Gauhati High Court
Appellants/Defendants vs Mustt Rezaun Nessa on 25 February, 2025
GAHC010119192016
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RSA No. 223/2016
1. OSIA BEWA,
W/O LATE MOHAMMAD SK.
2. RIFIQUL
S/O LATE MOHAMMAD SK
3. NUR NESSA BIBI
D/O LATE MOHAMMAD SK.
4. NOZIMA BIBI
D/O LATE MOHAMMAD SK
5. FULMOTI BIBI
D/O LATE MOHAMMAD SK.
6. NILMOTI BIBI
D/O LATE MOHAMMAD SK.
7. ON THE DEATH OF SORHAB ALI
HIS LEGAL HEIRS
NAMELY
7.1 JARINA KHATUN
W/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.2 SOBEDA BEGUM
D/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
RSA 223/2016 Page 1 of 21
DIST- DHUBRI
ASSAM
7.3 ZIYARUL HAQUE
S/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.4 SORFIA BEGUM
D/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.5 ZAKIRUL ISLAM
S/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.6 SHOFIYA BEGUM
D/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.7 RIYAZUL HOQUE
S/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.8 RAJU SK
S/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
RSA 223/2016 Page 2 of 21
DIST- DHUBRI
ASSAM
7.9 RIZU SK
S/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.10 SHAHAJAN ALI
S/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
7.11 SOPIYA BEGUM
D/O LATE SORHAB ALI
R/O HATSINGIMARI
PS SOUTH SALMARA
DIST- DHUBRI
ASSAM
8. ABIAL HAQUE
S/O LATE SAHAJAL SK.
9. SEFALI KHATUN BEWA
BEWA WIFE OF LATE ANOWAR HUSSAIN
10. SONA BANU
S/O LATE ANOWAR HUSSAIN
11. ALIMON KHATUN
D/O LATE ANOWAR HUSSAIN
12. ANJUN KHATUN
DAUGHTER LATE ANOWAR HUSSAIN
13. MITYA KHATUN
D/O LATE ANOWAR HUSSAIN
ALL ARE R/O HATISINGIMARI
P.S. SOUTH SALMARA
DIST. DHUBRI
RSA 223/2016 Page 3 of 21
......Appellants/Defendants.
VERSUS
1. MUSTT REZAUN NESSA,
W/O LATE SORHAB ALI SARKAR, R/O CHAR KASARIPARA,
P.S. SOUTH SALMARA, DIST. DHUBRI.
......Respondent/Plaintiff.
2. REAZUL HAQUE
S/O LATE RIAZUL HAQUE
R/O MANKACHAR
P.S. MANKACHAR
DIST. DHUBRI.
......Proforma Defendant.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Mr. T.J. Mahanta, Sr. Adv.,
Mr. D. Mahanta. ......Advocates.
For the Respondent : Mr. A. Islam (R1). ......Advocate.
Dates of Hearing : 26.11.2024
Date of Judgment : 25.02.2025
JUDGMENT AND ORDER
Heard Mr. T.J. Mahanta, learned Senior Counsel, assisted by Mr. D.
Mahanta, learned counsel for the appellants/defendants and also heard
Mr. A. Islam, learned counsel for the respondent No.1/plaintiff.
2. This second appeal, under Section 100 of the Code of Civil
Procedure, 1908 is directed against the judgment and decree, dated
24.06.2016, passed by the learned Civil Judge, Dhubri, (First Appellate
Court in short) in Title Appeal No.74/2013. It is to be noted here that vide
impugned judgment and decree, dated 24.06.2016, the learned Civil
Judge, Dhubri, has dismissed the appeal and thereby affirmed the
judgment and decree dated 31.08.2013, passed by the learned Munsiff
No.1, Dhubri, (Trial Court in short) in Title Suit No.267/1997.
3. The background facts leading to filing of the present appeal is
briefly stated as under:-
"The respondent No.1 - Smt. Rezaun Nessa as plaintiff, had
instituted a title suit, being Title Suit No.267/1997, for recovery of
possession of a plot of land measuring 1 bigha 1 katha 18 lecha.
Her pleaded case is that her brother Reazul Haque, who has been
arrayed as proforma defendant No.5 in the title suit, was the owner
of the suit land, measuring 1 bigha 1 katha 18 lecha, covered by
Dag No.105 (new)/ 93(old) of Patta No.51, situated at Hatsingimari
village. Thereafter, her brother Reazul Haque orally gifted the
aforementioned land to her by delivering possession of the suit
land to her and since then she has owned the land having the
right, title, interest and possession of the same. Then in the year
1993, the defendants, who were affected by flood, approached her
for allowing them to stay over the suit land. And accordingly, the
plaintiff had permitted them to stay over the suit land temporarily
by constructing temporary thatched houses. Even after recession of
the flood also the defendants requested the plaintiff to allow them
to stay over the suit land for more time. And accordingly, the
plaintiff allowed the same. Thereafter, in the month of May, 1997
she has asked the defendants to vacate the land, which the
defendants had refused and therefore, the respondent/plaintiff had
instituted the title suit, for declaration of right, title and interest
over the suit land and also for recovery of the khas possession.
In this context it is worth mentioning that a portion of land,
measuring 18 lecha, was acquired by the State of Assam during the
pendency of the title suit, for construction of road and thereafter,
the plaintiff had filed an amendment petition to incorporate the
aforesaid fact and to amend the schedule of the plaint. And
accordingly, the same was allowed and now the claim is for 1 bigha
1 katha of land, instead of 1 bigha 1 katha 18 lecha.
The defendants‟ had contented the suit by filing written
statement and its pleaded case is that the suit is not maintainable
and it is bad in law for non-joinder of necessary parties and they
denied the fact that they are the permissive occupier under the
plaintiff in respect of the suit land. Their case is that the suit land
originally belongs to Akbar Ali, the father of the defendant No.2
Md. Surab Ali and the said Akbar Ali is not made a party and as
such, the suit is bad for non-joinder of necessary parties. Further
case of the defendants is that the brother of the plaintiff never own
and possesses the suit land and as such, he does not have any
legal right to gift the suit land to the plaintiff. And as such, the
plaintiff cannot acquire any right, title and interest over the suit
land and the defendants are residing over the suit land by
constructing their residential houses and under such circumstances,
they contended to dismiss the suit.
It is to be noted here that the respondent No.5, the brother
of the plaintiff had not contested the suit for which the learned
Courts below had proceeded against him ex-parte.
Upon the aforementioned pleadings of the parties, the
learned Trial Court had framed following issues:-
1. Whether the plaintiff has title over the suit land?
2. Whether the defendants are permissive possessor of the suit
land under the plaintiff?
3. To what relief the plaintiff is entitled to get?
Thereafter, two additional issues were also framed which read as
under:-
1. Whether the suit is bad for non-joinder of necessary parties?
and
2. Whether the suit is barred by limitation?
Thereafter, hearing both the parties, the learned Trial Court
has decreed the suit in favour of the plaintiff.
Being aggrieved, the appellants/defendants preferred the
regular first appeal, being Title Appeal No.74/2013, before the
Court of learned Civil Judge, Dhubri. Thereafter, the learned Civil
Judge, Dhubri, had formulated only one point for determination as
under:-
Whether the learned Trial Court has rightly
decided the Issue Nos.(1) and (2), wherein it has
been held that the plaintiff has the right, title
and interest over the suit land and the
defendants are permissive occupier under the
plaintiff?
Thereafter, hearing learned Advocates of both the parties
and also considering the materials made available before the
learned Court, the learned Civil Judge, Dhubri, had dismissed the
appeal and thereby affirmed the judgment and decree passed by
the learned Munsiff No.1, Dhubri, in Title Suit No.267/1997."
4. Being aggrieved, the appellants approached this Court by filing the
present second appeal, which was admitted on the following substantial
questions of law:-
(i) Whether an occupancy tenant within the meaning
the Assam (Temporarily Settled Areas) Tenancy
Act, 1971 has a right to convey title in land by
means of oral gift?
(ii) Whether the omission to frame an issue as regard
the claim of oral gift made by the plaintiff
would have a fatal bearing on the outcome of the
suit?
5. Mr. Mahanta, learned Senior Counsel for the appellants‟, submits
that the learned First Appellate Court, while deciding the appeal has not
framed any issue on the point of non-joinder of necessary parties. Mr.
Mahanta has pointed out that the State of Assam is a necessary party in
the title suit as well as in the title appeal. But, none of the Courts below
had framed any issue on that point. Secondly, Mr. Mahanta submits that
no issue was framed in respect of whether the brother of the plaintiff is
entitled to make oral gift and non-framing of issue and consequent
absence of discussion and decision, is a ground for remanding the matter
to the learned First Appellate Court, under Order 41 Rule 31 of the Code
of Civil Procedure and therefore, Mr. Mahanta has contended to remand
the matter to the learned First Appellate Court. In support of his
submission, Mr. Mahanta has referred to a decision of Hon‟ble Supreme
Court in Md. Hesabuddin & Ors. v. Md. Hesaruddin & Ors.,
reported in MANU/GH/0010/1984.
6. Per contra, Mr. Islam, learned counsel for the respondent
No.1/plaintiff, submits that the suit land was originally under a Jamindar
and the same was acquired by the State of Assam under the Assam State
Acquisition of Zamindaries Act, 1951 as per Section 4(6) of the said Act
and that thereafter the land was settled in favour of the brother of the
plaintiff/respondent under the Assam Land Holding (Adoption of
Relationship under the Assam Land and Revenue Regulation,
1886 in the Acquired Permanently Settled Estates) Act, 1974
vide Section 3 and 4 of the Act and the brother of the plaintiff/respondent
had paid revenue to the State of Assam and the said revenue receipts
were exhibited by the plaintiff during the trial and as the land was settled
in favour of the brother of the plaintiff/respondent, the brother of the
plaintiff/respondent had every right to make oral gift in favour of the
plaintiff and the same has been established by adducing cogent evidence
and the same has not been disputed by the appellants‟ herein.
6.1. Mr. Islam, further submits that the plaintiff had categorically stated
that her brother had made the oral gift in her favour and thereafter, he
went to the land and handed it over to her and she has accepted the
same and since then, she has been in possession and that the defendants
are permissive occupier under the plaintiff/respondent and as such, Mr.
Islam submits, there is no question of making the State of Assam as
necessary party as no relief is being sought for against the State of
Assam and that the brother of the plaintiff has been made proforma
defendant No.5, but he chooses not to appear before the Court and the
gift is between the plaintiff and the defendant No.5 and being a third
party, the appellants herein cannot question the said gift and the
ingredients of oral gift had been fully proved and the appellants were
given permission to stay in the year 1993 and the husband of the plaintiff
died in the year 1995 and then the appellants had in fact started
construction of the house over the suit land.
6.2. Mr. Islam, also submits that the brother of the respondent/plaintiff
is not a „tenant‟ as defined under sub-section (17) to Section 3, the
Assam (Temporarily Settled Areas) Tenancy Act, 1971 as he
was holding the land under the Government after acquisition of the land
by the Government of Assam. Further Mr. Islam submits that no prejudice
is caused to the appellant by non-framing of issue on the point of gift
deed and no prejudice is shown to have been caused to them and there
is no point for remanding the matter to the learned First Appellate Court
and therefore, it is contended to dismiss the appeal, as no substantial
question of law is involved herein. In support of his submission, Mr. Islam
has referred to a decision of this Court in Sri Ananta Prasad Sahu v.
Sri Gopal Sahu [RFA No.32/2017, dated 24.09.2019] and in
National Insurance Co. Ltd. v. Mrs. Sarzina Begum & Ors.
[MFA No.220/2010, dated 25.04.2018].
7. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also gone through the decisions relied
upon by learned Advocates of both the parties.
8. A careful perusal of the record of the learned trial Court, I find that
the learned trial Court had dealt with the issue of title in the Issue No.1
i.e. whether the plaintiff had title over the suit land. And thereafter,
discussing the evidence of the plaintiff and three witnesses, the learned
trial court arrived at a finding that earlier the suit land was owned and
possessed by proforma defendant No.5 and subsequently, he had gifted
the same to the plaintiff.
9. It also appears that the learned trial Court had discussed the evidence
of four witnesses examined by the plaintiff and 11 numbers of documents
exhibited by her. Further, it appears that the learned trial Court had also
discussed the evidence adduced by five witnesses of the defendants‟ and
7 numbers of documents‟ exhibited by them.
9.1. That perusal of the evidence of P.W.1, the plaintiff, reveals that her
brother was the owner of the suit land having right, title and interest over
the same and in support of the same she had produced and exhibited the
Final Khatian as Exhibit-1, which reveals that the proforma defendant
No.5 was a riot in respect of the suit land. P.W.1 had further produced
and exhibited the revenue payment receipts as Exhibit-2, 3 and 4, paid by
her brother and also she had exhibited the revenue payment receipts as
Exhibit 5, 7 and 8, paid by her and the same reveals that land revenue
was paid by the proforma defendant No.5 and also by the plaintiff and
the same were collected by the State of Assam. The plaintiff had also
produced and exhibited Land Holding Certificate as Exhibit-9, issued by
the Asstt. Settlement Officer, Mankachar, which shows that the suit land
was originally mutated in the name of the proforma defendant No.5 and
its earlier Dag number was 93 and present Dag No. is 105.
9.2. It also appears that the defendant No.1 - Sorhab Ali, had examined
himself as D.W.1 and he had produced one Pattani Dakhilas, dated
15.11.1963, 01.10.1964 and 20.02.1965 as Exhibit - A, B and C,
pertaining to the suit land, to prove that the suit land was owned by
Akbar Ali. The defendants had also produced a Government Notification-
Exhibit -D, which shows that the land belonging to one Khaimuddin
Prodhani was acquired by the State of Assam under the Assam
Acquisition of Zamindaries Act, 1951 and Akbar Ali was the tenant in
respect of the suit land under Khaimuddin Prodhani.
9.3. On the basis of the aforesaid evidence and documents of the
plaintiff‟s/respondent‟s side, the learned trial Court had arrived at a
finding that earlier the suit land was owned and possessed by proforma
defendant No.5. And subsequently, he had gifted the same to the
plaintiff/respondent and that the oral and documentary evidence of the
defendants had failed to prove the fact that the suit land originally
belongs to late Akbar Ali and after his death late Anowar Ali inherited the
same and from Anowar Hussain present defendants inherited the same.
9.4. The learned first appellate Court also, on the basis of aforesaid
evidence and documents of the plaintiff‟s side arrived at a finding that the
plaintiff had discharged her initial burden of proving that the suit land
originally belonged to her brother i.e. proforma defendant No.5. The
learned first appellate Court also found that Exhibit -1, the Final Khatian
is a document of title and it carries a legal presumption as regard its
contents and the same stand as a conclusive proof as regard the facts
stated therein, unless contrary is proved. Further, the learned first
appellate Court had held that Exhibit -2 to 8 though not document of
title, yet, the same, together with Exhibit-1, goes a long way to show that
proforma defendant No.5 was the occupancy tenant of the suit land and
after the same was acquired by the State of Assam, under the Assam
Acquisition of Zamindaris Act, 1951, he had paid the revenue in respect
of the suit land to the State of Assam directly and Exhibit-9 shows that
the suit land was originally mutated in the name of the proforma
defendant No. 5 and thereafter in the name of the plaintiff. The learned
first appellate Court also held that a portion of land, measuring 18 lecha,
was acquired by the State of Assam during the pendency of the title suit,
for construction of road and thereafter compensation was paid to the
brother of the plaintiff/respondent.
9.5. The learned first appellate Court also arrived at a finding that the
Exhibit-A, B and C does not mentioned the description of the suit land
and also from the Exhibit-D, it cannot be ascertained as to whether the
land pertaining to Exhibit - A, B and C were acquired and besides,
Exhibit-D is a photostat copy, which is not admissible in evidence as such
the same cannot be termed as any documents of title and as such, the
same does not confer any right, title or interest upon Akbar Ali over the
suit land. Thereafter, the learned first appellate Court had arrived at a
finding that the defendants had failed to establish that the suit land
belonged to Akbar Ali and thereafter, affirmed the finding so recorded by
the learned trial Court on the said issue.
9.6. I have considered the finding so recorded by the learned trial Court
as well as finding of the learned first appellate Court, in the light of the
submission of learned Advocates of both sides. And I find substance in
the submission of Mr. Islam, the learned counsel for the respondent
herein, who had categorically submitted that the suit land was acquired
by the State of Assam, as per Section 4(6) of the Assam State Acquisition
of Zamindaries Act, 1951 and thereafter, the land was settled in favour of
the brother of the plaintiff/respondent under Section 4 of the Assam
Land Holding (Adoption of Relationship under the Assam Land
and Revenue Regulation, 1886 in the Acquired Permanently
Settled Estates) Act, 1974, (herein after Act of 1974).
9.7. It is to be noted here that Section 4 of the Act of 1974, provides
for conferment of land-holders‟ status to persons holding land under
Government. Sub-Section 1 to said section provides that any persons, on
commencement of this Act, holding land directly under the Government,
in the area under any of the provisions of the Assam State Acquisition of
Zamindaris Act, 1951 shall continue to hold the same under the
Regulation with the status of a land holder subject to payment of such
land revenue as may be assessed as per provision under the Regulation.
9.8. Further, Section 3 of the said Act provides that the provision of the
said shall override the other law if the same or any custom or usage or
any contract express or implied inconsistent with the provision of the Act.
9.9. It is not in dispute that the suit land was originally under a
Jamindar and the same was acquired by the State of Assam, under
Section 4(6) of the Assam State Acquisition of Zamindaries Act, 1951 and
since the brother of the plaintiff/respondent was holding land under the
Government and since Section 4 of the Act of 1974 conferred land-
holders‟ status to persons holding land under Government and since the
land in question was settled in favour of the brother plaintiff/respondent
as it appears from the final Khatian (Exhibit-1) and the brother of the
plaintiff/respondent had paid revenue to the State of Assam, he has
every right to make oral gift in favour of the plaintiff/respondent.
9.10. It is worth mentioning here in this context that both the learned
court below had arrived at a concurrent finding in this regard. Form a
careful perusal of the evidence so adduced and also on careful
examination of the documents, so exhibited by both the parties, this
court is of the considered opinion that there appears to be no perversity
in the findings, so recorded by both the learned courts below in respect
of the issue No. 1, which covers the 1st substantial question of law, so
framed by this court here in this appeal.
9.11. It also appears that the brother of the respondent/plaintiff is not a
„tenant‟ as defined under sub-section (17) to Section 3, the Assam
(Temporarily Settled Areas) Tenancy Act, 1971 as he was
holding the land under the Government after acquisition of the land by
the Government of Assam. Proviso to sub-section (17) to Section 3 of the
said Act defined tenant. It provides as under:-
'tenant' means a person who cultivates or holds the
land of another person, and is, or but for a
special contract (expressed or implied) would be,
liable to pay rent for that land to that other
person, and includes a person who under system
generally known as 'Adhi'(whether Guchiadhi or
Gutiadhi), barga, 'chukti', 'bhag' or 'chukani'
cultivates the land of another person on condition
of delivering a share or quantity of the produce of
such land to that person;
Provided that a person who cultivates or holds
land immediately under the State Government is not
a tenant within the meaning of this definition.
9.12. This being the legal position the brother of the plaintiff/respondent
never comes under the ambit of the definition of „tenant‟, as he was
holding the land under the Government, after acquisition of the land by
the Government of Assam. Mr. Islam, the learned counsel for the
respondent/plaintiff had rightly pointed this out and I find substance in
the same. Thus, having considered all the facts and circumstances this
court is of the view that the 1st substantial question of law is not involved
in this second appeal and accordingly, the same stands answered.
10. Now, coming to the second substantial question law, so framed
herein this appeal, I find that admittedly, none of the Courts below had
framed any issue on the question of oral gift made by the brother of the
respondent/plaintiff in respect of the suit land. But, it appears that the
learned first appellate Court, though, had not framed any issue, yet, it
had made elaborate discussion on the said point from paragraph No. 28
onwards in the judgment and thereafter, arrived at a conclusion that the
brother of the respondent/plaintiff, namely, Reazul Haque is the owner of
the suit land and the same stands established from the final Khatian
(Exhibit-1), which indicates that the land was acquired from Raj Estate
and as such, it cannot be said that omission to frame charge as regard
the said oral gift is fatal bearing upon the outcome of the suit.
10.1. It is to be noted here that this issue has been dealt with by the
Hon‟ble Supreme Court in the case of Mrugendra Indravan Mehta and
Others vs. Ahmadabad Municipal Corporation, reported in
(2024) 6 SCR 594, wherein it was held that even if the first appellate
Court does not separately frame the points for determination arising in
the first appeal, it would not prove fatal as long as that Court deals with
all the issues that actually arise for deliberation in the said appeal.
10.2. Mr. Islam, learned counsel for the respondent No.1 has rightly
pointed this out and the decision referred by him in Mrs. Sarzina
Begum (supra) and in Ananta Prasad Sahu (supra) also strengthen
his submission and as such, the substantial question of law in Issue
No.(2) has to be answered in negative and accordingly, the same stands
answered.
10.3. That, regarding the submission of Mr. Mahanta, the learned Senior
Counsel for the appellants‟/defendants‟, I find that the law relating to
joinder and non-joinder of necessary parties is well settled in catena of
decisions of Hon‟ble Supreme Court. Basically two tests are to be satisfied
for determining the question as to who is a necessary party. Reference
in this context can be made to decision of Hon‟ble Supreme Court in
Ramesh Kundanmal vs. Municipal Corporation of Greater
Bombay reported in (1992)2 SCC 524. In the said case, wherein, in
Paragraph 6, Hon‟ble Supreme Court has observed thus:-
‚6.......................A necessary party is one
without whom no order can be made effectively. A
proper party is one in whose absence an effective
order can be made but whose presence is necessary
for a complete and final decision on the
question involved in the proceeding. The addition
of parties is generally not a question of initial
jurisdiction of the Court but of a judicial
discretion which has to be exercised in view of
all the facts and circumstances of a particular
case.‛
10.4. Thus, these tests are -
(i) there must be a right to some relief against
such party in respect of the controversies
involved in the proceedings;
(ii) no effective decree can be passed in the
absence of such party.‛
10.5. In the instant case, it appears from the record of the learned
courts below that the suit land was acquired from Raj Estate by the
State of Assam, under the Assam State Acquisition of Zamindaries Act,
1951 under Section 4(6). And thereafter, the said land was settled in
favour of the brother of the respondent/plaintiff and his name find
mention in the final Khatian (Exhibit-1) and he also used to pay revenue
to the State of Assam and produced the relevant receipts before the
Court and these documents goes a long way to show that the land in
question belonged to the brother of the respondent/plaintiff, namely,
Reazul Haque who had gifted the same in favour of the
respondent/plaintiff and as such, the question of making the State of
Assam as party does not arise and no relief was sought for against the
State of Assam.
10.6. I have considered the submission of Mr. Mahanta, learned Senior
counsel for the appellants in the light of given facts and circumstances of
the record and the submission of Mr. Mahanta left this Court unimpressed
in view of the facts and circumstances discussed herein above and as
such, there is no question of remanding the matter back to the learned
first appellate Court again.
10.7. It appears that the learned trial Court as well as first appellate
Court, while arriving at the decision, had discussed the evidence adduced
by both the parties and also the documents relied upon by them and
thereafter, arrived at a finding and the same suffers from no perversity
requiring any interference of this Court and that being so, the second
substantial question of law, so framed by this court, is found to be not at
all involved here in this case, and even if it is involved, the same stands
answered in negative.
11. It is, however, well settled in a catena of decision of Hon‟ble
Supreme Court that sitting in second appeal; this Court cannot re-
appreciate the facts and disturb the concurrent finding of facts by the
learned courts below. It is also well settled that in order to admit an
appeal, under Section 100 of the C.P.C., there must be substantial
question of law.
11.1. Reference in this context can be made to a decision in Chandrika
Singh (Dead) by LRS & Anr. vs. Sarjug Singh & Anr.,
reported in (2006) 12 SCC 49, wherein its has been held that the
High Court, under Section 100 CPC, has limited jurisdiction. To deal with
cases having a substantial question of law, the Court has observed as
under:-
‚12. ... While exercising its jurisdiction under
Section 100 of the Code of Civil Procedure, the High
Court is required to formulate a substantial
question of law in relation to a finding of fact.
The High Court exercises a limited jurisdiction in
that behalf. Ordinarily unless there exists a
sufficient and cogent reason, the findings of fact
arrived at by the courts below are binding on the
High Court...‛
11.2. Again, in the case of Chacko & Anr. v. Mahadevan, reported
in (2007) 7 SCC 363, while dealing with the jurisdiction under Section
96 and 100 CPC, this Court laid down as under:-
‚6. It may be mentioned that in a first appeal filed
under Section 96 CPC, the appellate court can go
into questions of fact, whereas in a second appeal
filed under Section 100 CPC the High Court cannot
interfere with the findings of fact of the first
appellate court, and it is confined only to
questions of law.‛
11.3. In the case of Hero Vinoth v. Seshammal, reported in
(2006) 5 SCC 545, the principles relating to Section 100 CPC is
summarised as under:-
(i) An inference of fact from the recitals or contents
of a document is a question of fact. But the
legal effect of the terms of a document is a
question of law. Construction of a document
involving the application of any principle of law
is also a question of law. Therefore, when there
is misconstruction of a document or wrong
application of a principle of law in construing a
document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case
(that is, a question, answer to which affects the
rights of parties to the suit) will be a
substantial question of law, if it is not covered
by any specific provisions of law or settled
legal principle emerging from binding precedents,
and, involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is
clear, either on account of express provisions of
law or binding precedents, but the court below
has decided the matter, either ignoring or acting
contrary to such legal principle. In the second
type of cases, the substantial question of law
arises not because the law is still debatable,
but because the decision rendered on a material
question, violates the settled position of law.
(iii) The general rule is that High Court will not
interfere with the concurrent findings of the
courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are
where:-
(i) the courts below have ignored material
evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously;
or
(iii) the courts have wrongly cast the burden of
proof. When we refer to ‚decision based on no
evidence‛, it not only refers to cases where
there is a total dearth of evidence, but also
refers to any case, where the evidence, taken
as a whole, is not reasonably capable of
supporting the finding.
12. In the result, I find no merit in this appeal, and accordingly, the
same stands dismissed, leaving the parties to bear their own costs. Send
down the record of the learned Courts below with a copy of this
judgment and order.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
