ORDER : 1. By way of the present appeal, the appellant has prayed to quash and set aside the impugned judgment and decree passed by learned 2nd Additional District Judge, Bhavnagar in Regular Civil Appeal No.87 of 2007 dated 03.11.2021 and further prayed to quash and set aside the judgment and decree passed by the learned 4th Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.421 of 1990 dated 29.09.2007. 2. Brief facts of the case are as under: 2.1 The plaintiff is owner, occupier and possessor of cabin situated at Bhavnagar- Rajkot Road, 25 Ft. away from Corner road of RTO Office, Bhavnagar which are having wheels and sheets. That the plaintiff is carrying out his business of selling pan, bidi etc, since last 8 to 10 years in the said lari and thereby maintaining his family. That due to the business of the plaintiff, the same is not obstructer either to traffic or any other. That the plaintiff had carried out proceedings for regularizing the said cabin - which is in progress and also applied for electric connection and Bhavnagar Mahanagarpalika had issued certificate to that effect dated 17.05.1987. 2.2 The proceedings came to be initiated for removal of the cabins, however his cabin was not removed since it was legal. That the plaintiff has right to carry out business under Articles 14, 16, 19, 21 and 22 of the Constitution of India and the defendant cannot obstruct in it. Not only that, even if the cabin, lari etc. are in illegal possession then also, it cannot be removed without prior notice/affording opportunity of being heard. Inspite of that, the defendant is trying to dispossess the plaintiff by removing his cabin from the disputed place and intend to give to other. Therefore, the suit has been filed to restrain the defendant, not to dispossess the plaintiff from doing business in the disputed premises in his four wheel cabin. 3. The appellant has framed the suggested substantial questions of law in the memo of the appeal, which are as under: “1. Whether the Ld. Trial Court could have effectively decided the question of title in a suit for permanent injunction. 2. Whether the Ld. Trial Court could have come to a conclusion/finding contrary to the cross-examination of a witness. 3. Whether the Ld. Trial Court is justified in ignoring the relevant evidence produced by the Appellant/Plaintiff. 4. Whether the Ld. Trial Court could have effectively decided the question of title in a suit for permanent injunction. 2. Whether the Ld. Trial Court could have come to a conclusion/finding contrary to the cross-examination of a witness. 3. Whether the Ld. Trial Court is justified in ignoring the relevant evidence produced by the Appellant/Plaintiff. 4. Whether the Ld. Appellate Court was justified in holding that there was no cause of action to file the suit at the appellate stage when no such finding/issue was framed by the Ld. Trial Court. 5. Whether the Ld. Appellate Court was justified in holding that there was no cause of action merely on apprehension ? 6. Whether the Ld. Trial Court can determine the question relating to cabin without having determined the question of title of the suit property which was not in question in the said suit.” 4. Learned advocate Mr. Siddhant K. Gujarathi appearing for Nanavati Associates for the appellant submitted that learned Appellate Court has failed to appreciate the fact that the appellant is carrying out his business for 8 to 10 years from Cabin (Lari) on the disputed land, despite several documentary evidence placed before the Court and the appellant has successfully proved that he is in the business of selling pan, bidis etc. He has further submitted that both the Courts below have failed to consider the relevant evidence on record including the report of the Court Commissioner and it is pertinent to note that there is no evidence with regard to obstruction of traffic. He has further submitted that both the Courts have erred in holding that the respondent No.1 has the right to demolish the cabin of the appellant and that the impugned judgment and order passed by the learned Appellate Court is erroneous, arbitrary, unjust and improper and it is against the facts and evidence on record. He has referred to the judgment of the Hon’ble Apex Court rendered in the case of Mohd. Yunus vs. Gurubux Singh reported in 1995 Supp (1) SCC 418 and lastly, prayed to allow the present appeal. 5. Having heard learned advocate Mr. Siddhant K. Gujarathi for Nanavati Associates for the appellant, at the stage of admission, in detail. Perused the material available on record and the judgments passed by both the Courts below. 6. Yunus vs. Gurubux Singh reported in 1995 Supp (1) SCC 418 and lastly, prayed to allow the present appeal. 5. Having heard learned advocate Mr. Siddhant K. Gujarathi for Nanavati Associates for the appellant, at the stage of admission, in detail. Perused the material available on record and the judgments passed by both the Courts below. 6. It transpires that both the Courts below have concurrently found on factual aspect against the present appellant who has filed the suit with a prayer before the trial Court that he is carrying out his business of selling Pan, Bidi etc. since the last eight to ten years in the Cabin (Lari) and it is also the case of the plaintiff that the Bhavnagar Municipal Corporation has issued certificate to that effect that he was doing business at the same place and also he is having electric connection and therefore, he has filed the suit that he should not be removed without giving opportunity of hearing or without issuing notice. The suit seems to be challenged by the defendants by filing written statement that plaintiff has no prima facie case and no right has accrued in favour of the plaintiff to put Cabin (Lari) at the premises of the defendant. The defendant- Corporation has neither permitted nor issued any certificate to the plaintiff. The place where such Cabin (Lari) has been installed by the plaintiff is to be given to one Shri Bambha Bhavubha as per the compromise arrived at before this High Court in Special Civil Application No.2089 of 1989. 6.1 It also transpires that the defendant has also contended that the plaintiff has put Cabin (Lari) in illegal manner at the disputed place and plaintiff has no right to obstruct the traffic and also create any obstruction in removing the encroachment and therefore, defendant prayed to dismiss the Suit. 7. The defendant No.2 has also filed written statement by contending that no prayer in the suit can be granted in favour of the plaintiff. The trial Court has framed issues for determination of the suit proceedings and thereafter, has given the detailed findings on each issue. 7. The defendant No.2 has also filed written statement by contending that no prayer in the suit can be granted in favour of the plaintiff. The trial Court has framed issues for determination of the suit proceedings and thereafter, has given the detailed findings on each issue. The trial Court has discussed the case in reasoning part, more particularly, para 8 onwards in the judgment of the trial Court by appreciating the evidence led during the course of the trial and more particularly, appreciated the deposition of witnesses of defendant No.1 at Exh.57 and defendant No.2 at Exh.64. The burden to prove the case of the plaintiff that he is doing business since last eight to ten years near the R.T.O. Office, Bhavnagar, is on the plaintiff and that issue is decided in affirmative by the trial Court. However, considering the other evidence, more particularly, the deposition of the witnesses of defendant No.1 at Exh.57 and defendant No.2 at Exh.64, Court has come to the conclusion that the plaintiff has failed to prove the issue No.2, that whether the defendant is illegally removing the Cabin (Lari) of the plaintiff. 7.1 It is also observed that under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, the corporation has authority to remove the encroachment and more particularly, which is located on the road side and therefore, the Court has come to the conclusion that the plaintiff has also failed to prove other issues as the burden is lying on the plaintiff and accordingly, the Court has dismissed the suit which was challenged by way of appeal which is the Regular Civil Appeal No.87 of 2007 before the lower Appellate Court, whereby, the lower Appellate Court has discussed all the issues in detail and re-appreciated the material, more particularly, in the judgment in paras 10 to 15, the Court has discussed every aspects of the matter in detail. It transpires that the Court has also discussed the aspect about cause of action by referring to the judgment of the Hon’ble Apex Court in the case of Swamy Atmanand vs. Sri Ramakrishna Tapovanam reported in (2005) 10 SCC 51 , para 24 thereof, which is reproduced, as under: “24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.” 7.2 The Court has also discussed the aspect about the clever drafting by the plaintiff by referring to the judgment of the Hon’ble Apex Court in the case of T. Arivandandam vs. T.V. Satyapal & Anr. reported in (1977) 4 SCC 467 , more particularly, para 5, which is reproduced as under: “5.… The learned Munsif must remember that if on a meaningful- not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ...” 7.3 The Court has also referred to the judgments of the Hon’ble Apex Court in the case of I.T.C. Ltd. vs. Debt Recovery Appellate Tribunal reported in (1998) 2 SCC 170, Madanuri Sir Ramachandra Murthy vs. Syed Jalal reported in (2017) 13 SCC 174 and State of Punjab vs. Gurdev Singh reported in (1991) 4 SCC 1 , by referring to the aspect about the right to sue and bogus litigation. Thereafter, the Court has come to the conclusion that the plaintiff has pleaded merely apprehension of removal of his cabin, no specific pleading has been narrated in the plaint. Thereafter, the Court has come to the conclusion that the plaintiff has pleaded merely apprehension of removal of his cabin, no specific pleading has been narrated in the plaint. Moreover, the disputed place mentioned in the plaint is different then the place where such Cabin (Lari) has actually been installed earlier and therefore, the Court has come to the conclusion that the trial Court has not committed any error and after re-appreciating the entire evidence, the Lower Appellate Court has also dismissed the appeal vide judgment and order dated 03.11.2021 passed in Regular Civil Appeal No.87 of 2007, which is sought to be challenged by way of filing the present second appeal in the month of August, 2022. The delay was condoned at the relevant point of time and thereafter, matter is argued on the above aspects by contending that both the Courts below have not appreciated the cross-examination of the witnesses and has failed to appreciate that there is existing reason for the plaintiff to file the suit. 8. Learned advocate for the appellant referred to the judgment of the Hon’ble Apex Court rendered in the case of Mohd. Yunus vs. Gurubux Singh reported in 1995 Supp (1) SCC 418, more particularly, para 2 of the judgment, which is reproduced as under: “2. It is argued before us that the High Court was not correct in interfering with the factual findings under Section 100 of CPC. In any event, there is oral evidence of the appellant-tenant who has categorically stated that the money-orders were sent to Gurubux Singh – the respondent herein. We are unable to agree with either of the submissions. Where there is a gross misappreciation of evidence which goes to the root of the matter, certainly the second appellate court can exercise its jurisdiction. Here the documents which are relied on by the appellant do not show that it was addressed to the respondent – Gurubux Singh. In order to establish the same, the postman should have been examined. The High Court is right in its conclusion. As regards the next contention, the mere ipse dixit, even without any cross- examination by this Court of the appellant, will not establish that the money-orders were addressed to the respondent. The evidence in this behalf is lacking. The appeal stands dismissed. The High Court is right in its conclusion. As regards the next contention, the mere ipse dixit, even without any cross- examination by this Court of the appellant, will not establish that the money-orders were addressed to the respondent. The evidence in this behalf is lacking. The appeal stands dismissed. No costs.” 8.1 Therefore, it is submitted by the learned advocate that when there is clear material available on record which indicates that it is gross misappreciation of the evidence by the concerned Court, the second Appellate Court may exercise its jurisdiction. 9. I have considered the submissions made at the bar. This Court cannot re-appreciate any evidence. The appeals are required to be entertained if any substantial question of law is arising for consideration under Section 100 of the Code of Civil Procedure (C.P.C.). In the present case, all the questions which are sought to be suggested by way of proposed substantial questions of law, are not actually substantial question of law. Both the Courts have considered material available on record and appreciated the evidence available on record in proper context, also, appreciated the averments made in the pleadings on proper context and in accordance with law. I found no illegality, perversity or infirmity in the findings of both the Courts below who have concurrently found against the plaintiff – appellant. 9.1 Therefore, it is fruitful to refer to the judgment in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others reported in 2023 SCC Online SC 875, paragraphs 7, 14 and 15 which are reproduced 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. & Mfg. Co. 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. 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.” 9.2 It is also fruitful to refer to the judgment of the Hon’ble Apex Court in the case of Nazir Mohamed vs J. Kamala reported in AIR 2020 SC 4321 , wherein, it is observed in paragraphs 56, 57 and 59 as under: “56.As held by the Privy Council in Peri v. Chrishold reported in (1907) AC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title. 57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. 59.When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.” 10. In view of the above, I found that there is no illegality in the impugned judgment and order passed by both the Courts below, which is otherwise found in accordance with law and therefore, no substantial questions of law are emerging for consideration of this Court in the present proceedings. Therefore, the present appeal is required to be dismissed at threshold. 11. Accordingly, the present appeal stands dismissed with no order as to costs. 12. In view of the dismissal of the main matter, connected civil application would not survive and the same stands disposed of accordingly.