Page No.# 1/6 vs Md. Najat Ali And 3 Ors
2021 Latest Caselaw 3029 Gua

                                                                        Page No.# 1/6

GAHC010159822021




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

                             Case No. : RSA/98/2021

         MD. TOYJAL HOQUE @ TOYZAL HOQUE AND 2 ORS.
         S/O- NABUR UDDIN, P.S. MANKACHAR, DIST.- DHUBRI, ASSAM, PIN-
         783348.

         2: LOKMAN SK @ LOKMAN HOQUE
          S/O- ROHIM UDDIN
          R/O- VILL.- BAUSHKATA
          P.O. KALAPANI
          P.S. MANKACHAR
          DIST.- DHUBRI
         ASSAM

         3: ROHIM UDDIN
          S/O- LATE HOSEN ALI SK
          R/O- VILL.- BAUSHKATA
          P.O. KALAPANI
          P.S. MANKACHAR
          DIST.- DHUBRI
         ASSAM
          PIN- 783348

         VERSUS

         MD. NAJAT ALI AND 3 ORS.
         S/O- ROHIM UDDIN, R/O- VILL.- BAUSHKATA, P.O. KALAPANI, P.S.
         MANKACHAR, DIST.- DHUBRI, ASSAM

         2:THE ASSTT. SETTLEMENT OFFICER
          MANKACHAR CIRCLE
          P.O. AND P.S. MANKACHAR
          DIST.- DHUBRI
         ASSAM

         3:THE SUB-REGISTRAR OF SUB REGISTRATION OFFICE
                                                                                     Page No.# 2/6

             HATSINGIMARI P.S. SOUTH SALMARA
             DIST.- DHUBRI
             ASSAM

            4:THE STATE OF ASSAM
             REP. BY THE COLLECTOR OF DHUBRI
             P.O. AND DIST.- DHUBRI
            ASSA

Advocate for the Petitioner   : MR. K K DEY

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                     HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                            ORDER

Date : 23-11-2021

Heard Mr. K K Dey, learned counsel appearing on behalf of the appellants.

2. This appeal under Section 100 is directed against the concurrent finding of facts whereby the Appellate Court by the judgment and decree dated 18.08.2021 in Title Appeal No. 26/2019 had affirmed the judgment and decree passed by the Trial Court dated 27.05.2019 in Title Suit No. 06/2016.

3. Before deciding the contentions raised by the counsel of the appellants, 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 the context of Section 100 of the CPC, any question of law, which affects the final decision in a case is a 'substantial Page No.# 3/6

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 the 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.

4. 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 many other provisions such as Section 109 of Page No.# 4/6

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 Page No.# 5/6

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, 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."

5. 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.

6. Mr. K K Dey, learned counsel appearing for the appellants submits that both the Courts below erred in law in not properly appreciating the Exhibit B and had they appreciated the Exhibit B in the proper perspective, then, the defendants' entitlement to remain in possession in terms with Section 53A of the Transfer of Property Act, 1882 would be there and having not considered the Exhibit B in the proper perspective it had resulted in an error being Page No.# 6/6

committed in the outcome of the litigation whereby there had been a decree for delivery of possession.

7. Exhibit B has been enclosed to the Memo of Appeal at pages 119-120. I have perused the said Exhibit B. It is an affidavit sworn on 22.01.2010 and it is on the basis of Exhibit B, the appellants are claiming their rights under Section 53A of the Transfer of Property Act, 1882.

8. It is relevant to take note of Section 17[1(A)] of the Registration Act, 1908 and for the sake of convenience the said Section is quoted hereinbelow:

"[1(A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A]."

9. A perusal of the said Section reveals that the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered and if they have been executed on or after the commencement of the Registration and other related laws (Amendment), Act 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of the said Section 53A of the said Act.

10. The said Section is absolutely clear that for taking benefit under Section 53A of the said Act, any documents executed pursuant to the Registration and other related laws (Amendment) Act, 2001, the same has to be registered. Admittedly, the document Exhibit B is not registered.

11. Consequently, I do not find that any substantial question of law has arisen in the instant appeal and as such, the instant appeal stands dismissed. No costs.

JUDGE

Comparing Assistant