Gauhati High Court
RSA/121/2024 on 17 February, 2025
Page 1 of 27
GAHC010140822024
2025:GAU-AS:1648
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
RSA No. 121/2024
1. Sita Devi,
W/o-Late Lal Mohan Sahani,
R/o-Janiganj,
P.O.& P.S. Silchar,
District- Cachar, Assam.
2. Sampat Lal Sahani,
S/o-Late Lal Mohan Sahani,
R/o-Janiganj,
P.O.& P.S. Silchar,
District- Cachar, Assam.
3. Dhan Lal Sahani,
S/o-Late Lal Mohan Sahani,
R/o-Janiganj,
P.O.& P.S. Silchar,
District- Cachar, Assam.
.....Appellants
Versus-
1. Pankaj Sarda,
S/o-Sri Ghanashyam Sarda,
R/o-Janiganj Bazar,
P.O.& P.S. Silchar,
RSA No. 121 of 2024 Page1
Page 2 of 27
District- Cachar, Assam.
2. Pawan Sarda,
S/o-Sri Ghanashyam Sarda,
R/o-Janiganj Bazar,
P.O.& P.S. Silchar,
District- Cachar, Assam.
3. Smt. Basanti Singh,
W/o-Late Bindeswari Singh,
Originally R/o-Village-Jogwa,
P.O. Narkatia,P.S. Mirganj,
District- Gopalganj, Bihar.
Now R/o- Janiganj,
Silchar Town,P.S. Silchar,
District- Cachar, Assam.
4. Rama Sankar Singh,
Originally R/o-Village-Jogwa,
P.O. Narkatia,P.S. Mirganj,
District- Gopalganj, Bihar.
Now R/o- Janiganj,
Silchar Town,P.S. Silchar,
District- Cachar, Assam.
5. Santosh Kumar Singh,
Originally R/o-Village-Jogwa,
P.O. Narkatia,P.S. Mirganj,
District- Gopalganj, Bihar.
Now R/o- Janiganj,
Silchar Town,P.S. Silchar,
District- Cachar, Assam.
6. Smt. Sunita Singh,
Originally R/o-Village-Jogwa,
P.O. Narkatia,P.S. Mirganj,
District- Gopalganj, Bihar.
RSA No. 121 of 2024 Page2
Page 3 of 27
Now R/o- Janiganj,
Silchar Town,P.S. Silchar,
District- Cachar, Assam.
.....Respondents
For Appellant(s) 1. Mr. G. N. Sahewalla, Advocate.
2. Ms. S. Todi, Advocate.
For Respondent(s) 1. Mr.S.Dutta, Advocate.
2. Mr. S.K. Ghosh, Advocate.
Date of judgment : 17.02.2025.
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT & ORDER (CAV)
1. Heard Mr. G. N. Sahewalla, learned Senior Counsel, assisted
by Ms. S. Todi, learned counsel for the appellants. Also heard Mr. S.
Dutta, learned Senior Counsel, assisted by Mr. S.K. Ghosh, learned
counsel for the respondent Nos. 1 to 6.
2. This regular second appeal has been registered on filing of a
memo of appeal under Section 100 of the Code of Civil Procedure,
1908 by the appellants, impugning the judgment and order dated
12.02.2021, passed by learned Civil Judge No. 2 Cachar, Silchar in
Misc. Appeal No.18/2014, whereby the judgment and order dated
30.09.2014, passed in Misc. Case No. 129/2009 in Title Execution
Case No. 17/2009 by the Court of learned MunsiffNo.1Cachar was
affirmed.
RSA No. 121 of 2024 Page3
3. It is pertinent to mention here in that initially, this appeal was
registered as second appeal against order i.e., SAO No. 01/2021,
however, as the instant appeal is against a decree which arise out
of a proceeding under Order 21, Rule 97 and 101 of the Code of
Civil Procedure, 1908, as in terms of Rule 103, the order in such
proceeding is to be treated as a decree, by order dated 20.26.2024,
this Court directed the Registry to re-register the appeals as Regular
Second Appeal and accordingly, same was done.
4. The facts relevant for consideration of the instant appeal, in
brief, are as follows: -
i. In their petition, filed under Order 21 Rule 97 and
99 of the Code of Civil Procedure, 1908, before the
Executing Court, in Misc. Case No. 129/2009,
which arose out of Title Execution Case No.
17/2009, the appellants, as petitioners, contended
that the suit land along with one two storied old
Assam type structure standing thereon was
originally owned by Sri Sri Mahaprabhu Bigraha.
Thereafter, Ram Niranjan Singha and Mahim
Chandra Suklabaidya, had taken the said suit land
on rent in the year, 1945. It was contended that
both of them had constructed permanent houses
thereon and the name of Ram Niranjan Singha
was mutated in the municipal holding as owner
RSA No. 121 of 2024 Page4
and Mahim Chandra Suklabaidya, was shown as
an occupier in the said home. It was further
contended that as per mutual arrangement
between Ram Niranjan Singha and Mahim Chandra
Suklabaidya, Ram Niranjan Singha relinquished his
lease rights in respect of his share of the land in
favour of Mahim Chandra Suklabaidya, on receipt
of valuable consideration. It was further
contended that the landlord accepted Mahim
Chandra Suklabaidya, as his tenant by accepting
rent and issuing rent receipt to him. It was further
contended that Mahim Chandra Suklabaidya,
constructed permanent structure over the suit land
and thus acquired non-evictable occupancy right
over the suit land under Assam Non-Agricultural
Urban Areas Tenancy Act, 1955.
ii. It was further contended that the predecessor-in-
interest of the appellants, namely, Mani Lal
Sahani, who was a businessman was inducted in
the suit premises in the early part of 1950 by Ram
Niranjan Singha as a licensee. It was also
contended that in the year, 1955 Ram Niranjan
Singha left the suit land, handed over the
possession of the suit premises to Mani Lal Sahani
RSA No. 121 of 2024 Page5
and who paid rent to the landlord and also paid
municipal taxes regularly and carried on his
business from the suit premises in the name of
M/s Mani Lal Sahani, Janiganj. It was also
contended that on death of Mahim Chandra
Suklabaidya his legal heirs executed an
unregistered deed of conveyance in favour of Mani
Lal Sahani transferring the right, title and interest
over the suit land occupied by them and delivered
the possession to Mani Lal Sahani. It was also
contended that Mani Lal Sahani carried on
business of restaurant in the suit premises and
after his death his legal heirs, that is, the present
appellants came into the possession of the suit
premises. It was contended by the appellants
before the Executing Court that they were not the
employees of Bindeswari Singh and paid annual
rent to the landlord and municipal taxes regularly
and accordingly, prayed for declaration of their
non-evictable tenancy right under the Assam Non-
Agricultural Urban Areas Rent Control Act, 1955 as
well as confirmation of their possession. It was
also prayed that the decree passed in Title Suit
No. 143/2007 is not binding on the predecessor-in-
interest of the appellants.
RSA No. 121 of 2024 Page6
iii. On the other hand, the respondents herein filed
objection to the claim of the appellants before the
Executing Court. It was contended that one Sri
Harichand Sarda had acquired title over the
scheduled premises by virtue of a registered sale
deed No. 12 dated 03.01.1958 from the original
owner, namely, Sri Sri Mahaprabhu Bigraha(deity).
It was also contended that Ram Niranjan Singh
was a tenant under the said Harichand Sarda in
respect of the suit premises. It was further
contended that on the death of Ram Niranjan
Singha, his wife was the only surviving legal heir,
who became the tenant over the suit premises and
on the death of wife of Ram Niranjan Singha, the
tenancy rights devolved upon the brother of the
wife of Ram Niranjan Singha, namely, Sundar
Singh. It was also contended that on the death of
Sundar Singh, his only son Bindeshwari Singh
obtained trade license and conducted business in
the suit premises. It was also contended that Lal
Mohan Sahani was employed by Ram Niranjan
Singhaand Bindeswari Singh to conduct their trade
in the suit premises. It is further contended by the
respondents that Mahim Suklabaidya at no point of
RSA No. 121 of 2024 Page7
time had acquired any non-evictable tenancy
rights over any portion of the suit land. It was
further contended by the respondents that
Harichand Sarda transferred his right, title and
interest over the suit property in favour of the
dated 29.12.2006/30.12.2006.
iv. After acquisition of ownership over the suit
property the respondents informed the same to
the tenants and after death of Bindeshwari Singh,
his legal years became tenant. As they were
defaulter and there was bona fide requirement of
the suit premises to the respondents, they as
plaintiff filed a title suit being Title Suit No.
143/2007 against the legal years of Bindeshwari
Singh or their eviction from the suit premises. The
said suit was decreed on 24.07.2009. However,
when the judgment debtor did not vacate the suit
premises, the respondents filed the Title Execution
Case No. 17/2009.
5. On the basis of pleadings of the parties, in the Misc. Case No.
129/2009, following issues were framed: -
i. Whether the Misc. Petition is maintainable?
RSA No. 121 of 2024 Page8
ii. Whether the petitioners have non-evictable tenancy
right over the land, maliki right and possession over the
decreed premises of Title Suit No. 143/2007?
iii. Whether the decree holder/opposite party No. 1 & 2
have right, title and interest over the decreed property
of title suit number 143/2007.
iv. Whether the decree of Title Suit No. 143/2007 is
executable and binding upon the petitioners.
6. Both the parties adduced evidence of three witnesses each
respectively and also exhibited certain documents. After hearing
both the sides and after considering the evidence on record, the
Court of learned Munsiff No. 1 Cachar, Silchar, by the judgment and
order dated 30.09.2014, dismissed the Misc. Case No. 129/2009.
7. Being aggrieved by the aforesaid judgment and order the
appellants preferred an appeal which was registered as Misc. Appeal
No. 18/2014 before the Court of learned Civil Judge No.2, Cachar,
Silchar. The said Misc. Appeal, was also dismissed by the First
Appellate Court by its judgment and order dated 12thFebruary,
2021.
8. In the Regular Second Appeal filed by the appellants, on
31.03.2021, following substantial questions of law were formulated,
before admitting the aforesaid appeal: -
RSA No. 121 of 2024 Page9
i. Whether the appellant could establish his possessory
right in the premises since 1980, independent of the rights of
decree holder and thereby the decree holder is not entitled to
execute the decree.
ii. Whether Exhibit-7 issued on behalf of Sri Sri
Mahaprabhu Bigraha (deity) gives significant right to the appellant
to that of decree holder and whether the decree holder can execute
the decree against the appellant.
iii. Whether the learned Court below erred in law in not
taking cognizance of Exhibit-4, which is the tenancy agreement,
although it was not registered, same can be considered for
collateral purposes, read with other documents, which were issued
by Silchar Municipal Board.
9. During the course of the hearing of the second appeal, the
following additional substantial question of law was formulated: -
iv. Whether the judgment of the executing court as well as
First Appellate Court are perverse to the extent that it did not
consider the material on records, including the exhibited documents
except Exhibit-4, 5 and 7 for arriving at its finding.
10. Mr. G. N. Sahewala, Learned Senior Counsel for the appellant
has submitted that the respondent Nos. 1 and 2 had collusively filed
the Title Suit No. 143/2007 and a collusive decree was obtained, on
24.07.2009, in that suit. Learned Senior Counsel for the appellants
RSA No. 121 of 2024 Page10
has also submitted that the evidence on record clearly shows that
the appellants had independent right of possession in respect of the
suit property to that of the decree holder.
11. The learned counsel for the appellants have submitted that
the appellants are in possession of the land for more than 25 years
and has been doing business by paying rent, land revenue as well
as municipality tax, which were exhibited by the appellants before
the Trial Court.
12. The learned counsel for the appellants has submitted that the
appellants had exhibited the certified copy of the assessment
register of 1998-1999, in respect of holding No. 321 of Ward No. 6
showing that Ram Niranjan Singha was a tenant and he had
constructed permanent structure in the year 1945. He also submits
that the appellants have also exhibited the rent receipt showing
payment of annual rent by Ram Niranjan Singha to the landlord as
well as municipal tax receipt showing the payment of taxes in
respect of holdings by Ram Niranjan Singha.
13. The learned counsel for the appellants has also submitted that
the appellants has also exhibited, as Exhibit- 5, memorandum of
handing over of possession executed by Manik Suklabaidya on
receipt of valuable consideration. He has also exhibited trade license
and receipt showing payment of municipal taxes. The learned
counsel for the appellants has also submitted that though the
tenancy agreement was not registered and therefore, not
RSA No. 121 of 2024 Page11
considered by the Trial Court. However, the Trial Court as well as
First Appellate Court has erred in totally ignoring the said
agreement as the Court has power to look into the said document
for ascertaining whether the appellants were in possession of the
suit land.
14. To buttress his submission, the learned counsel for the
appellants has cited a judgment in the case of "Parikshit Dutta
versus Bijoy Kumar Agarwal" reported in "2017 (2) GLT 568,"
wherein it was observed that an unregistered document can be
taken into consideration for collateral purposes in a suit under
Section 6 of the Specific Relief Act.
15. The learned counsel for the appellants has submitted that the
Trial Court as well as First Appellate Court did not consider the
documentary evidence produced by the appellants before it and
thereby, ignored the independent right of the appellants as a tenant
over the land and as an owner over the building constructed
thereon.
16. The learned counsel for the appellants, therefore, submits that
the judgment of the Trial Court as well as the First Appellate Court
are liable to be interfered with as being perverse.
17. On the other hand, Mr. S. Dutta, the learned counsel for the
respondents has submitted that bare perusal of the first substantial
question of law formulated by this Court in this regular second
RSA No. 121 of 2024 Page12
appeal would show that same involves question of facts and not
question of law and therefore, no substantial questions of law
involves as regards the first question formulated by this Court. He
submits that the pleadings of the petition filed by the appellants
before the Trial Court under Order 21, Rule 97 and 101 of the Code
of Civil Procedure, 1908 would show that the pleadings are
contradictory to reliefs claimed by them in the case inasmuch as on
one side, the petitioners has claimed to be non-evictable tenant
under Section 5 of the Assam Non-Agricultural Areas Tenancy Act,
1955 whereas, on the other hand, they also claimed to have
ownership right over the building constructed over the said land. He
submits that the perusal of the order of the Trial Court would show
that it has considered all the documentary evidence produced by
the appellants as petitioners before the said proceeding, while
deciding the issue No. 2 and coming to the findings that the
petitioners have failed to prove their non-evictable tenancy right
over the land as well as maliki right and possession over the
decreed premises. He submits that the First Appellate Court has also
taken into consideration all the materials which were produced
before the Trial Court.
18. He also submits that the appellants, while preferring the first
appeal had not raised the issue of perversity and it has been raised
for the first time in this second appeal.
RSA No. 121 of 2024 Page13
19. The learned counsel for the respondents has also submitted
that the claim of the possessory right of the appellants on the basis
of Exhibit-4, which is a lease deed is also not tenable in as much as
same was not a registered deed. Moreover, he submits that though
the deed is shown to have been executed in the year 1980, on
perusal of the original exhibit, it appears that it has been drawn up
on a stamp paper which was purchased in the year 1987, which
itself shows that the Exhibit-4 was later on manufactured and
cannot be a trustworthy document.
20. The learned counsel for the respondents has submitted that
the appellants have failed to prove their non-evictable tenancy right
under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy
Act, 1955.
21. It is further submitted that the appellants has also failed to
prove that the Mahim Chandra Shukla Buddha ever acquired any
tenancy right from Sri Sri Mahaprabhu Bigraha and that the
predecessor-in-interest of the appellants have constructed
permanent structure over suit land within five years from the date
of agreement with the knowledge and acquiescence of the owner.
22. The learned counsel for the respondents has further
submitted that, it is only in the stage of second appeal the
appellants had for the first time taken the ground of their
RSA No. 121 of 2024 Page14
possessory right which were not raised earlier before the Trial Court
or before the First Appellate Court.
23. The learned counsel for the respondents has further
submitted that Exhibit-7 is a mere revenue paying receipt which in
itself does not indicate any semblance of right over the suit property
in favour of the appellants.
24. The learned counsel for the respondents has submitted that
since the documents i.e., Exhibit-4 apparently appears to be a
manufactured document, it cannot be even used for collateral
purpose.
25. The learned counsel for the respondents has submitted that
as no substantial questions of law is involved in this case as
formulated which would be in favour of the appellants. He,
therefore submits that this regular second appeal is liable to be
dismissed and the concurrent findings of the Trial Court as well as
First Appellant Court are to be upheld.
26. I have considered the rival submissions made by learned
counsel for both the sides and have gone through the materials
available on the record.
27. While considering the ambit of powers of the High Court
under Section 100 of the Code of Civil Procedure, 1908 to interfere
with the judgment of the First Appellate Court, the Supreme Court
of India has observed in the case of "Kondiba Dagadu Kadam Vs.
RSA No. 121 of 2024 Page15
Savitribai Sopan Gujar And Others" reported in "(1999)3 SCC 722" as
hereunder: -
" 2. Despite amendment by the amending Act 104
of 1976, Section 100 of the Code of Civil
Procedure appears to have been liberally
construed and generously applied by some Judges
of various High Courts with the result that the
drastic changes made in the law and the object
behind that appears to have been frustrated. The
amending Act was introduced on the basis of
various Law Commission Reports recommending
for making appropriate provisions in the Code of
Civil Procedure which were intended to minimise
the litigation, to give the litigant fair trial in
accordance with the accepted principles of natural
justice, to expedite the disposal of civil suits and
proceedings so that justice is not delayed, to avoid
complicated procedure, to ensure fair deal to the
poor sections of the community and restrict the
second appeals only on such questions which are
certified by the courts to be substantial questions
of law.
3. After the amendment a second appeal can be
filed only if a substantial question of law is
involved in the case. The memorandum of appeal
must precisely state the substantial question of
law involved and the High Court is obliged to
satisfy itself regarding the existence of such a
RSA No. 121 of 2024 Page16
question. If satisfied, the High Court has to
formulate the substantial question of law involved
in the case. The appeal is required to be heard on
the question so formulated. However, the
respondent at the time of the hearing of the
appeal has a right to argue that the case in the
court did not involve any substantial question of
law. The proviso to the section acknowledges the
powers of the High Court to hear the appeal on a
substantial point of law, though not formulated by
it with the object of ensuring that no injustice is
done to the litigant where such a question was
not formulated at the time of admission either by
mistake or by inadvertence.
4. It has been noticed time and again that
without insisting for the statement of such a
substantial question of law in the memorandum of
appeal and formulating the same at the time of
admission, the High Courts have been issuing
notices and generally deciding the second appeals
without adhering to the procedure prescribed
under Section 100 of the Code of Civil Procedure.
It has further been found in a number of cases
that no efforts are made to distinguish between a
question of law and a substantial question of law.
In exercise of the powers under this section the
findings of fact of the first appellate court are
found to have been disturbed. It has to be kept in
mind that the right of appeal is neither a natural
RSA No. 121 of 2024 Page17
nor an inherent right attached to the litigation.
Being a substantive statutory right, it has to be
regulated in accordance with law in force at the
relevant time. The conditions mentioned in the
section must be strictly fulfilled before a second
appeal can be maintained and no court has the
power to add to or enlarge those grounds. The
second appeal cannot be decided on merely
equitable grounds. The concurrent findings of
facts howsoever erroneous cannot be disturbed by
the High Court in exercise of the powers under
this section. The substantial question of law has to
be distinguished from a substantial question of
fact. This Court in Sir Chunilal V. Mehta and Sons
Ltd. v. Century Spg. & Mfg. Co. Ltd. [AIR 1962 SC
1314 : 1962 Supp (3) SCR 549 : 65 Bom LR 267]
held that:
"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
RSA No. 121 of 2024 Page18
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."
5. It is not within the domain of the High Court to
investigate the grounds on which the findings
were arrived at, by the last court of fact, being the
first appellate court. It is true that the lower
appellate court should not ordinarily reject
witnesses accepted by the trial court in respect of
credibility but even where it has rejected the
witnesses accepted by the trial court, the same is
no ground for interference in second appeal when
it is found that the appellate court has given
satisfactory reasons for doing so. In a case where
from a given set of circumstances two inferences
are possible, one drawn by the lower appellate
court is binding on the High Court in second
appeal. Adopting any other approach is not
permissible. The High Court cannot substitute its
opinion for the opinion of the first appellate court
unless it is found that the conclusions drawn by
the lower appellate court were erroneous being
contrary to the mandatory provisions of law
applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was
based upon inadmissible evidence or arrived at
without evidence.
RSA No. 121 of 2024 Page19
6. If the question of law termed as a substantial
question stands already decided by a larger Bench
of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme
Court, its merely wrong application on the facts of
the case would not be termed to be a substantial
question of law. Where a point of law has not
been pleaded or is found to be arising between
the parties in the absence of any factual format, a
litigant should not be allowed to raise that
question as a substantial question of law in
second appeal. The mere appreciation of the facts,
the documentary evidence or the meaning of
entries and the contents of the document cannot
be held to be raising a substantial question of law.
But where it is found that the first appellate court
has assumed jurisdiction which did not vest in it,
the same can be adjudicated in the second appeal,
treating it as a substantial question of law. Where
the first appellate court is shown to have
exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of
procedure requiring interference in second appeal.
This Court in Reserve Bank of India v. Ramkrishna
Govind Morey [(1976) 1 SCC 803 : AIR 1976 SC
830] held that whether the trial court should not
have exercised its jurisdiction differently is not a
question of law justifying interference."
RSA No. 121 of 2024 Page20
28. From above, it appears that the Apex Court has in very
unequivocal terms has observed that in a second appeal under
Section 100 of the Code of Civil Procedure, 1908 can be maintained
only when the conditions mentioned in the said sections are strictly
fulfilled, and that no Court has powers to add to or enlarge those
grounds.
29. It has also observed that second appeal cannot be decided
merely on equitable grounds. The concurrent findings of facts,
howsoever erroneous cannot be disturbed by the High Court in
exercise of the powers under Section 100 of the Code of Civil
Procedure, 1908.
30. In the present case, a plain reading of the first question
framed as a substantial question of law indicates that it cannot be
answered without reappreciating the facts. Since it is neither a
question of law nor a substantial question of law, it remains a pure
question of fact. In the considered opinion of this Court, such a
question can only be raised at the stage of first appeal and has
already been duly agitated by the appellants before the First
Appellate Court.
31. The Executing Court while considering the issue No. 2
formulated in the Misc. Case No. 129/2009, which was registered on
the basis of an application under Order 21 Rule 97 and 99 read with
Section 151 of the Code of Civil Procedure, 1908 filed by the
RSA No. 121 of 2024 Page21
present appellants before the Executing Court, while the decree
obtained by the respondents in Title Suit No. 143/2007 was put to
execution, has considered the evidence adduced by the appellants
as petitioners and has come to the findings that the
petitioners/present appellants have failed to prove the non-evictable
tenancy right over land, a maliki right and possession of the decreed
premises of the Title Suit No. 143/07 and the issue was decided
against the present appellants.
32. The First Appellate Court, while considering the Misc. Appeal
No. 18/2014, has also, while considering the point for determination
No. 1, which was formulated in the said appeal, as to whether the
Trial Court rightly decided the issue that the petitioners/appellants
do not have non-evictable tenancy rights over the suit land and
maliki right in possession over the suit premises, has taken into
consideration the evidence adduced by the present petitioners,
while coming to the finding that the Trial Court has correctly
decided the said issue. The First Appellate Court, while determining
the aforesaid point for determination, considered the evidence
adduced by the appellants as well as the impugned judgment of the
Executing Court, while arriving at the finding that the decision of the
Trial Court needs no interference. It has discussed in detail the
reasoning's for arriving at that finding in paragraph No. 16 to 23 of
the impugned judgment. As observed by the Apex Court in the case
of "Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar And Others"
RSA No. 121 of 2024 Page22
(Supra), in a case where from a given set of circumstances two
inferences are possible, one drawn by the lower appellate court is
binding on the High Court in second appeal. Adopting any other
approach is not permissible. The High Court cannot substitute its
opinion for the opinion of the first appellate court unless it is found
that the conclusions drawn by the lower appellate court were
erroneous being contrary to the mandatory provisions of law
applicable or its settled position on the basis of pronouncements
made by the Apex Court, or was based upon inadmissible evidence
or arrived at without evidence. No such circumstances exist in the
present appeal necessitating any interference by this court in the
concurrent findings of the Trial Court and the First Appellate Court.
33. This Court is of the considered opinion that the first
substantial question of law framed in this regular second appeal is
not, in fact, a substantial question of law. It is purely a question of
fact that requires a reappreciation of evidence. As previously
discussed, under Section 100 of the Code of Civil Procedure, the
High Court may exercise jurisdiction only if the appeal involves
substantial questions of law. However, this Court finds that the first
question formulated in this appeal does not qualify as a question of
law, let alone a substantial one. Given the restriction imposed by
Section 100 of the Code of Civil Procedure, 1908, this Court cannot
revisit or reappreciate questions of fact at this third stage of
litigation.
RSA No. 121 of 2024 Page23
34. As regards the substantial question No. 2 formulated in this
appeal as to whether Exhibit-7 gives significant independent right to
the appellants vis-a-vis the decree holder and whether the decree
holder can execute the decree against the appellants, it appears
that Exhibit-7 is a land revenue paying receipt. This Court is of the
considered opinion that in view of the evidence adduced by the
respondents in form of Exhibit-A, i.e. the registered sale deed No.
12 dated 03.01.1958, Exhibit-B, i.e. mutation in the name of Sri Sri
Mahaprabhu Bigraha and Harichand Sarda as well as Exhibit-C, i.e.
sale deed No. 915 dated 29.12.2006 by which the respondents have
been able to show their title over the suit property, a mere
exhibition of a land revenue receipt is not enough to show the non-
evictable tenancy right of the scheduled land of the appellants as
rightly held by the Executing Court as well as upheld by the First
Appellate Court. The appellants as petitioners before the Executing
Court have failed to contradict the evidence adduced by the
respondents in form of Exhibit-A, B and C which remain intact, and
therefore, the mere exhibition of a land revenue receipt in form of
Exhibit-7 by the present appellants is not enough to prove their
non-evictable tenancy right over the scheduled land as has been
rightly held by the both the Court below. Therefore, this question is
also decided against the appellants.
35. As regards the substantial question No. 3 formulated in this
second appeal as to whether the Trial Court erred in law by not
RSA No. 121 of 2024 Page24
taking into consideration the Exhibit-4, i.e. the tenancy agreement,
which is an unregistered deed, for collateral purpose, this Court
after considering the submissions made by the learned counsel for
both the sides is of the opinion that though an unregistered deed
can be taken into consideration for collateral purposes for proving
possession where the possession is one of the main question
involved. However, in the instant case, the appellants by filing the
petition under Order 21 Rule 97 and 99 of the Code of Civil
Procedure, 1908 have claimed to be the non-evictable tenant in
respect of the scheduled land and owner in respect of the building
constructed thereon, which the appellants have failed to prove as
the said unregistered deed of agreement which is Exhibit-4 is not
sufficient to prove the non-evictable tenancy right and as well as
the ownership right over the building constructed over the suit
property as claimed by the appellants.
36. Both the Courts below, i.e. the Trial Court as well as the First
Appellate Court were right in coming to the finding that Exhibit-4
being unregistered document cannot be taken into consideration.
Though, much discussion was not made about the said exhibit,
however, on bare perusal of the said exhibit, it appears that the
said deed of agreement was executed in the year 1980, whereas
the stamp paper on which it was drafted was purchased in the year
1987, which itself makes the said exhibit unreliable and therefore,
this document in the considered opinion of this Court may not be
RSA No. 121 of 2024 Page25
taken into consideration even for collateral purpose as same does
not appear to be genuine document. Therefore, this question is also
decided against the appellants.
37. As regards the substantial question No. 4 is concerned, merely
taking a plea of perversity is not enough. Once the plea of
perversity is taken, it is incumbent upon the appellant to show that
the impugned judgment was based upon inadmissible evidence or
arrived at without evidence. However, the appellants have failed to
relieve the said burden. Moreover, no such plea was taken by the
appellants before the First Appellate Court. A bare perusal of the
judgment passed by the Executing Court as well as First Appellate
Court, it appears that, it has duly considered the evidence adduced
by the petitioners as well as by the opposite parties/respondents
while arriving at the conclusion that the appellants have failed to
prove the non-evictable tenancy right over the disputed land as well
as ownership right over the building in question, whereas, the
documents adduced by the respondents as Exhibit-A, B and C which
could not be contradicted were the basis of arriving at the
conclusion that the respondents have ownership right over the
scheduled property.
38. This Court, is therefore, of the considered opinion that the
judgment of both the Courts below while arriving at the concurrent
findings in favour of the respondents and against the present
RSA No. 121 of 2024 Page26
appellants, was in no manner perverse and therefore, this question
is also decided against the appellants.
39. In view of the discussions and the reasoning's given in the
foregoing paragraphs, the questions formulated by this Court in this
second appeal are decided against the present appellants.
40. This Court, thus, comes to the findings that this regular
second appeal lacks merit.
41. Accordingly, this regular second appeal is dismissed with cost.
JUDGE
Comparing Assistant
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