JUDGMENT 1. This Second Appeal has been directed against the judgment and decree dated 15.09.1998 passed by the Additional District Judge, 5th Court, in Title Appeal No. 25 of 1998. By the impugned judgment the court below affirmed in part and reversed in part the judgment and decree of dismissal dated 18.12.1997 passed by the learned Civil Judge (Senior Division), Diamond Harbour in T.S. No. 19 of 1996. 2. Background of the present dispute may be summarized as follows:- The suit properties originally belong to one Abani Ranjan Mondal, father of the petitioners and the predecessor-in-interest of the opposite party no.1 and 2, who were joint owners of the said property. Said three brothers namely Abani Ranjan Mondal, Tarapada Mondal and Shyama Pada Mondal by a registered deed of partition dated 27thJune, 1989 got all their properties partitioned in equal three shares and had been enjoining respective demarcated portion in terms of the said deed of partition. In the said deed of partition the present suit properties namely, the western portion of the northern bank of tank in plot No. 1476 measuring about 872 sq.ft., a tank having an area of 16 decimal at plot no. 1473 and another tank having an area of 060 decimals at plot no. 1477 mentioned in ‘ka’ schedule to the plaint and pathway in the western portion of plot no. 667/1027 measuring 90ft x 6ft (app) mentioned in ‘kha’ schedule to the plaint were kept joint. 3. Thereafter the father of the petitioner namely Abani Ranjan by a deed of gift dated 15.09.1990 transferred his entire share in the suit properties in favour of the petitioners, who after accepting the deed of gift exercised their right and possession over the properties which were exclusively allotted to them as well as aforesaid properties which were kept unpartitioned and common in the partition deed. It is alleged by the plaintiffs that they have made various improvements specially in the northern portion of the eastern bank in plot no. 1476 and constructed a pakka ghat for their own use and occupation. It is further case of the plaintiff/appellants that the respondent/defendants started disturbing their peaceful possession of the said ghat by interfering with their user of the common pathway meant for all the parties as per deed of partition, in the western portion of the plot no. 1476 and constructed a pakka ghat for their own use and occupation. It is further case of the plaintiff/appellants that the respondent/defendants started disturbing their peaceful possession of the said ghat by interfering with their user of the common pathway meant for all the parties as per deed of partition, in the western portion of the plot no. 667/1027 and also obstructed the plaintiffs’ possession of the aforesaid two tanks and allegedly depriving the plaintiffs from giving their share of income derived from the said tanks. It is further alleged that defendant illegally removed the pillars and refused to act in terms of partition deed and threatened the plaintiffs to dispossess and also threatened to block aforesaid pathway lying to the west to plot no 667/1027 4. Since the respondents allegedly obstructing the plaintiffs/appellant to the user of the common portion measuring about 872 sq.ft. on the eastern side of the northern bank and also on other common passage as well as watery portion of the two tanks, the appellants are facing tremendous difficulty in possessing their share in the suit property and as such they requested the respondents to make further partition in respect of the joint portion of the bank and watery portion of the tanks mentioned in schedule ‘ka’ and ‘kha’ to the plaint but the respondents declined to make partition of the aforesaid common properties, which compelled the plaintiffs/appellants to file aforesaid T.S. No. 19 of 96 claiming partition of the said joint portion, of pathway and watery portion of the tanks, in respect of which in the deed of partition, though shares of the parties was declared but there is no physical demarcation. The plaintiffs beside the prayer for partition of the aforesaid items mentioned in schedule to plaint also prayed for a decree of injunction interalia restraining defendants from obstructing ‘kha’ schedule mentioned passage measuring 90ft. X 6 ft, being the western portion of Dag No. 667/1027, meant for joint user of the parties and from changing the nature and character of the same and from catching entire fish from the said undivided tank mentioned in the schedule. 5. The defendants nos. 1 and 2 while denying all the material allegations contained in the plaint alleged that the northern bank comprised in plot no. 1476 of tank in plot no. 5. The defendants nos. 1 and 2 while denying all the material allegations contained in the plaint alleged that the northern bank comprised in plot no. 1476 of tank in plot no. 1477 measures actually, 05 decimal and not, 08 decimals and there is no bank lying in ejmal to the extreme eastern corner of the northern bank of the tank in plot no. 1477. They alleged that the defendant no.1 for his convenience constructed a pacca ghat out of his own fund in the northern bank of tank in plot no. 1477 and prior thereto all the co-sharers had constructed a ‘Ghat’ in the eastern bank of the said tank in plot no. 1477. It is said that if the tanks are divided, the co-sharers would face inconvenience as the water of tank is being used for domestic purpose. As to the path way to the west of plot no. 667/1027, it is alleged that it is impartible and the parties are not entitled to block the path way and the defendants never blocked the path way. In the additional written statement, it has been stated that there is an old broken ejmali ghat in the north of the tank, ghat in the eastern side was constructed by all the co-sharers by selling fish of the tank of plot no. 1477 and it is false to say that plaintiffs constructed that ghat. As to the path way to the west of plot no. 667/1027 it is alleged that there is no existence of the pathway and that path way was eroded to the tank of plot no. 1473. 6. During trial both the parties adduced oral and documentary evidence but the trial court dismissed the suit with the observation that plaintiffs have miserably failed to prove their own case and they have also failed to prove that they constructed the ghat out of their own fund and on the contrary it cannot be ruled out that the construction of the ghat was made from joint fund. Accordingly Trial Court refused to pass either decree for partition or injunction in respect of the suit properties. 7. Being aggrieved by the aforesaid judgment passed by the Trial Court, the plaintiff/appellants preferred first Appeal before Alipore court and the learned First Appellate court after hearing the parties observed that the pathway over plot no. Accordingly Trial Court refused to pass either decree for partition or injunction in respect of the suit properties. 7. Being aggrieved by the aforesaid judgment passed by the Trial Court, the plaintiff/appellants preferred first Appeal before Alipore court and the learned First Appellate court after hearing the parties observed that the pathway over plot no. 667/1027 is a common passage and plaintiff’s specific case is that defendants are threatening them from using the said common pathway and having considered the pleading of the defendants that, they are interested to deny the user of the pathway to the plaintiffs by taking the plea that the pathway as shown in the partition deed had eroded with the tank, situates in plot no. 1473 and had got no existence and has been amalgamated with the bank of plot no. 1473, the court below held that from evidence of both the parties, it is clear that said pathway still exists which is kept open for all the co-sharers and in the circumstances, the court below held that the defendant/respondent have no manner of right to obstruct the plaintiffs in the use of the pathway as described in the schedule ‘kha’ and therefore the court below restrained the defendants/respondents from interfering or obstructing the plaintiffs joint user with the defendants of the pathway as described in the ‘kha’ schedule to the plaint. 8. However the court below refused to grant decree of partition in favour of the plaintiff in respect of the said item of properties mentioned in the schedule to the plaint, observing that all the co-sharers are enjoining the tank for bathing and for domestic purpose and it should not be partitioned. Furthermore court below observed that the partition of the two tanks would likely to destroy intrinsic value of the whole property and the beauty of the two tanks will be totally lost if they are to be divided by metes and bounds. Furthermore the aforesaid 872 sq.ft. of land lying in the extreme eastern portion of the northern bank is a pathway meant for coming to the northern ghat or coming to the north to south of the tank in plot no. 1477 and such pathway has been rightly kept in ejmali and it is not practicable rather impossible to effect partition of that small piece of land and the tanks which if partitioned, would create inconvenience to both the parties. 1477 and such pathway has been rightly kept in ejmali and it is not practicable rather impossible to effect partition of that small piece of land and the tanks which if partitioned, would create inconvenience to both the parties. 9. Being aggrieved by that Judgment, Mr. Gopal Chandra Ghosh learned counsel appearing on behalf of the appellants contended that the court below while rejecting plaintiffs prayer for passing preliminary decree for partition in respect for the schedule mentioned suit properties failed to take into consideration that (a) All the three co-sharers have separate allotments in all the four banks of the tanks (b) Each of the co-sharers has right to use 3 ft. wide passage meant for user of all the four banks of the tank for mutual convenience and access to the bank. Therefore if the said common area of 872sq.ft. is partitioned by meters and bounds neither party will suffer nor will face any inconvenience. (c) Courts below also failed to consider that the respondents/ defendants have denied the very existence of the said 872 sq.ft. ejmali land in their written statement, contending that defendant Tarapada constructed the ghat on the northern bank alone for his own use and they are not allowing plaintiffs to use the same though said space was kept joint for common user of the parties (d) Court below also failed to consider that if the plaintiffs are allotted extreme 1/3rd eastern portion of the said land in their share measuring about 290 sq.ft. and odd adjacent to their allotted portion on the northern portion of the eastern bank upon partition as prayed for and the residue portion if allotted upon the defendants having an area of 290sq.ft. each, neither party will have a cause to prejudice, nor there would be any inconvenience on their part for any practical purpose specially when all the parties have access to all the banks having right of user of 3 ft. passage. (e) In fact both the court’s below have committed mistake observing that though the said common land measuring 872 sq.ft is partible but it would create inconvenience of user of the parties if partitioned by metes and bounds, which according to appellant is perverse finding and not in consonance with the materials including evidence on record. (f) The court below was not justified in observing that the tank in Dag no. (f) The court below was not justified in observing that the tank in Dag no. 1477 having an area of 60 decimal, if partitioned will lose its intrinsic value, because if the said tank is partitioned by metes and bounds each of the parties will get an area of 20 decimal and if such area of the parties are allowed to be separated by concrete walls or otherwise it will not destroy the intrinsic value of the tank and all the parties having access to the watery portion of the tank from all sides and they will not suffer any inconvenience for user thereof. In support of such contention appellant relied upon judgment in the case of Nritya Gopal Samanta Vs. Pran Krishno Da & others reported in 57 CWN 439(447). (g) However the court below rightly decreed the suit in part granting injunction in favour of plaintiff restraining defendant/respondents from interfering or obstructing the plaintiff’s joint user with the defendants of the pathway as described in the ‘kha’ schedule to the plaint. 10. The Division Bench of this Court while admitting the present appeal, by its order dated 09.03.1999 have formulated following substantial questions of law:- (i) Whether the learned Courts below have erred in laws by dismissing the prayer for partition in respect of two tanks, one measuring 16 decimals and the other measuring 60 decimals by holding that those are not partible. (ii) Whether the learned Courts below have failed to understand the principle of law of partition which does not empower the court to keep a property joint inspite of prayer made for partition thereof by a co-sharer. 11. In reply to the question raised in the plaint that the three properties mentioned above which were kept as joint in the amicable partition deed are divisible or whether court can grant decree for partition on the basis of prayer made on behalf of one of the co-sharer for partitioning of said property, which were kept joint in the deed, the Trial Court made following observation “The evidence discloses that those tanks have been used for all the co-sharers for their domestic purposes including their cooking. If the partition takes place by meters and bounds in the manner as suggested by the ld. Lawyer for the plaintiffs, it will causes inconvenience to the co-sharers to make use of the tank for the domestic purpose. If the partition takes place by meters and bounds in the manner as suggested by the ld. Lawyer for the plaintiffs, it will causes inconvenience to the co-sharers to make use of the tank for the domestic purpose. The settlement of enjoyment by one year after another by each co-sharer will also cause inconvenience and dispute in the matter of enjoyment of the water of the tank by the co-sharers for their domestic purpose. For that reason those tanks were kept in ejmali in the original deed of partition, marked ext.1. For that reason also there was ejmali pathway measuring 872sq.ft. for making use of the co-sharers. Although each cosharers has his share in the partition by metes and bounds, the same may be practically impossible if were focus our attention to the utility and convenience of all the co-sharers towards the enjoyment of the tank including the ejmali land for the use of common passage of all the cosharers. With regards to the pathway situated in the western portion of land at plot no. 667/4027, the defendants have stated that they have no right to block the pathway. Even partition deed itself clearly discloses that no party will block the same. So I do not find no reason to impose any restrain order in view of the facts and circumstances stated above.” 12. Though the Trial Court observed that making partition of the properties are practically impossible considering utility and convenience of all co-sharers towards enjoyment of tanks including common passage but he refused to grant injunction on an erroneous finding that the plaintiffs have not made any local investigation commission in respect of the suit property and that the suit pathway has not been blocked by the defendant as defendant claimed that they have no right to block the pathway and that partition deed discloses that no party will block the same, ignoring plaintiff’s cause of action of the suit, which discloses that defendants have threatened plaintiffs to disposes from the suit properties. 13. When the matter came up before the first appellate court on the basis of appeal preferred by the plaintiffs the appellate court made clear observation that it is immaterial in the present context as to who had constructed the eastern ghat of the suit tank or at whose expenses said ghat was constructed. 13. When the matter came up before the first appellate court on the basis of appeal preferred by the plaintiffs the appellate court made clear observation that it is immaterial in the present context as to who had constructed the eastern ghat of the suit tank or at whose expenses said ghat was constructed. Even if plaintiff’s claim is taken to be true that they have exclusively constructed the eastern ghat (eastern Bank) even then plaintiff cannot obstruct the defendant no.1 and 2 in enjoying the eastern bank and defendants also cannot obstruct the plaintiffs use of the middle portion of the northern bank pathway lying to the west of plot of 667/1027. In the partition deed it has been rightly kept in ejmali and it is the plaintiffs case that the defendants have threatened them with the user of the pathway, it appears from averment in the plaint that they are interested to deny the user of the pathway to the plaintiffs in as much as according to the evidence of the DW-1 the pathway as shown in the partition deed has been eroded with the tank over plot no. 1473 and is not in existence at present. The first appellate court observed that this is a clear mis-statement of fact because from the evidence of both the parties it is abundantly clear that the pathway still exists and it is an important pathway for all the co-sharers and without this pathway plaintiffs cannot move upwards and defendants cannot move downwards and without this pathway the plaintiffs cannot go to the panchayat road. Though in the amended written statement existence of the said pathway was denied but in the original written statement it has been admitted by the defendant that the pathway is in the west of plot no. 667/1027 and as such the first appellate court held that the said pathway should be continued to be used in ejmali and the defendant have no manner of right to obstruct plaintiffs in the use of the pathway as described in the ‘kha’ schedule to the plaint. Accordingly the court below have passed the injunction order in respect of the pathway described in the ‘kha’ schedule to the plaint. 14. Accordingly the court below have passed the injunction order in respect of the pathway described in the ‘kha’ schedule to the plaint. 14. Now as regards the question as to whether the said three properties which are being kept joint in the partition deed, are practically divisible and whether decree of partition can be granted on the basis of the prayer made on behalf of the plaintiffs, the court below concurred the view of the Trial court with the following observation: “therefore, keeping .02 decimal of land in ejmal was not without reason and if this.02 decimal of land is now sought to be partitioned, then one or other co-sharer may suffer in the matter of enjoyment of the northern ghat or of coming to the eastern bank of the tank and it is not understood as to what difficulty is there in keeping this small piece of land in ejmal. If judged from the stand point of balance of convenience and inconvenience then amount of inconvenience would be greater in cases this. .02 decimal of land is partitioned. Significantly, the pathway as described in schedule ‘B’ to the plaint is very near and just to the north of the small strip of land admeasuring .02 decimal lying in the extreme eastern portion of the northern bank of the tank. Therefore, having considered the nature of the land and its location, I am of the judgment that this is not fit for partition and prudence was applied in keeping this land in ijmal in the partition deed by the co-sharers themselves. As to the banks of the tank no. 1472 is concerned it is to be aid that the banks of this tank are purely impartible because western bank of tank in 1473 is virtually the disputed pathway as described in schedule’ ‘kha’ of the plaint. The southern bank of the tank 1473 is practically the northern bank of the tank in 1477 and this bank is comprised in plot no. 1476. Again the northern bank of tank of 1473 has virtually merged with the panchayat road and there is only the western bank of plot no. 1473 which remains unblocked as yet and it is futile to get this bank partitioned. Now, so far a the two banks are concerned, they have been kept ejmal in the partition deed obviously for common enjoyment. 1473 which remains unblocked as yet and it is futile to get this bank partitioned. Now, so far a the two banks are concerned, they have been kept ejmal in the partition deed obviously for common enjoyment. It is in evidence that all co-sharers use both the banks particularly the tank in plot no. 1477 which is bigger than the tank ion 1473. The advocate for the respondents, rightly submits that where all the cosharers enjoyed the tank for bathing and using for domestic purpose it should not be partitioned. Now, to seem for partition of the two tanks is destroyed its intrinsic value of the whole property and evidently the beauty of the two tanks will be totally lost if they are to be divided by metes and bounds to satisfy the co-sharers. The Ld. Advocate for the appellants argues that the co-shares may enjoy in cyclic year or in turn. This cannot be the pragmatic approach to the problem because the tanks are situated just besides the homestead both the parties and it is utterly incomprehensible as to how are on or other co-sharers could be kept out of the use of the tanks for the domestic purpose or for purpose of bathing for say one or two years just to allow the another co-sharers to use the tank for the same purpose exclusively for that one or two years. In the partition deed, there is agreement between the parties to keep the tanks and the said .02 decimal of land in ejmal for the purpose of common enjoyment and it is not difficult to understand that 872 sq.ft. of land lying in the extreme eastern portion of the northern bank is a pathway meant for coming to the northern ghat or coming to the north to south of the tank in 1477 and it is impossible we may impracticable to effect partition of that small piece of and the tanks.” 15. Now the aforesaid concurrent findings of both courts below, that partition of the suit properties neither practicable nor possible while answering the question as to whether the aforesaid properties mentioned in the schedule to the plaint is divisible or plaintiffs alone can seek partition in respect of said joint properties, against the defendants or not, are being answered on the basis of elaborate discussion of both oral and documentary evidence available in the record. Needless to reiterate that the scope of the High Court in Second Appeal has been limited by effecting amendment in section 100 of the code of Civil Procedure. Now the jurisdiction of the High court is only confined to entertain such appeal as involves a question of law. The existence of substantial question of law is sine qua non for the exercise of jurisdiction by the High Court. Even assuming that another view is possible by allotting to the plaintiffs extreme 1/3rd eastern portion of the said land in their share measuring approximately 290 sq.ft. adjacent to their portion on the northern portion of the eastern bank upon partition, as prayed for and the residue portion can be allotted to the defendants having an area of approximately 290 and odd sq. ft. each on a re appreciation of the same evidence, that should not have been done by the High Court in Second Appeal, as it cannot be said that the view taken by the First Appellate Court as well as the Trial Court on this issue was based on no material. In fact judgment of lower appellate court is open to challenge in Second Appeal in a case where High Court thinks that the evidence accepted by the lower appellate Court could not have been reasonably accepted by the First Appellate Court. In the present context on the basis of the evidence adduced by the parties the findings of the courts below that if the said suit properties which are being kept joint in the partition deed be partitioned, it will create difficulty for both the parties as it would keep co sharers out of the use of the tanks for the domestic purpose and also for enjoyment of the properties allotted to their respective share and if balance of convenience and inconvenience is considered the inconvenience should be greater if the said properties are partitioned, are based on evidence and sound reasoning. 16. It is well settled that the substantial question of law must not be confused with substantial question of fact. Second Appeal can be entertained on a substantial question of law only and High Court has no power to enlarge the scope of section 100(5) of the Code. 16. It is well settled that the substantial question of law must not be confused with substantial question of fact. Second Appeal can be entertained on a substantial question of law only and High Court has no power to enlarge the scope of section 100(5) of the Code. Here there is no scope to say that the aforesaid finding of the Trial Court or the First Appellate Court is based on conjecture or surmise and on the contrary based on sufficiency and adequacy of evidence to support the finding of fact. The Court below is the last court for finding of fact in the matter of decision on fact being court of fact and can hardly be attacked in Second Appeal unless it is shown as perverse. Question of appreciation and miss appreciation of evidence is generally question of fact and it can hardly come under the realm of substantial question of law. In the present context partition deed was executed on mutual consent by the parties. There is concurrent findings of the court below on the basis of evidence adduced by the parties that the property in question is practically not partible and if partition is effected to such properties parties will face inconvenience in possession of their respective portion. Such findings are based on through appraisal and consideration of oral and documentary evidence on record. No legal infirmity has been pointed out and as such I am constrained to conclude that the present Second Appeal is liable to be dismissed. 17. In view above S.A. 262 of 1999 is dismissed. The judgment and decree passed by the court below in T.A. No. 25 of 1998 is hereby affirmed. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.