JUDGMENT
P.N. Khanna, J.
(1) The only question involved in this second appeal is about the exetent of the Jurisdiction of this Court to interfere at this stage, under Section 100 of the Code of Civil Procedure, Mr. S, Malhotra, learned counsel for the appellants, submits that the judgment of the lower Appellate Court is not based on any evidence and therefore, this Court can interfere. I am, however, not inclined to agree with him.
(2) The limits of the jurisdiction of this Court to interfere in second appeal are prescribed in Section 100 of the Code of Civil Procedure which reads as under :- 100.(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds namely. (a) the decision being contrary to law or to some usage having the force of law. (b) the decision having failed to determine some material Issues of law or usage having the force of laws, (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon
For the purpose of clause (e) of section 100 above the defect or error must be substantial and further it should be such as may possibly have produced error or defect in the decision of the case upon the merits. is clause has come up for consideration before the Courts in several cases. In V. Ramachandera Ayyar v. Ramalingam Chattiarl, the Supreme Court observed that :- “THEerror or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure ; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if In dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result substantially, of this wrong approach, that may be regarded as a defect in procedure ; if in dealing with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Court’s decision without the consideration of such an issue, that may be regarded as an error or defect in procedure ; if the lower appellate Court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court, bowever erroneous the said conclusions may appear to be to the High Court, because as the Privy Council has observed, however gross or inexcusable the error may seem to be, there is no jurisaction under S 100 to correct that error.” Commenting on certain observations of the Privy Council in Rani Hemanta Kumari Debi v. Brajenara Kishore Roy Chowdhry, the Supreme Court further observed that :– “this observation should not be literally construed to mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that the said observation means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and that really amounts to saving that there is no evidence at all………………………….the High Court can interfere with the conclusion of fact recorded by the lower appellate Court if the said conclusion is not supported by any evidence,”
(3) Mr, Malhotra referred to an unreported judgment of the Supreme Court in Mehanga Singh v. Sunder Chand, Civil Civil Appeal No. 360 of 1965, decided on Februry 20, 1969, where it was held that the High Court was entitled to reverse the finding of fact if the District Judge had misread the documentary evidence bearing on the title of the plaintiff There is, however no documant in this case, bearing on the title of the parties.
(4) The plaintiff-appellants in the present case filed a suit fora permanent mandatary injunction against the respondents directing them to remove tl e construction in dispute which was said to have caused obstruction in the passage claimed to have been in existence and under their use since long as a matter of right The respondents contested this claim and asserted that the site belonged to them over which the plaintiff appellants had no right of passage. A Local Commissioner was appointed by the trial Court who reported that there did exist the passage in dispute at the site which had been encroached upon by the respondents. The said report was, however, objected to by the respondents as incorrect.
(5) The question requiring determination was; whether the disputed passage bearing Khasra No. 91, which connects a public thoroughfare coming from the South bearing Khasra No 90 with another public thorogh fare coming from the North bearing Khasra No. 83 (both described in revenue papers as blind alleys), was a public thoroughfare ? The revenue records did not show any path in Khasra No. 91.
(6) The decision of the learned lower appellate Court in disbeliving the testimony of the appellants’ witnesses, on the ground that none of them belonged to the said Ttka is merely an appreciation of evidence and cannot be said to be a finding contarary to law or to some usage having the force of )aw. The lower appellate Court was entitled to have its own appreciation, which is not a defect or error in procedure For, even if, this appreciation of the evidence is erroneous and the finding of fact recorded in consequence, is erroneous that does not amount to an error in procedure and this Court world not interfere with that finding.
(7) For showing that the decision was based on no evidence, Mr. Malhotra refered to the testimony of the two witnesses produced by the appellants and the report of the Local Commissioner which according to him, established that the disputed path in Khasra No.91 was a public throughtfare. The finding to the contrary was, therefore, without any evidence or the result of a misreading of the evidence. Both DW-I and DW-2 had stated that the thoroughfare bearing Khasla No. 90 terminated at the Southern end of the length of the so called passage said to be obstructed by the appellants’ construction; and the public throughfare bearing Khasra No 83 terminated nearabout the Northern end of the length of said so-called passage The disputed construction occupied about 18 feed of length of the said so-called passage from North to South, They also stated that the disputed contruction between the said two ends was raised only after the filing of the suit. This according to the learned counsel proved that thoroughfare Khasra No. 90 and thoroughfare Khasra No. 83 moved up to the two points in between which, lay the open space on which the disputed construction has now been raised. He, therefore, submitted that the lower appellate Court should have come to the conclusion that about eighteen feet length of the land in between the two thoroughfares being open space, must have been used as a passage for going from one thoroughfare to the other. But no one has stated that this length of land was ever used as a thoroughfare nor is there any other evidence to support such a conclusions. On the other hand these witnesses have also stated that at the site of the disputed construction there used to be a ‘ Tapra” (hut) previously and this length of land was not a thoroughfare. Regarding the report of the Local Commissioner, Its findings remain unsupported by other evidence and, therefore, could not be of any assistance to the Court below The learned lower Appellate Court, therefore, cannot be said to have based his judgment on no evidence when it came to the conclusion that the land on which the respondents have raised their construction was never a thoroughfare.
(8) In these circumstances the conclusions recorded by the lower Appellate Court cannot be said to rest on no evidence; nor can this Court interfere in the appreciation of evidence made by the learned lower Appellate Court. In the result this appeal has no merit and the same is dismissed, but in the special circumstances of this case there will be no order as to costs.