The main legal point established is that for a second appeal to be maintained, the finding must be shown to be perverse, and the findings must be in line with the evidence and applicable law.

JUDGMENT

R. M. Joshi, J. - This second appeal filed under Section 100 of Code of Civil Procedure takes exception to the judgment and order passed by District Judge, Aurangabad dated 21/11/2014 in Regular Civil Appeal No. 304/2012 and judgment and order dated 26/03/2012 passed by Civil Judge, (J.D.), Khultabad in Reg. Civil Suit No. 141/2009 whereby the suit of the plaintiff was dismissed and the said judgment of dismissal is upheld in the first appeal.

2. Appellants are legal heirs of original plaintiff Shaikh Allahwala Shaikh Papa who had filed R.C.S. No. 141/2009 against Sayyad Nigah Ali Sayyad Chirga Ali and Khushiya Begum gulam Mohammad (respondents/original defendants). The suit was for declaration that sale deed dated 04/05/2006 bearing registration No. 1682/2006 executed by defendant No.1 in favour of defendant No.2 is null and void. It is the contention of the plaintiff that he has inherited the suit house from his mother. It is alleged that defendant No.1 has no concern with the suit house and on the basis of forged and fabricated documents he got his name mutated in the municipal record to get the house divided being house No.41 (new). It is also alleged that on the basis of the said mutation he transferred the property in favour of defendant No.2.

3. Defendants filed written statement (Exhibit 11) wherein defendant No.1 claimed exclusive ownership and possession of the suit property. He states about purchase of suit house from plaintiff on 11/11/1974 under a sale deed. It is also claimed that on the basis of the said transaction his name was mutated in the record of right by the Municipal Council. Defendant No.2 claimed purchase of the suit house from defendant No.1 on the basis of registered sale deed dated 04/05/2006. Both claimed possession over the suit house one after another with effect from 11/11/1974 onwards.

4. Learned Trial Court dismissed the suit after recording evidence. The said judgment was carried in the First Appeal before learned District Judge in R.C.A. No. 304/2012 which also was dismissed. Against dismissal of the suit and first appeal, present appeal is preferred.

5. It is the contention of the appellants that the findings recorded by the Trial Court are not based on legal evidence. It is alleged that the Trial Court exhibited photo copy of sale deed and which amounts to illegality. Similarly, it is claimed that without framing issue of adverse possession and without giving opportunity for evidence to the appellants the said issue was decided by recording finding in that regard. Exception is also taken to the judgment of the first appellate Court about the reading the contents of the unregistered sale deed which is not admissible in evidence.

6. Learned counsel for the appellants state that exhibition of photo copy by learned Trial Court is contrary to the settled law and which amounts to perversity in the judgment. It is further argued that learned Trial Court as well as First Appellate Court committed serious error by recording the finding about adverse possession of defendant No.1 over the suit house in absence of any plea being raised by the said defendant and framing issue in this regard. In support of his contention reliance is placed on S. M. Karim V. Mst. Bibi Sakina, AIR 1964 SCC 1254.

7. Learned counsel for respondent No.2 opposed the said contentions by referring to the pleadings of the parties and evidence led before the Trial Court. According to him there is no objection raised by plaintiff while exhibiting the documents and hence now the said issue is not open for challenge in this appeal.

8. In view of Section 100 and 103 of CPC, the second appeal would lie only when substantial question of law is involved therein. Such appeal will lie on the ground that the decisions are contrary to law, failure on the part of the Court to determine material issue of law or substantial error or effect in procedure which have affected the decision of the case on merit. In catena of judgments the substant