M.P. Mehrotra, J.
1. This second appealarises out of a suit for permanent injunction which the plaintiff sought against the defendants seeking to restrain the latter from dispossessing the former from a portion in house no. Section 15/15-16 situated in Mohalla Ghausabad in Varanasi. The plaintiff, in brief, claimed to be a tenant of the said portion and the defendant No. 4, Smt. Kunti Devi, was alleged to be the landlady. The defendants, Nos. 1 and 2, namely, Raj Kumar-singh and Harish Chandra, are the sons of the defendant No. 4 and the defendant No. 3. Maniram, is the husband of defendant No. 4. The portion in dispute was claimed to be in the tenancy of the plaintiff at the rate of Rs. 10/- per month and he also claimed that he had been doing his Motor Car repair work in the said accommodation. The plaintiff's case was that even though he was a tenant at the said rate, the defendants never gave him a rent receipt even though as tenant he had been regularly paying the rent. It was alleged that the defendants were interested in enhancing the rent and as the plaintiff was not agreeable, therefore, the defendants were in a mood to evict the plaintiff from the accommodation in dispute even by force. In view of this threat, the plaintiff alleged that he was compelled to sue the defendants.
2. The defence was that the suit had been filed collusively by the plaintiff in collusion with his father. It was denied that the plaintiff was the tenant in the portion in dispute. It was claimed that there were various tenants in the house and these tenancies were regularly witnessed by rent notes executed by the tenants and the rents paid by the said tenants were against receipts granted by the landlady. It was further alleged that formerly the accommodation in dispute was tenanted by one Chhakauri who remained a tenant up to 1961 and after his death, the said accommodation was got released and thereafter it continued to be in the occupation of the defendants and they kept their repairing and denting workshop in the said accommodation. Thereafter, it was alleged that the brother of the plaintiff Prem Chand was a mechanic and, therefore, the defendants kept him in their workshop during the period from 1957 to 1965. In 1965 Prem Chand died and thereafter, the father of Prem Chand and the plaintiff were keptin the said workshop. There were several complaints against the plaintiff's father Munnu and, therefore, the defendants intended to remove him. When Munnu came to know of the said intention of the defendants, he got the instant suit filed by his son, the plaintiff.
3. On the said pleadings, the trial court framed 3 issues and they are as follows :--
1. Whether the plaintiff is defendants' tenant as alleged? If so its effect.
2. To what relief, if any, is the plaintiff entitled?
3. Whether the plaintiff is the owner of workshop as alleged?
4. On issue No. 1, the trial court held against the plaintiff and the plaintiff's claim that he was the tenant in the disputed accommodation was rejected. On issue No. 3, the trial court held that the plaintiff had succeeded in proving the ownership of the workshop in the disputed accommodation and that the claim of the defendants that they owned the workshop was not proved. On issue No. 2, the trial court held that the plaintiff was not entitled to any relief. On these findings, the suit was dismissed. The plaintiff took out an appeal to the lower appellate court and the said court allowed the same, set aside the judgment and decree of the trial court and decreed the suit. The lower appellate court concurred with the trial court's finding that the workshop in the disputed accommodation belonged to and was owned by the plaintiff and not by the defendants. However, on the question of tenancy, the lower appellate court, in disagreement with the trial court, held that the plaintiff had succeeded in proving the tenancy in the accommodation in question.
5. In this second appeal, on behalf of the defendants, Sri G. S. Srivastava, Learned counsel for the appellants, has questioned the correctness of the judgment of the lower appellate court on several grounds. In the main these grounds can be categorised as follows :
(1) The decision of the lower appellate court is based on evidence which was not proved and hence could not be treated as part of the record. In this connection he referred to papers Nos. 7 and 8 of list 43-C (In the Judgment of the lower appellate 'court, it has been wrongly said to be of list 48-C. The correct paper number of the list is 43-C) and to papers Nos. 92/2C and 9C/10.
(2) The decision under appeal is very substantially based on events and materials which came into existence after the institution of the suit. In this connection, he referred to the Commissioner's report and to other materials which have been referred to and relied on by the lower appellate court.
(3) The lower appellate court made the question of tenancy the subsidiary issue and though that the principal controversy was regarding the ownership of the workshop in the disputed accommodation. In truth, the real and only controversy between the parties was whether the relationship of landlord and tenant existed between the parties or not.
(4) The findings about the tenancy as well as about the ownership of the workshop were not supported by the evidence on record and the lower appellate court did not properly appreciate the material which supported the defendants' case as against the plaintiff. In this connection, counsel referred to the fact that while the trial court disbelieved the witnesses in regard to the plaintiff's allegation about the existence of the tenancy, the lower appellate court, without reversing the trial court's rejection of the testimony of the said witnesses, relied on the same and wrongly decreed the plaintiffs suit. The learned counsel for the appellants referred to Ext. 1 and Ext. A-5 and contended that the true effect of the documentary evidence was not appreciated by the lower appellate court.
6. Sri Rajeshwara Prasad, learned counsel for the plaintiff-respondent, in this connection, drew attention to the fact that on behalf of the defendant, formed proof of papers Nos. 7 and 8 of list 43-C had been dispensed with in the trial court. The endorsement to the said effect on the said papers was referred. Counsel also contended that so far as paper No. 92/2-C and paper No. 9C/10 are concerned, they did not need to be formally proved in as much as they had been summoned from the record of the Director of Industries, Kanpur and the departmental seal had been affixed to the said document. Lastly, it was contended on behalf of the plaintiff-respondent that the trial court's findings were pure findings of facts and this court had no jurisdiction to interfere in the second appeal.
7. I have considered these rival contentions. I shall take up the contentions made on behalf of the defendants-appellants in seriatim. So far as the papers are concerned, I am satisfied that papers Nos. 7 and 8 were correctly read in evidence. They should have been formally exhibited but unfortunately the trial court did not do so even though the defendants had dispensed with the formal proof of the said documents. The mere fact that exhibit numbers have not been given, however, will not mean that the documents did not stand exhibited in the circumstances of the case. However, the same cannot be said about paper No. 92/2-C and paper No. 9-C/10. In my opinion, Shri Rajeshwari Prasad is not correct in contending that the said papers did not need formal proof. In my opinion, the mere fact that they are forthcoming from the custody of a Government department, and they happened to bear the seal impression of the said department, will not dispense with the necessity of formally proving the same in the court of law. The documents are certainly not public documents and they are as such needed to be formally proved. However, in my opinion, the fact that these documents were being relied on to arrive at the finding will not make the said finding liable to be set aside. It will be seen that in the face of the big documentary evidence which has been considered by the courts below on the question of ownership of the workshop these two papers have really got not much significance. The licence on the basis of these papers was granted and that has been correctly exhibited as Ext. 8. The said licence as a proved document was sufficient to support the inference which the lower appellate court drew from the said papers and, therefore, the aforesaid infirmity in the judgment cannot be a ground for setting aside the same. The Supreme Court in Ram Chandra v. Rama-lingam : 3SCR604 has clearly emphasised the expression 'substantial error or defect in the procedure' used in Section 100 C.P.C. It is not every error in procedure which will lead to the interference by an appellate court in a second appeal. In my view looking to the facts and circumstances of this case, the said error in the judgment of the lower appellate court cannot be treated as substantial.
8. So far as the second contention of the learned counsel for the defendants-appellants is concerned, I do not think the same is tenable. The trial court appointed Commissioners from time to time who were directed to go on the spot and report about the business which was being carried on in the workshop. Obviously, these commissioners were appointed with reference to the question of the ownership of the business carried on in the workshop. Under Section 75 C.P.C. it is laid down that, 'subject to such conditions and limitations as may be prescribed, the Court may issue a commission:
(a) to examine any person ;
(b) to make a local investigation ;
(c) to examine or adjust accounts or
(d) to make a partition'
Order 26 C.P.C. prescribes the conditions and limitations for the appointment of Commissioners, Rule 9 of Order 26 enables the the court to issue commissions for local investigations. It is settled that judicial functions cannot be delegated by a court to the Commissioner. But this report contains information which throws light on a matter in dispute between the parties and can be utilised as evidence in the suit vide Rule 10 (2) of Order 26. It has also to be seen that no objection was taken to the appointment of the Commissioner by the trial court in the Lower appellate court. At least none appears to have been pressed before the said court as appears from its judgment. It is settled law that an objection to the appointment of the Commissioner and to the reception of his report cannot be taken for the first time in a second appeal vide Ram Brichh v. Mahamed Saheb. (AIR 1933 Pat 542). Counsel's contention that the lower appellate court based its judgment on the events and happenings which occurred during the pendency of the suit is not correct. The lower appellate court merely took into consideration, and it was entitled to do so, the various reports which had been submitted by the Commissioners appointed from time to time by the trial court.
9. So far as the third point is concerned, it is true that the real claim of the plaintiff was based on the averment that there was the relationship of landlord and tenant between the parties. However, it has also to be seen that the plaintiff claimed in the plaint that he was carrying on his workshop in the disputed accommodation. The defendants, in their written statement, denied the said allegation and set up a claim in themselves to the ownership of the workshop. On these pleadings, the trial court was justified in framing an issue about the ownership of the workshop. It should be seen that this controversy cannot be treated to be irrelevant. If the workshop really belonged to the defendants, then the plaintiff's claim to the tenancy was bound to fail If the workshop was held to belong to the plaintiff, then the latter did not necessarily succeed in his claim to be the tenant of the accommodation, but his status could be either that of a trespasser or as a licencee or as a tenant. Looking to the fact that the workshop has been found to exist for a number of years, the plaintiff could not in these circumstances be said to be a trespasser. As such, he could either be a licencee or a tenant. Therefore, it cannot be said that the controversy between the parties was without any significance or relevance for deciding the main controversy between the parties as to whether the relationship of landlord and tenant did or did not exist between them.
10. I do not think that a point can be successfully made against the lower appellate court that it has concentrated rather disproportionately on this controversy about the ownership of the workshop. The trial court has considered this controversy and came to a finding which was subsequently affirmed by the lower appellate court. If the workshop was held to belong to the plaintiff and if he was not shown to be a licencee by the defendants, then taking into consideration the normal course of things, it could be held that he was a tenant in the accommodation in dispute. As a circumstantial evidence, the finding about the ownership would have relevance to arrive at a finding about the existence or non-existence of tenancy.
11. So far as the last submission of the learned counsel is concerned, it has to be recalled that in Shri Raja Durga Singh of Salon v. Tholu : 2SCR693 , it has been clearly laid down that a finding on the question of tenancy is a finding of fact. The Supreme Court observed as follows: (at p. 364).
'The question here is whether the respondents are the tenants of the portion. Though for determining the question documentary evidence fell to be considered, the finding on the question is no less a finding of fact than may have been the case if the evidence to be considered was merely oral. As was pointed out by this court in that case as well as recently in Chunilal V. Mehta & Sons Ltd. Bombay v. Century Spinning and Manufacturing Company Limited being : AIR1962SC1314 , an issue of law does not arise merely because documents which are not instruments of title or otherwise thedirect foundation of rights but are merely historical documents have to be construed.'
12. In this view of the matter, this court in a second appeal has really no jurisdiction to interfere with the findings of facts recorded by the courts below on the question of ownership of the workshop as well as on the question of the existence of relationship of tenancy between the parties. The mere fact that the trial court disbelieved certain witnesses will not mean that the lower appellate court could not believe the statements of such witnesses. In these matters, it is not the form in which the lower appellate court has recorded its finding which can be allowed to prevail over the substance of the matter. It is clear from a perusal of the lower appellate court's judgment that the oral evidence adduced by the plaintiff on the question of tenancy was acceptable to the said court in preference to the defendant's evidence. Even if the plaintiff's testimony was found to be uncorroborated, still, the lower appellate court could rely on the same and in law its judgment cannot be said to be vitiated on account of its reliance on such uncorroborated testimony. The same is the position about Ext. 1 and Ext. A3. These documents have been noticed in the judgment of the lower appellate court and the said court has drawn its own inference. Even if I were to differ from the said inference, I could not do so in a second appeal. The Supreme Court, in various cases, for example, in Mattu Lal v. Radhey Lal : 1SCR127 , Gappulal v. Shri Ji Dwarkadheshji : 3SCR989 , Abdul v. Bhawani : 3SCR617 and Ram Chandra v. Ramalingam (AIR 1963 SC S02) and other cases clearly laid down that in the second appeal under Section 100 C.P.C., the court can interfere only in a limited situation. Unless there is an error of law, I cannot interfere in a second appeal even if the findings of fact recorded by the courts below seem to be grossly erroneous.
13. In the result, I find no merit in this appeal. It is accordingly dismissed but in the circumstances I shall make no order as to costs.