JUDGMENT
Pradip Mohanty, J.
1. Defendant No. 1 is the appellant against a confirming judgment in a suit for permanent injunction filed by Respondent No. 1 restraining the defendants from entering into the suit land. The sole plaintiff-respondent No. 1 had filed the suit against the defendants, which was registered as T.S. No. 170 of 1980.
2. The case of the plaintiff-respondent No. 1 is that he is the Chela of Sri Radhakrishna Mahaprabhu. He is in the management of the institution. The suit property was purchased by him. Since the defendants created trouble, he filed the suit for permanent injunction. Defendants 2 to 9 (Respondents 2 to 9 herein) though did not contest and suit, supported the case of the defendant No. 1 by filing joint written statement. The present appellant-defendant No. 1, after appearing in the suit, filed a separate written statement denying the allegations of the plaintiff. She also denied to have taken the plaintiff as a Chela of the Math. According to her, the plaintiff had no right, title and interest in the suit property. It was further pleaded by defendant No. 1 that she brought the plaintiff to look after the math and its properties. Further case of the appellant-defendant No. 1 was that the consideration money for purchase of some of the properties was advanced by her, but the plaintiff-respondent No. 1 got the sale deed executed in his name, which the appellant-defendant No. 1 could not know as she is an illiterate lady. The suit land is in the cultivating possession of the appellant-defendant No. 1 through her servants.
3. In order to prove his case, the plaintiff examined as many as five witnesses and exhibited documents marked as Exts. 1 to 7. Defendant No. 1 also examined eight witnesses and exhibited documents marked as Exts. A to H.
4. In view of the pleadings of the parties, the Trial Court framed the following issues:
(1) Whether the plaintiff is the Chela of the suit Math and whether he has right, title or possession of the suit properties ?
(2) Whether the 1st defendant is the owner and in possession of the suit properties ?
(3) Whether the sale deed dt. 2.3.72 executed by defendant No. 1 in favour of the plaintiff is vitiated by fraud and misrepresentation ?
(4) Whether the plaintiff played fraud and secured other sale deeds in his favour instead of in the name of defendant No. 1 ?
(5) Whether there is no cause of action for the suit ?
(6) Whether the Court fee paid is correct ?
(7) To what relief ?
5. After considering the evidence and the documents, the Trial Court came to the finding that the plaintiff was the Chela of defendant No. 1; that the contents of Exts. 1 and 2 were not explained to defendant No. 1 and she had executed the same without knowing what she was executing; and that the plaintiff was not in possession over the suit land. The Trial Court came to the conclusion that the payment of consideration under Exts. 1 and 2 by the plaintiff cannot be believed. However, the Trial Court categorically held that the plaintiff has got title and possession over the lands purchased under Exts. 3 to 8 and decreed the suit in part with regard to item Nos. 8, 10, 11 and 12 of the Schedule “A” properties restraining the defendants from entering upon the same vide its judgment and decree dated 10.10.1982 and 11.11.1982 respectively. Being aggrieved by the said judgment and decree, the present appellant-defendant No. 1 preferred T.A. No. 36 of 1984 before the learned District Judge, Berhampur, which was transferred to the Court of Learned 2nd Addl. District Judge, Berhampur and renumbered as T.A. No. 36 of 1984 (T.A. No. 1 of 1983 GDC). Learned 2nd Addl. District Judge after hearing the counsel for the parties confirmed the findings of the Trial Court and dismissed the appeal vide his judgment and decree dated 17.4.1986 and 30.4.1986 respectively. As against the said judgment and decree, the appellant has preferred the present second appeal.
6. Mr. Balakrishna Rao appearing on behalf of Mr. P.V. Ramdas, Learned Counsel for the appellant submitted that defendant No. 1 was interested in the institution and its property. The relief of injunction against her cannot be sustained in law as per Section 41 of the Specific Relief Act. He further submitted that the matter is squarely covered by Section 41(g) and (i) of the Specific Relief Act inasmuch as there is no prayer by plaintiff-respondent No. 1 for declaration of his title. In support of his submission, he has placed reliance on the case of Majhiyari Mastsya Palan Evam Nauka Sanchalan Samiti v. The Commissioner, Allahabad Division , and Hemangini Devi v. Bijoy Singh Dudharia AIR 1924 Calcutta 438.
7. Mr. G. Mishra, on behalf of Mr. Padhi, Learned Counsel for respondent No. 1, submitted that since this Second appeal is directed against a confirming judgment which is based on concurrent findings of fact, it is liable to be dismissed. The power under Section 100, CPC is limited to the extent of correction of an error of law and decision on substantial questions of law. A second appeal will not lie merely on the ground of error on the question of fact. He further submitted that the contention of the appellant with regard to applicability of Section 41 of the Specific Relief Act has been raised before this Court for the first time, which is not permissible. In support of his contention, he has relied upon the case of Veerayee Ammal v. Seeni Ammal .
Perusal of the records, i.e., the judgments of the Courts below, the plaint, the0 written statements, documents exhibited by both parties and evidence shows that there are neither any pleadings nor any evidence of the appellant with regard to declaration of title. The question has been raised for the first time before this Court. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. Admittedly, the present Second Appeal is restricted to the suit land under Item Nos. 8, 10, 11 and 12 of Schedule “A” only. The Courts below have specifically observed that these lands were purchased by the plaintiff under sale deeds Exts. 3 to 8 and the plaintiff was in possession of the same. Therefore, the contention of the appellant with regard to declaration of title is not sustainable in law. The decision in Majhiari Matsya (supra) relied on by the appellant has no application.
8. Similarly, the provisions of Section 41(g)(i) of the Specific Relief Act are not applicable to the facts of the present case. There are neither any pleadings nor any evidence to support the contention of the appellant. Therefore, the decision in Hemangini Devi (supra) is distinguishable on the facts and circumstances. Moreover, a perusal of the questions formulated in the instant second appeal would clearly show that the same cannot in any way be termed to be questions of law, much less substantial questions of law. Those are questions of fact. Admittedly, the Issue Nos. 1 to 4 have been answered by the Trial Court and confirmed by the Appellate Court. The findings of the Trial Court are that the lands were purchased by the plaintiff-respondent No. 1 under Exts. 3 to 8 and the contents of Exts. 3 to 8 reveal that the lands were purchased in the name of the plaintiff, which shows that there is no applicability of Section 41 of the Specific Relief Act.
9. It is well settled by a series of decisions that High Court in second appeal cannot go into the question of fact. To the same effect is the decision in Veerayee Ammal (supra). The Hon’ble Apex Court in the said decision has specifically held that High Court in second appeal on appreciation of evidence cannot take a different view and assume jurisdiction by terming an issue as a substantial question of law.
10. Since no substantial question of law is involved in this second appeal and the factual aspects have been termed as substantial questions of law, and more specifically no pleadings have been found, there is no merit in this second appeal, which is accordingly dismissed.