Ajit Kumar, J. - (1.) The present second appeal arises out of the judgments and decrees passed by the courts below in a suit of mandatory injunction and restoration of possession. The instant second appeal was admitted by this Court on 18.1.1977, before coming into force of the amendment Act No. 104 of 1976 amending section 100 of the Code of Civil Procedure (w.e.f. 01.02.1977) limiting the jurisdiction of the High Court to interfere in the second appeal to only those cases that involved substantial question of law.
(2.) While interpreting Section 100 as stood prior to the amending Act of 1976 Privy Council in the Case of Sheikh Rahmat Ilahi v. Mohammad Hayat Khan and others, 1943 AIR(PC) 208 has held:
(3.) The failure of the Courts below to investigate and come to a finding upon this basic question of fact constituted in their Lordships' view, a serious error in law against which the plaintiff was entitled to relief upon a second appeal. The material words of S.100, Civil P.C., are as follows:;