JAIN, J. - (1.) THIS second appeal under Section 100 of the Code of Civil Procedure has been filed by the defendant- appellants against the judgment and decree dated 21. 11. 1987 passed by the District Judge, Bharatpur, in Civil Appeal No. 27/1983, whereby the appeal of the plaintiff was allowed and the judgment and decree dated 1. 3. 1993 of the Additional Munsif & Judicial Magistrate No. 1, Bharatpur, in Civil Suit No. 87/1977, was set aside, whereby the trial Court dismissed the suit of the plaintiff.
(2.) THE first appellate court decreed the suit of the plaintiff- respondent for possession in respect of two basis land of khasra No. 333. While admitting the second appeal on 24. 7. 1989, this Court formulated following substantial questions of law:- " (1) Whether on the basis of the evidence adduced in the case, the plaintiff respondent has at all been able to establish that the defendant had on June 12, 1973 trespassed over land measuring 2 biswa out of land measuring 6 biswas of khasra No. 1300/1 (300) as detailed and described in Para 1 of the plaint? (2) Whether the suit was exclusively triable by Revenue Court and the Civil Court had no jurisdiction to try it. " I have heard learned counsel for both the parties at length and minutely scanned the impugned judgments as well as the record of both the courts below. Learned counsel for the defendant-appellants contended that the dispute 2 biswas land is not a part of khasra No. 333 belonging to plaintiff-respondent, and the same is part and partial of khasra No. 334 belonging to defendant-appellants. He contended that there are other `khatedars' of land bearing khasra No. 333 and it is quite possible that other persons would have trespassed over the land belonging to the plaintiff. He, therefore, contended that the finding of the learned first appellate court is liable to be set aside. The learned counsel for the defendant-appellants further contended that the nature of the land in dispute is agriculture land, therefore, the civil court had no jurisdiction to entertain, try and decide the present suit for possession in respect of agriculture land, therefore, the judgment passed by the learned first appellate Court is without jurisdiction and the same is liable to be set aside.
(3.) PER contra, learned counsel for the plaintiff-respondent contended that the question No. 1 formulated by this Court in the present case, as mentioned above, relates to question of fact. The learned first appellate Court has recorded a specific finding that the disputed piece of land measuring 2 biswas, out of khasra No. 333, has been trespassed by the defendants and this being a question of fact, is not open to be challenged in second appeal. The entire argument of the learned counsel for the defendant- appellants is based on appreciation of evidence, which is not permissible in second appeal under Section 100 of the Civil Procedure Code. Learned counsel for the plaintiff-respondent further contended that the disputed piece of land is situated in populated area and as per the finding of the learned first appellate Court it is a `abadi' land, therefore, the civil court had jurisdiction to entertain, try and decide the present suit. It has further been contended that the said point relating to jurisdiction of civil court was not challenged by the defendants before the first appellate Court, which is clear from the judgment of the first appellate court itself and, in these circumstances, the said question was given-up by the defendants and, thus, the defendants cannot be allowed to argue the said question before this court. In support of the contention, the learned counsel for the plaintiff-respondent relied upon the decision of the Hon'ble Supreme Court in the case of Madan Mohan Kotal vs. Gobinda Kotal & Another (2002) 9 SCC 457, and Gopal vs. Durga Prasad & Others 1973 WLN 967. I have considered the submissions of learned counsel for both the parties and minutely scanned the finding of first appellate Court as well as case law referred during the course of arguments. ;