Page No.# 1/9 vs Md Amir Hussain And 5 Ors
2021 Latest Caselaw 3035 Gua

                                                                     Page No.# 1/9

GAHC010040412018




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

                          Case No. : RSA/224/2018

         MD MOBARAK HUSSAIN AND ANR
         S/O LATE ABDUL JALIL @ JALIL MIA, VILL. TIHU TOWN, WARD NO. 3, P.S.
         TIHU, MOUZA TIHU, DIST. NALBARI, ASSAM.

         2: MD. ALI HUSSAIN
          S/O LATE ABDUL JALIL @ JALIL MIYA
         VILL. TIHU TOWN
         WARD NO. 3
          P.S.TIHU
          MOUZA TIHU
          DIST.NALBARI
         ASSAM

         VERSUS

         MD AMIR HUSSAIN AND 5 ORS
         S/O LATE ABDUL JALIL @ JALIL MIYA, R/O FATASHIL AMBARI,
         DHIRENPARA TILA, MASZID GALI, GUWAHATI, DIST. KAMRUP (M),
         ASSAM.

         2:MD. AKHTAR HUSSAIN
          S/O LATE ABDUL JALIL @ JALIL MIYA
         VILL. TIHU TOWN
         WARD NO. 3
          P.S. TIHU
          MOUZA TIHU
          DIST.NALBARI
         ASSAM.

         3:MD. ANOWAR HUSSAIN
          S/O LATE HABEZ ALI
         VILL. TIHU TOWN
         WARD NO. -3
          P.S. TIHU
                                                 Page No.# 2/9

             MOUZA TIHU
             DIST.NALBARI
             ASSAM.

            4:SRI RABINDRA PATHAK
             S/O LT. DHARMESWAR
            VILL. TIHU TOWN
            WARD NO. 3
             P.S. TIHU
             MOUZA TIHU
             DIST.NALBARI
            ASSAM.

            5:MD. SHAHJAHAN TALUKDAR

             S/O LATE HAKIM
             VILL. TIHU TOWN
             WARD NO. 3
             P.S. TIHU
             MOUZA TIHU
             DIST. NALBARI
             ASSAM.

            6:SRI HAREN PATHAK
             S/O LATE GHANAKANTA PATHAK
            VILL. TIHU TOWN
            WARD NO. 3
             P.S. TIHU
             MOUZA TIHU
             DIST. NALBARI
            ASSAM.

            7:SRI HIRYNA PATHAK
             S/O LATE GHANAKANTA PATHAK
            VILL. TIHU TOWN
            WARD NO. 3
             P.S. TIHU
             MOUZA TIHU
             DIST. NALBARI
            ASSAM

Advocate for the Petitioner   : MR. L K BORAH

Advocate for the Respondent : MR D CHOUDHURY

Page No.# 3/9

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER(ORAL)

Date : 23-11-2021

Heard Mr. L.K. Borah, counsel appearing on behalf of the Appellants and Mr. S.N.

Krishnatraya, counsel appearing on behalf of the respondent No.1.

2. This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed

against the judgment and decree dated 10/07/2019 passed in Title Appeal No. 33/2014 by

the First Appellate Court, whereby the judgment and decree dated 19/11/2012 passed by the

Trial Court in Title Suit No. 21/2010 was affirmed.

3. 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

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 Page No.# 4/9

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 and 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 Page No.# 5/9

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 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:-

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"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,

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 Page No.# 7/9

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. L.K. Borah, the counsel appearing on behalf of the appellants submits that the

judgments and decrees passed by both the Courts below, though concurrent ,are vitiated in

view of the fact that the Courts below did not take into consideration that for a sale to be

made in respect of an immovable property as envisaged under Section 54 of the Transfer of

Property Act, 1882 delivery of possession is a component which is mandatorily required and

in absence of a delivery of possession, there cannot be a valid sale deed.

7. Mr. S.N. Krishnatraya, counsel appearing on behalf of the respondent No.1 submits

that the proposition of law as submitted by the counsel appearing for the appellants is not at

all tenable on a reading of Section 54 of the said Act of 1882.

8. To answer to the submissions made by the counsel for the parties, Section 54 of the

said Act of 1882 is quoted herein below :-

"54. "Sale" defined.-- ''Sale" is a transfer of ownership in exchange for a price

paid or promised or part-paid and part-promised.

Sale how made.--Such transfer, in the case of tangible immoveable property of

the value of one hundred rupees and upwards, or in the case of a reversion or

other intangible thing, can be made only by a registered instrument.

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In the case of tangible immoveable property of a value less than one

hundred rupees, such transfer may be made either by a registered instrument

or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the

buyer, or such person as he directs, in possession of the property.

Contract for Sale.--A contract for the sale of immoveable property is a contract

that a sale of such property shall take place on terms settled between the

parties. It does not, of itself, create any interest in or charge on such property."

9. A reading of the above quoted Section would go to show that sale is a transfer of

ownership in exchange for a price paid or promised or part paid and part promised. Hence a

sale of an immovable property has to be for a price. The price may be payable in future. It

may also be partly paid and the remaining part can be made in future. The said Section

further conceives of two types of immovable properties. One is tangible immovable properties

and the other is intangible immovable property. A tangible immovable property is an interest

in land in possession whereas an intangible immovable property is right over the land in the

possession of another which may be a future right to possession. A further perusal of the said

Section would show that transfer in the case of tangible immovable property of the value of

Rs.100/- and upwards or in the case of reversion or other intangible things, can only be made

by a registered instrument. It means all transfer by way of sale in respect to intangible

immovable property, reversion and tangible immovable property of a value of Rs. 100/- or

upwards can only be done by way of a registered instrument. The said Section stipulates an

exception in so far as tangible immovable property is concerned of a value less than Rs. 100/-

either by way of registered instrument or delivery of possession and in that context the said Page No.# 9/9

Section further stipulates when a delivery of tangible immovable property takes place.

10. In view of the above, taking into consideration that a patta right is an intangible

property and the requirement of a sale would be completed upon the price being paid as

promised or partly paid or partly paid and made by a registered instrument. The delivery of

possession has no relevance for the purpose of a sale to be completed in respect to an

intangible property. Consequently the question of law so urged is not a substantial question

of law for which the instant Second Appeal stands dismissed. No costs.

JUDGE

Comparing Assistant