Concurrent findings of fact by lower courts can be disturbed in a second appeal if they are vitiated by a misconception of law, material evidence has been ignored, there is no evidence, or there are errors of record or procedure.

JUDGMENT :

K.P. Mohapatra, J. - This is against the judgments dismissing his suit and recovery of possession.

2. The Appellant is the Plaintiff. His case is that the suit lands belonged to his father Brunda Rana. After the death of his father he inherited the same and has been in possession thereof. Respondent' No. 2 and late Ranjit are the sons of Munsi Rana, son of the brother of Brunda Rana. Respondent No. 1 is the minor son and Respondent No. 3 is the widow of late Ranjit. Late Ranjit was an Amin in the settlement department and taking advertise of his position he got the suit lands fraudulently recorded in the names of himself and his two other brothers, namely Respondent No. 2 and Anr. since deceased. Despite the fraudulent record in the settlement records, the Appellant continued to remain in possession of the same until disturbance was, cleated resulting in a proceeding u/s 144 Criminal Procedure Code which was decided against him. So it was necessary for him to institute the suit to establish his title and possession.

3. The Respondents who are Defendants stated that the suit lands are their ancestral property and have been recorded the Plaintiff's appeal for declaration of title as such in the latest record-of-rights. They have been in possession thereof although. The Appellant was never in possession of the same. Therefore, they have both title and possession and the Appellant has none.

4. The learned Subordinate Judge, Bhawanipatna, who tried the suit held that the Appellant failed to establish his title and possession in respect of the suit lands. On the other hand, the Respondents succeeded in proving their continuous possession in respect thereof at least since the year 1955-56. Therefore, he dismissed the suit. On appeal, the learned Additional District Judge, Bhawanipatna, upheld the aforesaid findings and dismissed the appeal.

5. Mr. N. C. Pati, the learned Counsel appearing for the Appellant, contended that the learned Courts below did not at all discuss the oral, as well as the documentary evidence and, therefore, arrived at a wrong conclusion with regard to title and possession in respect of the suit lands. Mr. S. Kr. Mohanty, learned Counsel appearing for the Respondents, on the other hand urged that according to the provisions of Section 100 of the Code of CPC ('Code' for short), the concurrent findings of facts arrived at by the learned Courts below cannot be disturbed.

6. The scope and ambit of Section 100 of the Code is no longer res integra. In Madan Lal Vs. Mst. Gopi and Another it was held that where both the learned Courts below ignored the weight of-preponderating circumstances and allowed their judgments to be -influenced by inconsequential matters, the High Court would be justified in re-appreciating the evidence and in coming to its own independent conclusions. In Debendra Bhoi v. Meghu Bhoi and Anr. 61 (1986) C.L.T. 299, a learned Judge of this Court relying upon several decisions held that a finding of fact arrived at by the first appellate Court based on assessment of materials is not available to be interfered with in a second appeal, however, erroneous such finding may be. But there are certain well recognised exceptions which are; when the finding of fact is vitiated by a misconception 'on a point of law; material evidence has been ignored in arriving at the finding; the finding is based on no evidence; and the finding is vitiated by errors of record or errors of procedure, the concurrent finding of fact can be disturbed. In a very recent decision reported in Budhwanti and Another Vs. Gulab Chand Prasad it was held that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions, then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected b