal needs to be dismissed and is dismissed accordingly. 7. In view of dismissal of main appeal, the Civil Application would not survive and is disposed of accordingly.