Sri Amrit Kalita vs Sri Rajani Kanta Kalita And 6 Ors
2022 Latest Caselaw 758 Gua

                                                             Page No.# 1/15

GAHC010266822018




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

                        Case No. : RSA/219/2019

         SRI AMRIT KALITA
         S/O LATE KHARGESWAR KALITA, RESIDENT OF DORAKAHARA, DIST
         KAMRUP, ASSAM.



         VERSUS

         SRI RAJANI KANTA KALITA AND 6 ORS
         S/O LATE THUMBA RAM KALITA, RESIDENT OF VILLAGE- DORAKAHARA,
         DIST KAMRUP, ASSAM, PIN- 781101.

         2:SMTI RAJU DAS
         WIFE LATE GAURI KANTA DAS
          RESIDENT OF VILLAGE- MAINASUNDARI
          DORAKAHARA
          DISTRICT- KAMRUP
         ASSAM
          PIN- 781101.

         3:SRI UPEN DAS
          SON OF LATE GAURI KANTA DAS
          RESIDENT OF VILLAGE- MAINASUNDARI
          DORAKAHARA
          DISTRICT- KAMRUP
         ASSAM
          PIN-781101.

         4:SRI JOY DAS
          SON OF LATE GAURI KANTA DAS
          RESIDENT OF VILLAGE- MAINASUNDARI
          DORAKAHARA
          DISTRICT- KAMRUP
         ASSAM
                                                                     Page No.# 2/15

             PIN-781101.

            5:SRI BIREN DAS
             SON OF LATE GAURI KANTA DAS
             RESIDENT OF VILLAGE- MAINASUNDARI
             DORAKAHARA
             DISTRICT- KAMRUP
            ASSAM
             PIN-781101.

            6:SMTI MALATI RAJBONGSHI
            WIFE OF HARI CHANDRA RAJBONGSHI
             RESIDENT OF BAMUNIGAON- CHANGSARI
             DISTRICT- KAMRUP
            ASSAM
             PIN-781141.

            7:SMTI MINU DAS
            WIFE OF SUREN DAS
             RESIDENT OF VILLAGE-MADARTALA
             DISTRICT- KAMRUP
            ASSAM
             PIN-781381

Advocate for the Petitioner   : MR. J DAS

Advocate for the Respondent : MD S ALI

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (CAV) Date : - 04.03.2022

Heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. M.K.

Sharma, learned counsel appearing on behalf of the Appellants and Mr. S. Ali,

learned counsel appears on behalf of the Respondents.

2. This appeal arises out of the Judgment and Decree by the first Appellate Page No.# 3/15

Court dated 18.02.2015 in Misc. Appeal No. 20 of 2012, as well as the Order

dated 24.07.2018, passed in Misc. Appeal No. 41 of 2015 whereby, the Review

Application seeking review of the Judgment and Decree dated 18.02.2015 was

also dismissed.

3. Before deciding as to whether there is any substantial question of law

which arises, it would be relevant to take note of the brief facts of the instant

case. The respondents herein as Plaintiff had filed a Title Suit being Title Suit

No. 272 of 2003 seeking specific performance of a contract in respect to the suit

property as described in the Schedule, and in the alternative for recovery of the

consideration amount along with compensation in the said suit. It was the case

of the Plaintiff that the defendant therein Gauri Kanta Das (since deceased) who

is the predecessor in interest of the proforma Respondents herein had entered

into a registered agreement for sale of 1 Bigha 2 Katha and 10 lechas land

covered by Dag No. 320 of K.P. Patta No. 96 of village- Mainasundari, Mouza-

Modertola for a valuable consideration of Rs. 20,000/-. It was the further case

of the Plaintiff that initially at the time when the registered agreement for sale

was entered into, i.e., on 08.10.2001, an amount of Rs. 8,000/- was paid as

earnest money with a condition that the remaining amount of the consideration

would be paid at the time of the sale. However, on account of urgent need of

money of the said, late Gauri Kanta Das the remaining balance amount of Rs.

12,000/- was paid on 21.12.2001 which was duly received by the late Gauri

Kanta Das and also had executed an unregistered sale deed and thereafter Page No.# 4/15

handed over possession to the Respondent herein. Thereupon, certain disputes

arose as the Defendant was not executing and registering the Deed of Sale and

had dispossessed the Respondent herein from the suit land, therefore, the

Respondent as Plaintiff instituted the suit which was registered and numbered

as Title Suit 272/2003. In the said suit, the defendant, i.e., late Gauri Kanta Das

did not appear. The Trial Court, i.e., the Court of Civil Judge (Junior Division) No.

1 Kamrup, Guwahati, by order dated 30.11.2004 decreed the suit ex-parte in

favor of the Plaintiff therein. Pursuant to the said decree being passed the Sale

Deed was registered in favor of the plaintiff/ the respondent herein.

4. Subsequent thereto, the application under Order XXI Rule 97, 99 and 101

of the Code of Civil Procedure, 1908 (In short, The Code) was filed by the

Appellant herein stating interalia that the Respondent herein had instituted the

Title Suit No. 272/2003 in collusion with the late Gauri Kanta Das and without

arraying the Appellant as a defendant in the said suit. It was the case of the

Appellant in the said application that originally 3 Bighas of land (of which the

suit land is a part) was owned by one Jogeswar Rajbangshi and Gauri Kanta Das

jointly. The said Gauri Kanta Das, thereafter, sold his share to Jogeswar

Rajbangshi by way of registered Sale Deed bearing Deed No. 9227/1974 dated

18.11.1974; and accordingly, the said Jogeswar Rajbangshi became the owner

of the entire 3 Bighas of land. It was also mentioned that the said Jogeswar

Rajbangshi and Gauri Kanta Das were ryots in respect to the aforesaid total land

of 3 Bighas but later on, on the strength of the aforesaid Sale Deed, by way of Page No.# 5/15

purchase the entire 3 Bighas came to be owned and possessed by Jogeswar

Rajbangshi. The appellant had purchased 1 Bigha of land from the total land

from Jogeswar Rajbangshi by way of a registered Sale Deed No. 847/04 dated

28.10.2004 and came into the possession of the same and started to reside

therein by constructing his house there. It was also alleged in the said Petition

that the Appellant was in possession of the land and this aspect of the matter

was in know of the Respondent herein but the respondent herein while filing

the Title Suit No. 272/2003 did not make the Appellant herein a party to the

said suit and obtained the ex-parte decree collusively by playing fraud upon the

Court. It was also the specific case of the Appellant in the said application that

Gauri Kanta Das had no transferable right over the suit land and as such he

could not have sold the same to the Respondent herein and as such the

Respondent could not have derived any right, title or interest over the suit land.

The said application was registered and numbered as Misc(J) Case No.

385/2007.

5. The respondent herein who was the opposite party in the said application

appeared and filed his written objection. It was the case of the Respondent that

Jogeswar Rajbangshi was the owner of only half of the share of 3 Bighas of land

and the other half was owned by the opposite party No. 2 i.e., Late Gauri Kanta

Das. It was also pleaded that the father of Gauri Kanta Das namely, Rathikanta

Das was the ryot in respect of the 3 Bighas of land and thereafter Gauri Kanta

Das transferred his half share in the aforesaid 3 Bighas of land to Jogeswar Page No.# 6/15

Rajbangshi and as such the said Jogeswar Rajbangshi became owner of 1 Bigha

2 Kathas 10 Lechas of land. It was further mentioned that the Government

settled the aforesaid land in favor of Jogeswar Rajbangshi and Gauri Kanta

Kalita and as such both of them became owner of half share in the aforesaid 3

Bighas of land, i.e., 1 Bigha 2 Kathas 10 Lechas each. It was also mentioned

that the respondent had entered into an agreement to purchase the suit land

which was the share of Gauri Kanta Das but Gauri Kanta Das refused to sell the

suit land and had dispossessed the Respondent on 30.07.2003 though the

Respondent was delivered possession on 21.12.2001 when the Respondent had

paid the entire consideration money.

6. On the basis of the said pleadings as many as five issues were framed by

the executing Court which were:

1. Whether the petition under Or.21 R97, 99, 101 CPC is maintainable in

the present case?

2. Whether the petition is collusive one with that of proforma O.P/judgment

debtor?

3. Whether the petitioner/resister is the owner of the decreetal land and is

in exclusive possession thereof?

4. Whether the decree in T.S 272/2003 is binding upon the

petitioner/resister?

5. Whether the petitioner is entitled to the relief prayed for?

Page No.# 7/15

On behalf of the appellant, four witnesses were examined and various

documents were exhibited. On behalf of the respondent herein, three witnesses

were examined and various documents were also exhibited.

7. In deciding the issue Nos. 2 and 3, the learned executing Court after

taking into consideration the evidence of the Appellant who was the PW-1 who

had admitted that originally, Gauri kanta Das owned the Three Bighas of land

and from him, the vendor Shri Jogeswar Rajbangshi purchased 1 Bigha 2 Kathas

10 Lechas of land. The executing Court further takes into consideration Exhibit-A

which was a copy of chitha wherein it showed that Ratiram Das (father of Gauri

Kanta Das) was the ryot in respect of the entire 3 Bighas of land. The

vendor of the Appellant had also adduced evidence in the said proceedings and

from his evidence it was clear that the said Jogeswar Rajbangshi came into

possession of the land only after purchasing the same on 18.11.1974. This

aspect of the matter would also be clear from Exhibit-1 i.e., the Sale Deed No.

9227/1974 of the year 1974 which was the only document produced though the

said Jogeswar Rajbangshi in his evidence had deposed that he had purchased

two plots of land, i.e., 1 Bigha 2 Katha 10 Lechas of land from Gauri Kanta Das

in the year 1973 and thereafter another 1 Bigha 2 Katha 10 Lechas of land in

the year 1974. But no such Sale Deed of the year 1973 was produced before

the Executing Court. The Respondent, while adducing his evidence, had

produced a certified copy of the Sale Deed No. 759/2004 dated 29.09.2004 prior

to the Sale Deed executed in favor of the Appellant whereby Jogeswar Page No.# 8/15

Rajbangshi had sold 1 Bigha 2 Katha 10 Lechas of land to one Hirendra Das. On

the basis of the said evidence, the learned Executing Court came to a finding

that Jogeswar Rajbangshi, after selling 1 Bigha 1 Katha 10 Lechas to Hirendra

Das out of his 1 Bigha 2 Katha 10 Lechas of land, was left with 1 Katha of land

after the aforesaid sale on 29.09.2004, and consequently, the sale made in favor

of the Appellant of 1 Bigha of land could not have been done by the said

Jogeswar Rajbangshi. Accordingly, the Executing Court came to a finding that

the Appellant could not have been the owner of 1 Bigha of land. The Court

further held that the Respondent was the owner having right, title and interest

over the suit land and as such the possession of the Appellant over the suit land

is nothing but that of a trespasser. On the basis of the said finding, the

Executing Court vide Order dated 22.02.2012 dismissed the application filed

under Order XXI Rule 97, 98 and 101 of The Code and directed the Appellant to

vacate the suit land and hand over the possession of the same to the

Respondent herein within two months from the date of the said order or else

the respondent herein could recover the possession by evicting the appellant.

8. Being aggrieved by the said Order dated 22.02.2012, passed in Misc.(J)

Case No. 385/2007, which is the decree in terms with Order XXI Rule 103 of

The Code, an appeal was filed by the Appellant herein, which was registered as

Misc. Appeal No. 20 of 2012. The Court of the Civil Judge Kamrup, Amingaon,

vide Order dated 18.02.2015, dismissed the said appeal by conforming to the

findings of the Executing Court.

Page No.# 9/15

9. Against the said Judgment and Decree dated 18.02.2015 passed by the

First Appellate Court, a Review Application was filed which was registered and

numbered as Misc. Case No. 41/2015. The First Appellate Court vide an Order

dated 24.07.2018 dismissed the said Review Application with cost of Rs. 1,000/-.

It is against the said Judgment and Decree dated 18.02.2015 passed by the

First Appellate Court in Misc. Appeal No. 20/2012 and the dismissal of the

Review Order dated 24.07.2018 passed in Misc. Case No. 41/2015, the Appellant

is before this Court under Section 100 of The Code.

10. The said appeal has come before this Court at the stage of consideration

under Order XLI Rule 11 of The Code and as such, before taking into

consideration as to whether a substantial question of law involved and the same

can be formulated for the disposal of appeal, it is required that this Court takes

into consideration the jurisdiction of this Court in exercise of power under

Section 100 of The Code. It is relevant herein to mention that the instant Appeal

arises out of concurrent findings of fact. Section 100 of The Code permits the

High Court to exercise 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 question 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 Page No.# 10/15

the parties. In the context of Section 100 of The Code 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 on 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 a 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 when 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 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 in its reconsideration, alteration, modification

or clarification or that there is a need to resolve the apparent conflict between

two different viewpoints, it can be said that the substantial question of law Page No.# 11/15

arises for consideration. In that view of the matter, there cannot therefore be a

straitjacket definition as to when a substantial question of law arises in a case, it

shall depend on the fact of each case along with the decision rendered by the

Court below.

11. The Supreme Court in the case of Santosh Hazari V. Purushottam Tiwari

(DECEASED) by LRS., reported in (2001) 3SCC 179, discussed what would be a

substantial question of law in paragraph 12, 13 and 14 which is quoted

hereinbelow:

"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 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:-

'..when 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 Page No.# 12/15

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, 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."

In the backdrop of the above, let this Court first take into consideration Page No.# 13/15

the substantial question of law as has been stated in the Memo of Appeal to be

involved in the present appeal in terms with Section 100(3) of The Code and

considered as to whether the said substantial question of law as stated can be

at all formulated.

12. In the appeal memo, the following substantial question of law has been

stated to be involved in the instant appeal. For the sake of convenience, the

same are:

1. Whether the impugned judgment and orders are perverse in view of the

finding that the decree passed in Title Suit No. 272/2003 is not binding

upon the appellant?

2. Whether the order dated 30.11.2004 passed in Title Suit No. 272/2003 is

enforceable without granting any specific relief and without adhering to

the procedure prescribed in Order XX of the Civil Procedure Code, 1908

(as amended)?

3. Whether the learned court below were within its jurisdiction to dismiss the

Misc(J) Case No. 385/2007 as well as the Misc. Appeal No. 18/2014 in

view of the clear finding of both the court below that the decree dated

30.11.2004 passed in T.S. No. 272/2003 is not binding upon the appellant?

Let this Court first take into consideration as to whether the substantial

question of law so stated at Serial 1 and Serial 3 are at all substantial question

of law that can be framed which is involved in the instant Appeal. Both the said

substantial question of law are taken up together as they are one and the same Page No.# 14/15

in as much as it has been urged that when the Courts below have held that the

Judgment and Decree in Title Suit 272/2003 was not binding upon the Appellant

whether the Courts below were justified in dismissing the said application under

Order XXI Rule 97, 99 and 101. In the opinion of this Court, the said substantial

questions of law as stated in the Memo of Appeal are totally misconceived in as

much as if the said Judgment and Decree passed in Title Suit 272/2003 was

binding, the Courts could not have taken up consideration of the proceedings

under Order XXI Rule 97, 98 and 101 of The Code. As it was not binding, the

Appellant was permitted as a third party/resister to prove his right over the suit

land by way of the proceedings under Order XXI Rule 97, 98 and 101 of The

Code. However, by virtue of the orders passed in the proceedings under Order

XXI Rule 97, 98 and 101, which have been affirmed such orders would be a

decree within the meaning of Rule 103 of Order XXI.

13. As regards the substantial question of law stated at Serial No. 2, as to

whether the Order dated 30.11.2004 passed in the Title Suit 272/2003 is

enforceable without granting any specific relief and without adhering to the

procedure prescribed in Order XX of The Code of 1908, it is the opinion of this

Court that the said substantial question of law stated in the Memo of Appeal is

also misconceived in as much as in proceedings under Order XXI Rule 97, 99

and 101, it is the requirement of law after the Amending Act, i.e., T he Code of

Civil Procedure (Amendment) Act, 1976, that the resister/the petitioner of an

application under Order XXI Rule 97, 99 and 101 has to prove his right, title Page No.# 15/15

and/or interest in the property in dispute. The decree which has been passed in

Title Suit 272/2003 cannot be assailed on the basis of any application under

Order XXI, Rule 97, 99 and 101 of The Code. The only scope of the said

proceedings under Order XXI Rule 97, 99 and 101 of The Code is for the

petitioner/resister to prove his/her right, title and/or interest in the property in

dispute upon being able to prove, an order would be passed in terms with Order

XXI Rule 103 of The Code which shall be a decree. In the instant case, the

concurrent findings of fact arrived at by both the Courts below is that the

vendor of the Appellant, i.e., Shri Jogeswar Rajbangshi, did not have the title to

convey 1 Bigha of land to the Appellant vide the registered Deed of Sale bearing

Deed No. 847/2004 dated 28.10.2004. The Appellant have not been able to

show before this Court that there arises any perversity in the findings of facts of

both the Courts below. Besides, the learned counsel for the Appellant has not

been able to show that there arises any other substantial question of law which

is involved in the instant Appeal.

14. Consequently, all the three substantial question of law as stated in the

Memo of Appeal, in the opinion of this Court, are not substantial question of law

involved in the instant Appeal for which, the instant appeal stands dismissed.

However, the parties shall bear their own costs.

JUDGE

Comparing Assistant