JUDGMENT : 1. The present Second Appeal, under Section 100 of the Civil Procedure Code, (hereinafter referred to as “the Code” is filed by the appellant – original plaintiff, challenging the impugned judgment and decree dated 21.09.2021 passed by the learned 9th Addl. District Judge, Kachchh at Bhachau in Regular Civil Appeal No.15 of 2020 (Old No.RCA No.19 of 2018) as well as the impugned judgment and decree dated 31.03.2017 passed by the learned Principal Civil Judge, Bhachau, Kachchh in Regular Civil Suit No.23 of 2011, whereby the same were dismissed. 2. Heard Mr. Mehul H. Rathod, the learned counsel for the appellant at length. 3.1 He has drawn the attention to the impugned judgments of the courts below as well as paper-book along with relevant documents, which were produced by him for perusal of the Court. Additionally, he has referred the plaint in question and has submitted that the courts below have not properly considered the case of the present appellant and the impugned judgments and decree suffer from vices of non-application of mind to the material on record and unreasoned one and, therefore, the same are required to be set aside. Furthermore, he has submitted that the courts below have erred in holding that there could be error in writing measurement of the land in the registered sale deed dated 13.06.1986 bearing Index No. 1499, and without there being an iota of evidence on record to the effect that there was error in writing measurement of the land in the registered sale deed and therefore also, the same are liable to be set aside. Furthermore, he has submitted that the courts below have erred in holding that the suit is barred by principle of res judicata, though the earlier civil suit being Regular Civil Suit No.47 of 1987 was in respect of taking back the possession, whereas the present suit was for declaration and permanent injunction in respect of A.02-23 Gutha land of Revenue Survey No. 908 Paiki i.e. title of the land. Furthermore, he has submitted that it is a settled legal position that a registered document and it's contents are presumed to be true unless, the same are agreed upon by the parties to the suit or adjudicated by a competent court and the learned courts below held that, there could be an error in writing measurement of the land in the registered sale deed in the absence of both; the criteria and material on record and solely on the basis of surmises and presumptions and, therefore also, the same are liable to be set aside. Furthermore, he has submitted that the impugned judgments and decree are not in consonance with the provisions of Civil Procedure Code, 1908 and Indian Evidence Act, 1872 and, therefore, also the same are liable to be set aside by exercising the jurisdiction under Section 100 of the Code. Furthermore, he has submitted that the courts below have also erred in dismissing the suit as well as appeal merely relying on averments made in the written statement by the defendant without leading any cogent and convincing evidence by the defendant and, therefore also, the impugned judgments are required to be set aside. 3.2 Furthermore, he has drawn my attention to proposed substantial question of law, which is as under: The appellant herein raises following substantial questions of law: (i) Whether the Ld. Courts below were legally right in dismissing Regular Civil Suit No. 23 of 2011 and Regular Civil Appeal No. 15 of 2020? (ii) Whether the Ld. Courts below were legally right in holding that, the suit is barred by principle of Res-Judicata, though the earlier civil suit being Regular Civil Suit No. 47 of 1987 between the parties were in respect of taking back the possession, whereas the present suit was for declaration and permanent injunction in respect of A. 2-23 Gu. land of revenue survey No. 908 paiki? (iii) Whether the Ld. Courts below were legally right in holding that, there could be error in writing measurement of the land in the registered sale deed dated 13.06.1986 bearing index No. 1499, without there being any material on record prove that there was error in writing measurement of the land in the registered sale deed? (iv) Whether the Ld. (iii) Whether the Ld. Courts below were legally right in holding that, there could be error in writing measurement of the land in the registered sale deed dated 13.06.1986 bearing index No. 1499, without there being any material on record prove that there was error in writing measurement of the land in the registered sale deed? (iv) Whether the Ld. Courts below were legally right in dismissing the suit relying on only averments made in the written statement and/or the oral submissions made by the defendants? (v) Whether the Ld. Courts below were legally right in believing the submissions of the defendants, though the defendants have refused to enter into witness box nor have led any oral evidences? (vi) Whether the Ld. Courts below were legally right in believing the sale of the defendants without there being cross-examination of the defendants? (i) Whether the Ld. Courts below were legally right in dismissing Regular Civil Suit No. 23 of 2011 and Regular Civil Appeal No. 15 of 2020? (ii) Whether the Ld. Courts below were legally right in holding that, the suit is barred by principle of Res- Judicata, though the earlier civil suit being Regular Civil Suit No. 47 of 1987 between the parties were in respect of taking back the possession, whereas the present suit was for declaration and permanent injunction in respect of A. 2-23 Gu. land of revenue survey No. 908 paiki? (iii) Whether the Ld. Courts below were legally right in holding that, there could be error in writing measurement of the land in the registered sale deed dated 13.06.1986 bearing index No. 1499, without there being any material on record prove that there was error in writing measurement of the land in the registered sale deed? (iv) Whether the Ld. Courts below were legally right in dismissing the suit relying on only averments made in the written statement and/or the oral submissions made by the defendants? (v) Whether the Ld. Courts below were legally right in believing the submissions of the defendants, though the defendants have refused to enter into witness box nor have led any oral evidences? (vi) Whether the Ld. (v) Whether the Ld. Courts below were legally right in believing the submissions of the defendants, though the defendants have refused to enter into witness box nor have led any oral evidences? (vi) Whether the Ld. Courts below were legally right in believing the sale of the defendants without there being cross-examination of the defendants?” 3.3 Lastly, he has relied on the judgment of the Hon’ble Apex Court in the case of Sajjadanashin Sayed vs. Masu Dadabhai Ummer And Others reported in (2000) 3 SCC 350 , more specifically, paragraph 18 is relevant and has submitted that the courts below have failed in considering the fact that the issue of res judicata under Section 11 of the Code is not applicable in the facts of the present case, whereby in the earlier suit, it is for getting back the possession and in the present suit, it is for the declaration and injunction and, therefore, the matters cannot be considered “directly & substantially” in issue and collaterally or incidentally" in issue and, therefore, the courts below have committed grave error in the eyes of law. Hence, he has prayed to admit the present Second Appeal and grant interim relief, as prayed in the Civil Application. 4.1 I have considered the submissions made by the learned advocate for the appellant, as the present appeal is at the admission stage and also perused the material available on the record, more particularly, the judgments passed by both the courts below as well as paper-book provided by the learned advocate for the appellant. It transpires that the present suit, numbered as Regular Civil Suit No. 23 of 2011, was initiated before the Civil Court, Bhachau, seeking a declaration and injunction concerning Old Revenue Survey No. 1339 and New Revenue Survey No. 908 Paiki, along with other land pertaining to Old Revenue Survey No. 1729. Within this land parcel, the father of the defendant executed a sale deed on 13.06.1986, registered under Index No.1499, for a consideration of Rs.2,000/- concerning the land within Old Revenue Survey No. 1339, admeasuring 6 acres. Pursuant to that, some dispute has arisen between the parties. Thereafter, the notice is served and various documentary evidences are referred in paragraph 4 of the judgment of the trial court. The defendant has also produced the documentary evidences at Exh.54 & 55. The issues were framed by the trail court, as under: Issue 1. Pursuant to that, some dispute has arisen between the parties. Thereafter, the notice is served and various documentary evidences are referred in paragraph 4 of the judgment of the trial court. The defendant has also produced the documentary evidences at Exh.54 & 55. The issues were framed by the trail court, as under: Issue 1. Whether plaintiff proves that defendants have shared suit property in different survey numbers and created illegal document of Right of Records 2. Whether defendants prove that there was bonafide mistake in recording measurement while making sale deed relating to suit property? 2A. Whether defendants proves that the present suit is barred by res judicata due to decision in earlier Suit No- 47/1987? 3. Whether plaintiffs is entitled for relief as prayed in the suit? 4. What Order and decree? My replies to the above issues are as under: - (1) In negative (2) In affirmative (2A) In affirmative (3) In negative (4) As per final order 4.2 I have also taken into account the rationale provided by the trial court. The trial court meticulously scrutinized the evidence and arrived at a conclusion based on the documents presented. It determined that the plaintiff had failed to substantiate their claim that the defendant's father sold a total land area admeasuring of 6 acres, as purportedly indicated in the sale deed, but there is some error in mentioning the said area in the sale deed. The evidence provided by the power of attorney holder of the plaintiff, Ashoksih Narbhasih Jhala, as presented in Exh.27, does not corroborate the plaintiff's assertion that the transaction pertains to a 6- acre land. He has clarified that he has no knowledge regarding the specific details of the land transaction in question. During his cross-examination, the plaintiff, as evidenced at Exh.32, admitted that he was unaware of another case, namely Regular Civil Suit No. 47 of 1987, filed in court, and the accompanying documents pertaining to that suit, and that suit is also dismissed. However, upon considering the judgment referenced by the defendants in the suit at Exh.55, it becomes evident that the present plaintiff had filed the suit where the defendant was depicted as the father of the present defendants. Subsequently, the suit was dismissed. It is worth noting that in that suit, the plaintiff had cited the same document upon which reliance is being placed in the present suit. Subsequently, the suit was dismissed. It is worth noting that in that suit, the plaintiff had cited the same document upon which reliance is being placed in the present suit. The trial court has also found that since the plaintiff has conceded many things in his crossexamination and in view of Section 58 of the Indian Evidence Act, when there is admission of the parties, such facts are not required to be proved. Moreover, it is found by the trial court that the document executed in the year 1966 accurately delineates the boundaries, and possession of additional land was handed over to the defendants. The plaintiff has conceded to these facts, as evidenced by the findings of the trial court, and the boundaries outlined in Civil Suit No. 47 of 1987 were also acknowledged by the plaintiff. 4.3 Therefore, the trail court has also found that the important aspect of the earlier suit i.e. Regular Civil Suit No.47 of 1987 is suppressed in the present suit and the plaintiff has not mentioned about the boundaries of the properties in question in the present suit also, which clearly shows that the plaintiff has not come with clean hand before Court. The Court has also found that earlier suit i.e. Regular Civil Suit No.47 of 87 is filed for the same sale deed and revenue record and it is based on the same set of documents. The issues framed in the suit, particularly issues Nos. 4, 5, and 6, resulted in findings against the present plaintiff. It was observed that the plaintiff filed the present suit raising the same issues as in a previous suit. Consequently, the court concluded that the present suit is barred by the principle of res judicata. This is because it involves the same property, the same parties, and the same subject matter, with similar issues remaining unresolved in both proceedings. The trial court has extensively discussed on the issues framed in both the earlier suit, i.e., Regular Civil Suit No. 47 of 1987, and the issues involved in the present suit. 4.4 The trial court has also considered Section 11 of the Code, as under: “Section 11. Res judicata. The trial court has extensively discussed on the issues framed in both the earlier suit, i.e., Regular Civil Suit No. 47 of 1987, and the issues involved in the present suit. 4.4 The trial court has also considered Section 11 of the Code, as under: “Section 11. Res judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” 4.5 Hence, the Court has come to the conclusion that the suit is barred by principle of res judicata and the findings on issue No.2 is also given by holding that the suit is barred by principle of res judicata. The trial court has come to the conclusion that in the sale deed, probably some mistake has occurred in mentioning the measurement of land in question, that itself does not give any conclusive right to the plaintiff to claim that he is holding the land in question to that extent and, therefore, the trial court has dismissed the suit after recording finding of all these issues at the time of trial. 4.6 Thereafter, the matter is carried before the lower appellate court. The lower appellate court has also framed the point of determination that mainly whether the impugned judgment and decree passed by the trial court in Regular Civil Suit No.23 of 2011 by rejecting the suit is against the position of law, illegal, erroneous, irregular and against the facts of law, unclear, defective and required interference or not? 4.7 After considering the various contentions raised by the appellant as well as the respondent, who are original plaintiff and defendants respectively. The lower appellate court has given detailed reasons by re-appreciating the evidence. The lower appellate court has also come to the conclusion that in the impugned deed, the plaintiff has also made some correction/interpolation without the permission of the Court. The Court has also found that the plaintiff has pleaded in the suit that no proof is adduced in support of such pleadings. The Court has also appreciated the cross-examination, whereby the plaintiff has accepted the execution of document. The Court has also found that the plaintiff has pleaded in the suit that no proof is adduced in support of such pleadings. The Court has also appreciated the cross-examination, whereby the plaintiff has accepted the execution of document. Additionally, the plaintiff had also obtained the document, which is produced at Exh.28-B, which was obtained from the Sub-Registrar Office and, therefore, the Court has considered that such documents are within the knowledge of the plaintiff. 4.8 The lower appellate court has also considered the aspect of limitation. The sale deed is admittedly executed on 13.6.1966. Section 3 of the Limitation Act is also discussed in the suit, as under: “Section 3. Bar of limitation. (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act,-- (a) a suit is instituted,-- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-- (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.” 4.9 It is considered that the suit is required to be filed within prescribed period of limitation. The plaintiff was aware about the execution of the sale deed in the year 1966, but the plaintiff has not filed the suit within three years’ period from the year 1966. Therefore, the suit is also required to be considered as barred by limitation. The plaintiff was aware about the execution of the sale deed in the year 1966, but the plaintiff has not filed the suit within three years’ period from the year 1966. Therefore, the suit is also required to be considered as barred by limitation. Though such issue is not framed either by the learned trail court as well as the lower appellate court, but the lower appellate court has considered this aspect as this is essential aspect for placing question of law, which is required to be considered on the aspect of limitation. The lower appellate court has also considered the deposition marked at Exh.34, whereby it is not disclosed on the oath by the plaintiff that the disputed land, where he is claiming his right, is in his possession till which date and, therefore, the lower appellant court has rightly come to the conclusion that since the year 1966, the plaintiff was not in possession of the land in question of disputed land. The lower appellant court has considered the cross-examination, whereby the admission of the plaintiff is coming on record that it is true that the land shown in Regular Civil Suit No.47 of 1987 as the boundaries are is sold as per the boundaries mentioned in the suit. Thereafter, the plaintiff is also disclosing in his cross-examination that he is not aware about the Regular Civil Suit No.47 of 1987. The lower appellant court has also taken serious note of this aspect. The lower appellant court has also considered the aspect of res judicata, which is one of the subject matters and has come to the conclusion after considering provisions of Section 11 of the Code that, the issues involved in the present suit as well as earlier suit i.e. Regular Civil Suit No.47 of 1987 are almost similar and once the issue is decided in earlier suit i.e. Regular Civil Suit No.47 of 1987 for the same suit land between the same party, then the present suit is barred by principle of res judicata in view of Section 11 of the Code. 4.10 The Court has referred Section 12 of the Code, as under: “Section 12. Bar to further suit. 4.10 The Court has referred Section 12 of the Code, as under: “Section 12. Bar to further suit. Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.” 4.11 The Court has also referred Order II Rule 2 of the Code, as under: “Order II Rule 2:- Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.” 4.12 Thereafter, considering the aspect that the suit is not maintainable further, once the rights are decided in the earlier suit and the plaintiff has to claim all the prayers in the earlier suit and, therefore, the lower appellate court after re-appreciating the evidence in detail has also confirmed the findings given by the trail court. 4.13 Therefore, I have also considered the submissions made at the bar by learned advocate for the appellant in detail. He has agitated the grievance by harping; only one issue i.e. issue of res judicata as main issue and has not argued much on the other aspects. Now, this Court, while considering the Second Appeal, has very restricted jurisdiction to examine the matter, more particularly, on the aspect of, whether any substantial question of law involved in the proceeding or not. 4.14 Section 100 of the C.P.C. is fruitful to refer, which is as under: “Section 100. 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. (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. STATE AMENDMENT Kerala. In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely: (d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question.” 4.15 It is also required to refer the recent judgment of the Hon’ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs. vs. Gurcharan Singh (Dead) Through Lrs and Others reported in (2023) SCC OnLine SC 875, more specifically, paragraph 7, 14 & 15 are relevant, 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. S eshammal, (2006) 5 SCC 545 , this Court referred to and relied upon Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. In Nazir Mohamed v. J. Kamala(2 Judge Bench), it was observed: “27. In HeroVinoth v. S eshammal, (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 : (192728) 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 and Anr. v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgment rendered in Ramathal v. Maruthathal & Ors (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.” 4.16 The parameters for considering any Second Appeal is now well established; normally the appellate court will not disturb the concurrent finding of facts established by the lower or first appellate court, while exercising powers under Section 100 of the Code for the Second Appeal. However, it is also equally well recognized that this rule is not an absolute one or in other words, it is not a rule set in stone. The Hon’ble Apex Court has in many matters recognized 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.” The Court can also exercise the powers if 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. In the present case, neither case is made out that the courts below have ignored material evidence nor it can be said that the courts have drawn wrong inferences from the admitted facts or nor applied the law erroneously. Neither it can be said that the courts have wrongly cast the burden of proof on the parties in wrong manner, nor it can be said that the findings given by the court below suffers from the material irregularity. On the contrary, considering the fact that, the plaintiff has not come with clean hand before the Court by filing special suit by suppressing material fact. Moreover, the suit is filed in the year 2011 after so many years by disputing the execution of the sale deed of the year 1966. Additionally, considering the fact that in the earlier suit, the lease between the parties is almost adjudicated and the issues involved in both the suits are almost identical, and taking into account that in earlier suit, the Court has given proper and appropriate finding, which are never challenged by way of appeal and, therefore, it is not proper on the part of the plaintiff to claim any further right other than claimed in the plaint and the courts below have rightly come to the conclusion by dismissing the suit as well as appeal. 4.17 In the totality of the facts and circumstances of the present case, I am of the opinion that there is no error in law committed by both the courts below, and no substantial question of law is borne out in the Second Appeal and the courts below have rightly concluded the materials available on the record and have come to the correct conclusion. Therefore, no interference is required to be called for by the Court. 5. Resultantly, the present Second Appeal is dismissed, with no order as to costs.