- (1.) THE present appeal is a Second Appeal under Section 100 of Civil Procedure Code, filed by the original defendant, whereas the respondent is the original plaintiff.
(2.) BEFORE proceeding on the merits of the matter, it is necessary to examine the scope and ambit of the present appeal. The scope of section 100 of Civil Procedure Code and the powers of the High Court while exercising jurisdiction as a second appellate court are by now well defined and require no detailed discussion. The Supreme Court has, in the case of Ramaswamy Kalingaryar Vs. Mathayan Padayachi (AIR 1992 Supp (1) SCC page 712), and in the case of Parsini (dead) through Legal Representatives Vs. Atma Ram (AIR 1996 SC 1558), clearly reiterated the principle that the High Court cannot, while functioning as a second appellate court under section 100 CPC, upset the findings of fact recorded by the lower appellate court by reassessing the evidence, or eassess the qualitative value of such evidence on record, and thus cannot reverse such findings of fact. In fact, the High Court cannot interfere with such findings of fact even by examining or reappreciating the evidence from the aspect of"sufficiency of proof". The respondent-plaintiff had filed suit being Regular Civil Suit No. 337 of 1975 before the learned 2nd Joint Civil Judge (J.D.), Godhra for permanent injunction against the defendants for not fitting a flour mill and for removal of encroachment made by the defendants on the suit premises. The learned trial Judge vide judgement and decree dated 29.09.1978 decreed the suit so far as encroachment was concerned. 4.1 Being aggrieved by the order of the trial Court, the defendant preferred appeal being Regular Civil Appeal No. 75 of 1979 before the District Judge, Panchmahals at Godhra wherein the appeal was dismissed vide judgement and order dated 31.07.1981 by confirming the judgement and decree of the learned trial Court. Hence, this Second Appeal.
(3.) AT the time of admitting the matter, following substantial questions of law have arisen which are as under: 1. When the evidence of Gani Ismail Exh. 66 shows that the disputed land was in h is possession as a tenant upto 1949 and after he vacated the said premises Abdul Gani Sattar occupied the said premises whether the trial Court and the Appellate Court erred in holding that the defendants have made encroachment upon the suit land? 2. In view of the evidence on record, whether the Appellate Court and the Trial Court erred in not holding that defendants are tenants of the suit land? 3. Whether the trial Court and the Appellate Court erred in construing the pleadings of the parties? 4. In view of the fact that the plaint does not disclose the cause of action for relief as to removal of encroachment, whether the trial Court and the Appellate Court erred in holding that the suit cannot be dismissed on that count 5. In view of the fact that the plaintiff has not specifically stated in the plaint that when the defendant encroached upon the suit land, whether the Trial Court and the appellate Court erred in holding that the defendant encroached upon the suit land in the year 1975 and therefore, the question of limitation does not arise? 6.In view of the fact that the defendants have taken the contention as to limitation, whether the Trial Court erred in not framing issue as to limitation and whether the appellate Courterred in holding that the question of limitation does not arise. Learned advocate appearing on behalf of the appellant contended that the trial Court has committed error in not framing the issue regarding the encroachment which was made prior to 1954.;