IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.107 of 2011 Date: 05.09.2011 Between: Parasa Soma Raju and another .....Appellants AND Songa Sambasiva Rao ....Respondent THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.107 of 2011 JUDGMENT: 1. This appeal is directed against the judgment and decree dated 04.10.2010, passed by the II Additional District Judge, West Godavari at Eluru in A.S.No.61 of 2008, whereunder and whereby the appellate court while dismissing the appeal has confirmed the judgment and decree dated 23.01.2008 in O.S.No.145 of 2004, passed by the Junior Civil Judge, Chintalapudi, West Godavari District. 2. The parties are hereinafter referred to as they are arrayed in the suit in the trial court. 3. The brief facts of the appeal that are necessary for disposal of the present appeal are as follows: The plaintiff’s father was absolute owner of Ac.0.09 cents and Ac.0.01 cent situated in Sy.No.325/11 and 325/10 respectively. On 12.3.1993, his father bequeathed the same in favour of his mother under cover of a Will. Subsequently after death of his father, his mother became absolute owner of the same. On 7.4.1999, his mother settled the same in his favour under cover of a registered settlement deed. Even since, he has been in possession and enjoyment of Ac.0.10 cents. He got constructed a tiled house in the site. He is working in R.T.C at various places, taking advantage of his absence the defendants encroached Ac.0-01½ cents and Ac.0-01 cent respectively on Eastern side of his property out of Ac.0.10 cents. The defendants have no manner of right to do so. In total, they occupied Ac.0-02 ½ cents on the Eastern side of his property. They constructed a colony house and thatched house respectively in the encroached site. He got issued notice to the defendants for their eviction from the property belonging to him, and in turn they gave reply with false allegations, as such he was constrained to file the suit for recovery of possession and mesne profits of the suit property. 4. The first defendant filed written statement denying the averments made in the plaint and stating that father of the first defendant by name Sattiyya purchased Ac.0-01 ½ cents of land in R.S.No.325/11 (first item of plaint schedule) from Songa Pothaiah on 23.3.1960 and that father of the 2nd defendant by name Mukkaiah also purchased Ac.0-01 cent in R.S.No.325/11 (second item of plaint schedule) on the same day from the same vendor and, both obtained sale agreement on 22.3.1960. They also obtained possession of the respective purchased lands from their vendor, and has been enjoying the same. After the death of their fathers, the defendants 1 and 2 have been enjoying the same till date without any objection from any corner. The first defendant got constructed a thatched house in his site. 2nd defendant got constructed a colony house in his site. They have been enjoying the possession of the plaint schedule property and they have been paying house taxes and the plaintiff had no right over the plaint schedule property and so, they sought for dismissal of the suit. 5. Basing on the pleadings the following issues were framed for trial: 1. Whether the plaintiff is entitled for eviction of defendants and vacant possession of the plaint schedule land from the defendants? 2. Whether the plaintiff is entitled for future mesne profits from the defendants? 3. To what relief? 6. During course of trial, P.Ws.1 and 2 were examined and Exs.A.1 to A.6 were marked, on behalf of plaintiff, and D.Ws.1 to 5 were examined and Exs.B.1 to B.3 were marked on behalf of defendants. 7. The trial court after considering the entire evidence on record, came to the conclusion that the plaintiffs have got right, title and interest over the suit schedule property by virtue of the settlement deed Ex.A.5 and so the defendants are liable to vacate the suit schedule property and accordingly decreed the suit. Challenging the same, an appeal in A.S.No.61 of 2008 was filed and the same was dismissed confirming the judgment and decree passed by the trial court. Challenging the same the Second Appeal has been preferred by the defendants. 8. The contention of the learned counsel for the appellants is that the Will which is a compulsorily attestable document under which the mother of the plaintiff executed a settlement deed in favour of the plaintiff, has not been proved and the Will is eschewed from consideration, the plaintiff has no title to the property, and both the courts below did not consider this aspect in right perspective and hence that is a substantial question of law involved in the second appeal and prays to admit the second appeal. 9. On the other hand, the learned counsel for the respondent contended that the trial court as well as the appellate court gave a concurrent findings and that the findings are based on proper appreciation of evidence on record, and that since the settlement deed is filed which was not specifically denied or disputed, the plaintiff’s claim was rightly granted by the trial court as well as the appellate court and therefore there are no grounds to interfere with the same and prays to dismiss the appeal. 10. There cannot be any dispute that in view of the amendment to Section 100 CPC, admission of a Second Appeal is not automatic or routine manner. The expression “substantial question of law” has not been defined in the Code. But, it must mean that it should directly and substantially affect the rights of the parties. In other words, it can be said that the question must be debatable, arguable and not free from doubt. Recording of a finding without any evidence, non-consideration of relevant or admissible evidence, taking into consideration inadmissible evidence, misconstruction of evidence, perverse findings etc., are some of illustrations, whereunder the second appeal can be admitted. Even question of law also does not give a right to the party to file a second appeal. A finding can be said to be perverse, if it is not based on the evidence on record or inadmissible evidence has been taken into consideration or admissible evidence has been over looked by the trial court or misreading a statutory provision are some of the illustrations which can be said to be a substantial question of law. 11. The entire argument of the learned counsel for the appellants is that Ex.A.1 Will has not been proved whereunder the plaintiff is claiming the right, title and interest over the suit schedule property and so, a declaration sought for cannot be granted and that the recitals of the settlement deed cannot be relied upon as the ‘will’ has not been proved. No doubt, when a document required to be attested by two witnesses, one of the witnesses has to be examined under Section 68 of the Indian Evidence Act, 1872. The Section lays down that documents required by law to be attested shall not be used as evidence unless at least one attesting witness is called to prove its execution, if he is alive and subject to the process of the court. As attesting witness is not examined, Ex.A.4 can not be looked into. Under Section 63(c ) of the Indian Succession Act, a will is required to be attested by two witnesses. Therefore, law requires that Will has to be attested by two witnesses. Coming to the aspect of proving of a Will, at least one of the two attesting witnesses has to be examined. No doubt, though the Will is marked, none of the witnesses is examined in the trial court. It is the main contention of learned counsel for appellant that as the Will has not been proved, the settlement deed cannot be acted upon because, the plaintiff is claiming right through a settlement deed by virtue of the property got by his mother through the Will. 12. It is a specific case of the plaintiff that on 7.4.1989 her mother settled the schedule property in his favour under a registered settlement deed and since then the plaintiff has been in possession and enjoyment of the same. The averment made in the plaint with regard to devolving the property on the plaintiff under a settlement deed dated 7.4.1999 remained un un-challenged. Similarly, the statement of P.W.1 would clearly go to show that he got the property under settlement deed (Ex.A.5) the statement has not been specifically denied or disputed in the cross- examination contending that the plaintiff has no title to the property or that the settlement deed dated 7.4.1989 does not confer title on plaintiff. P.W.1 has come to the witness box and says that he got the property under Ex.A.5 Will. Ex.A.5 settlement deed has not been specifically denied or disputed. Once a fact has been testified by a witness and the same is not disputed or denied in the cross-examination, it can be inferred such fact is admitted, and such statement can be taken on substantive evidence. Therefore an omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination would lead to the inference that the evidence is accepted, subject of course to its being assailed as inherently incredible or palpably untrue. In other words, whenever a statement of fact made by a witness is not challenged in cross-examination, it has to be concluded that the fact in question is not disputed. The defendant has not availed himself of the opportunity to put his essential and material in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. Therefore, from the evidence of P.W.1 and the recitals in Ex.A.5 which have not been denied or disputed, the plaintiff has got title to the property. 13. In so far as the case of the defendants is concerned, they are relying upon Ex.B.1 which is an agreement of sale which does not confer any title to the defendants. Admittedly in pursuance of Ex.B.1, no regular sale deed is obtained by the father of the defendant. Similarly, Exs.B.2 and B.3, which are certificates issued by the Village Secretary do not confer any title. The contentions of the defendants that they have been possession and enjoyment since long time is not evidenced by any documents. Therefore, once they are found not in possession of the property and having no title, it can be said that the defendants are trespassers and they are liable for eviction. Therefore, both the courts below have come to a right conclusion. There are no grounds in the appeal to interfere with the concurrent findings of both the courts below. There is no question of law, much less substantial question of law, involved in the second appeal, so as to admit the same. 14. The learned counsel for the appellants has relied upon a decision reported in Ram Das vs. Salim Ahmed and another[1] wherein it was held: “It, however, appears to us that although the High Court indicated in the impugned judgment that the defendant’s claim of easement right and also the claim of title by way of adverse possession could not be accepted, such weakness in the defendant’s title to the suit property cannot establish the plaintiff’s title.” In the above judgment, the title of the property of the plaintiff has been specifically denied by the defendants therein. But, in this case, there is no such special denial. Hence the above decision is not applicable to the facts of the present case. 15. The learned counsel for the respondent has relied upon a decision reported in Madhukar D. Shende vs. Tarabai Aba Shedage[2] wherein it was held: “The weighty factor that the factum of execution of Will by Bhagubai was being denied by a rank trespasser without raising any specific pleadings and the fact that no relation of Bhagubai has chosen to lay a challenge to the Will, have been simply over looked. In our opinion, the High Court ought not to have sustained such a a perverse finding which would result in the property of a rightful owner being lost to a trespasser.” Even the above decision has no application to the present case on hand, because the suit is not solely based upon the Will said to have been executed by the testator in favour of the plaintiff. The plaintiff is claiming right, title and interest over the suit schedule property by virtue of Ex.A.5 settlement deed which is not in dispute. 16. Accordingly, the second appeal is dismissed at the stage of admission. There shall be no order as to costs. ______________ K.C.BHANU,J Date: 05.09.2011. Gk THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.107 of 2011 Date: 05.09.2011. Gk. [1] (1998) 9 Supreme Court Cases 719 [2] AIR 2002 Supreme Court 637