Page No.# 1/8 vs Shri Ranjit Kumar Barooah
2021 Latest Caselaw 2947 Gua

                                                                              Page No.# 1/8

GAHC010301232019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : RSA/13/2020

            ON THE DEATH OF BITHIKA BARUAH HER LEGAL HEIR SHRI ABHIJIT
            BARUAH AND ANOTHER.
            S/O- LATE AJIT BARUAH.

            2: SHRI ABHIJIT BARUAH
             S/O- LATE AJIT BARUAH.

            3: SHRI BISWAJIT BARUAH
             S/O- LATE AJIT BARUAH
            ALL ARE RESIDENT OF KENDUGURI (NEAR JORHAT SERVICE STATION)
             P.O. CHENGELI GAON
             JORHAT- 785010

            VERSUS

            SHRI RANJIT KUMAR BAROOAH
            S/O- LATE LAKESWAR BAROOAH, R/O- KENDUGURI (NEAR JORHAT
            SERVICE STATION), P.O. CHENGELI GAON, JORHAT- 785010.



Advocate for the Petitioner   : MR. A SATTAR

Advocate for the Respondent : MR J K Bhuyan

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT& ORDER (ORAL) Date : 18-11-2021

Heard Mr. A. Sattar, learned counsel appearing for the Appellants and Mr. A.C. Sarma, Page No.# 2/8

learned senior counsel appearing on behalf of the respondent.

2. This appeal under Section 100 Of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 06/09/2019 passed by the Court of the Additional District Judge, Jorhat (the First Appellate Court) in Title Appeal No. 2/2015 whereby the judgment and decree dated 02/02/2015 passed by the Civil Judge, Jorhat (the Trial Court) in Title Suit No. 27/2008 was confirmed.

3. Mr. Sattar, the counsel appearing on behalf of the appellants submits that the issue in the instant case revolves around the question as to whether Ajit Barua (since deceased) was the adopted son of Lakheswar Barua (since deceased) and he further submits that both the Courts below had decided wrongly the said issue without taking into consideration Exhibit- 'Ka' (1) in the proper perspective inasmuch as, it is in the submission of the counsel that had the Courts below properly appreciated the evidence in respect to Exhibit- 'Ka' (1), suit could have been decided in favour of the appellants. He submitted that Exhibit- 'Ka' (1) is an article written by Kenduguri Sahitya Sabha on the occasion of 'Aidya Sardha' of Late Lakheswar Barua in the year 1999, published in the memorial "Tarpan", wherein it was mentioned that Late Ajit Baruah @ Jadumoni was accepted by Lt. Lakheswar Barua as his adopted son.

4. Mr. A.C. Sarma, learned Senior Counsel appearing on behalf of the respondents submits that Exhibit- 'Ka' (1) has no evidentiary value unless and until it is corroborated by evidence and further that neither the writer of Exhibit- 'Ka' (1) was examined nor any evidence had been adduced to prove the contents of the Article.

5. Before deciding the contentions raised by the counsels as aforementioned, it would be necessary to look into the jurisdiction of this Court in exercise of the power under Section 100 of the CPC. It is relevant herein to mention that the instant appeal arises out of a concurrent findings of facts. Section 100 of the CPC permits the High Court to exercise the jurisdiction against an appellate decree only when there arises a substantial question of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial question of law' means not only 'substantial question of law' of general importance, but also a substantial question of law arising in a case as between the parties. In Page No.# 3/8

the context of Section 100 of the CPC, any question of law, which affects the final decision in a case is a 'substantial question of law' as between the parties. A question of law which arises incidentally or collaterally having no bearing in the final outcome will not be a substantial question of law. Where there is a clear and settled enunciation of a 'question of law', it cannot be said that the case involves a 'substantial question of law'. It is said that a substantial question of law arises when a question of law, which is not finally settled, arises for consideration in the case but this statement has to be understood in the correct perspective meaning thereby that where there is a clear enunciation of law and the Lower Court has followed or rigidly applied, such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law, but the Lower Court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by the Supreme Court or this Court would have led to a different decision, the appeal would involve a 'substantial question of law' as between the parties. Even where there is an enunciation of law by the Supreme Court or this Court and the same has been followed by the Lower Court, if the appellant is able to persuade this Court i.e. that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two different viewpoints, it can be said that a substantial question of law arises for consideration. In that view of the matter, there cannot, therefore be a straight jacket definition as to when a substantial question of law arises in a case, it shall depend on the facts of each case along with the decision rendered by the Courts below.

6. The Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRs reported in (2001) 3 SCC 179 discussed what would be a substantial question of law in paragraphs 12, 13 & 14, which are quoted herein below :

"12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in Page No.# 4/8

many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution.

The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-

..[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors., AIR 1953 SC 521, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code.

14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, Page No.# 5/8

depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

7. In the backdrop of the above, taking into consideration that the instant appeal is taken up for hearing at the stage of Order XLI Rule 11 of the CPC, it would be relevant to find out as to whether the substantial question of law as urged by the counsel appearing on behalf of the appellants can at all be formulated as a substantial question of law for the purpose of adjudication of the instant appeal.

8. The brief facts of the present lis is that the respondent herein, who admittedly is the son of Lt. Lakheswar Barua had instituted the instant suit claiming right, title and interest over the Schedule A land; for a decree of khas possession of the suit premises by demolishing the illegal R.C.C. construction made over the suit land and also by demolishing all illegal construction made in the Assam Type House and demolishing all illegal construction made in the suit land; for grant of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs and also restraining them from entering into the suit premises. In the said suit, the respondent herein, as plaintiff, stated that his father Lt. Lakheswar Barua was the absolute owner and possessor of the Schedule B land which included the Schedule A land. In the said Schedule A land there was an Assam Type House standing thereon. Pursuant to the death of Lt. Lakheswar Barua, the plaintiff being the sole legal heir inherited the same and his name was duly mutated in the Records of Rights on 07/09/1993. It is the admitted case of the plaintiff that during the life time of Lt. Lakkheswar Barua, one Late Ajit Barua( the predecessor-in-interest of the defendants), who was the son of Lt. Sarat Ch. Barua was permitted to reside in the Assam Type House as Lt. Sarat Ch. Barua was the cousin of Late Lakheswar Barua. Even after the death of Lt. Lakheswar Barua, Lt. Ajit Barua continued to reside in the said Assam Type House as a "permissive occupier" to which the plaintiff never raised any objection. It is an admitted fact that Lt. Ajit Barua had inherited land admeasuring 4 katha 2 bigha 18 lechas from Lt. Sarat Ch. Barua, who was his natural father. The plaintiff, who was a Government employee and residing outside Jorhat was duly paying the land revenue and other property taxes. Lt. Ajit Barua expired on 14/04/1995 and after his death, the defendants were also allowed to reside in the Schedule A property. But taking advantage of the fact that the plaintiff was absent from Jorhat, the defendants Page No.# 6/8

tried to grab the property illegally in the year 2003 by getting the Schedule A mutated in their own name showing that they were the legal heirs of Lt. Lakheswar Barua. However, the said mutation was subsequently cancelled upon being objected by the plaintiff. It is also the further case in the plaint that on the strength of mutation order passed on behalf of the defendants, they obtained a permission from the Jorhat Development Authority for construction of a RCC building over Schedule A land and started to construct the RCC roof. When the plaintiff came to learn about the same, he duly objected and vide order dated 26/10/2007, the Chairman of the Jorhat Development Authority cancelled the said building permission and also directed to remove the unauthorized structure over the land. In view of the acts of the defendants, which had clouded the rights of the plaintiff, the plaintiff filed the suit before the Court of the Civil Judge, Jorhat being Title Suit No. 27/2008 seeking the reliefs as already stated herein above.

9. The defendants, who are the appellants herein filed a joint written statement stating inter alia that Lt. Ajit Barua was the adopted son of Lt. Lakheswar Barua and after his marriage Lt. Lakheswar Barua permitted Lt. Ajit Barua to construct the Assam Type House over the suit land and after the death of Lt. Lakheswar Barua, the plaintiff separated the suit land from the Schedule B land by constructing a pucca boundary wall. After the death of Ajit Barua, the plaintiff in order to grab the Assam Type House constructed in the suit land had instituted the suit.

10. On the basis of the pleadings adduced by the parties as many as ten issues were framed, of which issue No. 8 being relevant for the purpose of deciding as to whether in the instant appeal there arises a substantial question of law to be formulated, the same is quoted herein below :

"8. Whether Lt. Ajit Barua was the adopted son of Lt. Lakheswar Barua ?

11. The said issue No. 8 is relevant for the purpose of disposal of the instant appeal, inasmuch as, if the said issue is decided either way, it shall effect the outcome of the lis between the parties.

12. From a perusal of the written statement filed by the defendants, it is surprising to take not of that there is no date mentioned in the written statement as to when Lt. Ajit Barua was Page No.# 7/8

born nor any evidence was led in that regard. The only thing, which can be seen from a perusal of the written statement is that Lt. Lakheswar Barua adopted Ajit Barua as his adopted son at the age of 19 days of Lt. Ajit Barua. In view of non-mentioning of the date of birth, the provision of the Hindu Adoption and Maintenance Act, 1956 would be applicable and consequently the adoption, if any, has to be done in accordance with the provisions of the said Act, i.e. following the provisions of Sections 5, 6, 7, 9, 10, 11 as well as Section 12 of the said Act. In absence of adhering to the requirement of the said Act, the adoption, if any, cannot be held to be a valid adoption in view of Section 5 of the said Act, which stipulates that if an adoption is made after the commencement of the said Act by a Hindu the said adoption, made in contravention of the said provisions shall be void. An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth. Now the question, therefore, arises as to whether Exhibit 'Ka" (1) shall have any relevance for the purpose of adjudication of the disputes involved in the instant case. As already stated herein above, the Act of 1956 stipulates the requirement for the purpose of valid adoption and it is the person adopted or anyone claiming under him to prove that a person has been validly adopted. In the instant case, except Ext.'Ka'(1) and the oral evidence of the DW-1 & DW-2, there is no other evidence available to substantiate the claim that Lt. Ajit Barua was the adopted son of Lt. Lakheswar Barua. The evidence of DW-1 and DW-2 has been rightly appreciated by the Courts below to the effect that their evidence cannot be taken into account that Lt. Ajit Barua was the adopted at the age of 19 days, as DW-1 and DW-2 were not born at that relevant point of time as they themselves admitted. Now the questions which remains as regards Ext.-'Ka'(1) is nothing but a memorial or an article published by Kenduguri Sahitya Sabha. Neither the writer of Ext.'Ka'(1) had adduced evidence thereby permitting the plaintiff to cross-examine him nor there had been any corroborative evidence being adduced in support of said Ext. 'Ka'(1). Consequently the Ext. 'Ka'(1) was rightly rejected by both the Courts below. This Court under Section 100 of the CPC cannot appreciate the said evidence. I am of the opinion that the findings arrived at in respect to issue No. 8 that Ajit Barua was not adopted son of Late Lakheswar Barua has been rightly decided.

13. In view of the above, in my opinion, the substantial question of law which was urged Page No.# 8/8

to be formulated for the adjudication of the appeal cannot be done so, taking into account the evidence led. From a perusal of the judgment impugned in the instant proceedings and the findings of facts being arrived at on the basis of the well settled principle of law, the instant appeal stands dismissed. No costs.

JUDGE

Comparing Assistant