Hon’ble Ajit Kumar, J.—The present second appeal arises out of the judgments and decrees passed by the Courts below in a suit of mandatory injunction and restoration of possession. The instant second appeal was admitted by this Court on 18.1.1977, before coming into force of the amendment Act No. 104 of 1976 amending Section 100 of the Code of Civil Procedure (w.e.f. 1.2.1977) limiting the jurisdiction of the High Court to interfere in the second appeal to only those cases that involved substantial question of law.

2. While interpreting Section 100 as stood prior to the amending Act of 1976 Privy Council in the Case of Sheikh Rahmat Ilahi v. Mohammad Hayat Khan and others, AIR 1943 All PC 208, has held:

The failure of the Courts below to investigate and come to a finding upon this basic question of fact constituted in their Lordships’ view, a serious error in law against which the plaintiff was entitled to relief upon a second appeal. The material words of Section 100, Civil P.C., are as follows:

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: the decision being contrary to law.

And in their Lordships’ view those words directly cover the present case. Their Lordships’ had occasion to point out in 46 I.A. 140 that where the Courts below had misconceived the real question of fact they had to try there was an error of law on which a second appeal lay: and their Lordships can see no difference in principle between a failure to appreciate and determine the real question of fact to be tried and a failure to appreciate and determine a question of fact which vitially affects the issue stated in the case. In either case the failure is a failure in the duty imposed by law upon the Court and the question whether there has been such a failure must in their Lordships’ opinion be a question of law. Their Lordships would add that if, as was the duty of the High Court, that Court had clearly specified the grounds upon which they held the second appeal to be competent, not only would their Lordships’ task have been facilitated, but the expense and delay occasioned by the appeal to His majesty in Council might very possibly have been saved.

3. Though there is no difficulty in deciding the appeal under Section 100 Civil P.C. as it stood prior to Amending Act, 1976, the counsels appearing for the parties agreed that Court may form substantial question of law also and hear and decide the same as well. Following two substantial questions of law arise for consideration of this Court:

(A) Whether the Court below manifestly erred in interpreting and construing the resolution of Gaon Sabha for allotment proceedings dated 1.2.1969 as of Land Management Committee for allotment of abadi site and hence finding of allotment of abadi site in respect of land in question in favour of the defendants is perverse?

(B) Whether the Court below erred in law in holding that land appurtinant to cattle shed will not be Sahen of the plaintiff and whether this finding is also vitiated for misreading of evidence?

4. Heard learned counsels for the parties and perused the original records.

5. The suit for mandatory injunction, permanent prohibitory injunction and restoration of possession instituted by the present plaintiff was decreed by the trail Court vide judgment dated 15.3.1973 whereas in civil appeal filed by the defendants-respondents, the judgment and decree of the trial Court was reversed vide judgment dated 17.11.1976 and the suit of the plaintiff-appellants was dismissed with cost throughout.

6. The plaint case of the plaintiff is that there were two Saars (cattle sheds) which were shown in the plaint map as ABCD and land appurtinant to the same was marked as ADHG and it was used as a Sahen (appurtinant land) from a very long time. However, the defendants who had never been in possession forcefully removed the Charni (cattle trough) and Khunta (the