Defendant vs Plaintiff
2021 Latest Caselaw 99 Tri

                          Page 1 of 26




               HIGH COURT OF TRIPURA
                 A_G_A_R_T_A_L_A

                    RSA. No. 42 of 2019

     Sankar Acharjee, son of late Prangopal Acharjee,
     R/O Vill: Champaknagar, (near Panchayet Office),
     P.O. & P.S. Jirania, District: West Tripura.

                               .....Defendant-appellants

                      -V E R S U S-


     Smt. Rakhi Acharjee, wife of Sri Biswajit
     Acharjee, daughter of Sri Haricharan Acharjee, R/O
     Krishnagar, Natun Palli P.O. Agartala, P.S. West
     Agartala, District: West Tripura.
     Smt. Ratna Acharjee, wife of Sri Pradip Acharjee,
     daughter Sri Haricharan Acharjee, R/O Badharghat,
     Shree Palli, P.O. O. N. G. C. , P.S. Amtali, District:
     West Tripura.
     Smt. Rita Acharjee, wife of Sri Alak Acharjee,
     daughter of Haricharan Acharjee, R/O Jirania,
     N.I.T. Road, P.O. & P.S. Jirania, District: West
     Tripura.

                               ..... Plaintiff-respondents

B_E_F_O_R_E HON'BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. R. G. Chakraborty, Advocate. For Respondent(s) : Mr. N. Chowdhury, Advocate.

Date of hearing       :     31.08.2020
Date of judgment
And order             :     03/02/2021
Whether fit for
reporting             :     YES





                 J_ U_ D_ G _M_ E_ N_ T

Heard Mr. R. G. Chakraborty, learned counsel

appearing for the appellant and Mr. N. Chowdhury, learned

counsel appearing for the respondents.

[2] This is an appeal under Section-100 of the Civil

Procedure Code, 1908, against the judgment and decree

dated 09.04.2019 and 23.04.2019 respectively in T.A. No.

33 of 2017 passed by the Addl. District Judge, West Tripura,

Agartala, Court No.2 whereby, the appeal filed by the

plaintiff, i.e. the respondent under this appeal was allowed

by setting aside the judgment and decree dated 07.04.2017

passed by the learned Civil Judge, Sr. Division, Court No.1

in T.S. 121 of 2015.

[3]        Briefly        stated,             the            plaintiff-

respondents(hereinafter    referred      to   as    „plaintiff‟),   had

instituted a suit for declaration of right title and interest

along with consequential relief for recovery of possession

and perpetual injunction against the defendant-appellant

(hereinafter referred to as the defendant) under this appeal

and their men and agents from interfering with the peaceful

possession over the suit land measuring 0.5 acres under

Mouja: Purba Debendranagar, appertaining to Touji No.

324, old Khatian No. 769 Part and present Khatian No.

1377, Old C.S. Plot No. 6306/P appertaining to R.S. Plot No.

9962/P, classified as „Nal‟ with specific boundary as

described in the plaint.

[4] According to the plaintiff, the suit land along with

other lands were originally belonged to one Anadi Krishna

Acharjee and after his death, his son namely, Haricharan

Acharjee (father of the plaintiff) and Ratan Acharjee @

Ratan Krishna Acharjee had succeeded the property by

inheritance. Both of them during their lifetime had entered

into an amicable partition of the entire property on the

strength of a registered deed of partition bearing No. 1-

5337 dated 11.08.2014. As per partition, the share of father

of the plaintiffs was measured at 1.04 acres out of which

land measuring 0.24 acres of „Nal‟ class of land under

Khatian No.769/2, 0.53 acres „Bastu-Nal‟ class of land

under Khatian No. 769/2 and land measuring 0.12 acres

plus half of 0.30 acres i.e. 0.15 acres in total 0.27 acres

under Khatian No.769/2.

[5] The father of the plaintiffs out of his said share

had gifted a land measuring 0.51 acres from Khatian No.

769/2 and 769/3 of Plot No.6285-6306 corresponding to

present Plot No. 9956, 9957, 9958 and 9962 to the

plaintiffs by dint of a registered gift deed bearing No.1-5927

dated 06.07.2015. Thereby, the plaintiffs had claimed to

have acquired title over the suit land on the strength of the

said gift deed and were in possession thereof till 25 th

October, 2015. The defendant is the owner of the land

situated on the Northern and Western boundary of the suit

land and he had been trying to grab the land of the father

of the plaintiff and later on the plaintiffs had taken forceful

possession of the suit land on 25.10.2015. The plaintiffs

stated to have asked the defendant as to why he entered

the suit land, due to which the defendant threatened the

plaintiffs with serious consequences. As such, the plaintiffs,

claiming to have title over the suit land, had filed the suit

for declaration along with consequential relief for recovery

of possession.

[6] On the contrary, appearing to contest the suit,

the defendant apart from denying all the assertions of the

plaintiffs stated inter alia in his written statement that his

mother Usha Rani Acharjee had purchased the suit land

from one Monoranjan Acharjee on the strength of a

registered sale deed bearing No. 1-6316 dated 07.05.1970

and was in possession thereof till her death. It is further

stated that on 16.04.2014 the mother of the defendant had

expired and before her death she on 20.01.2012 gifted the

entire suit property in his favour by way of executing an

unregistered gift deed. It is further case of the defendant

that during her lifetime, his mother applied for mutation

which was not allowed since the suit land was alleged to be

situated within the territorial limits of places of second

schedule of the TLR & LR Act. But the plaintiffs somehow

had managed to get the mutation. The defendant further

claimed to have the owner in possession in the suit land and

as such, prayed for dismissal of the suit.

[7] On the material proposition of facts and law upon

which the parties are at variants, following issues were

framed by the learned trial court which also came for

decision before the First Appellate Court.

"(i) Is the suit maintainable in its present form and nature?

(II) Have the plaintiffs right, title and interest over the suit land described in the schedule of the plaint?

(III) Is the story of possession of the plaintiffs over the suit land and their dispossession therefrom on 25.10.2015 true?

(IV) Are the plaintiff entitled to the decree, as prayed for?

(V) What other relief/reliefs are the plaintiffs entitled?"

[8] In order to substantiate the claim, the plaintiffs

had adduced three witnesses including the plaintiff No.1,

Smt. Rakhi Acharjee as PW-1, Smti Rita Acharjee, the

plaintiff No.3 as PW-2 and Shri Haricharan Acharjee as PW-

3 and the following documents were proved:

"(I) Original copy of registered gift deed bearing No. 1-5927, dated 06.07.2015 (Exbt.1).

(II) Letter dated 21.08.2015 original copy of registered deed of partition bearing No.1-5335 dated 11.08.2014 (Exbt.2).

(III) Certified copy of Khatian bearing No. 769/1, 769/2, 769/3 and 769/4 (Exbt.3 series).

(IV) Certified copy of map of mouja East Debendranagar, Sheet No.1 under Jirania Revenue Circle (Exbt.4)."

[9] On the other hand, to prove the case, the

defendant had examined three witnesses including the

defendant himself namely, Shri Sankar Acharjee as DW-1,

Shri Goutam Saha as DW-2 and Shri Apu Acharjee as DW-3

and the following documents were proved:

(I) Two numbers of receipts showing presentation application for mutation in MR No. 2 and 3 (Exbt.1.a).

(II) Original copy of registered sale deed bearing No. 1-6316 (Exbt.1.b).

(III) Original copy of unregistered deed of gift dated 21.01.2012 in three sheets (Exbt.2).

(IV) Mutation notice dated 02.06.2012 (Exbt.3).

(V) Certified copy of Khatian bearing No.5719 of mouja East Debendranagar, 769/1, 769/2 and 769/3 (Exbt. 5 a, 5 b and 5 c)."

[10] The learned trial court having heard the learned

counsel and after consideration of the evidence and

materials brought on record, had dismissed the suit of the

plaintiffs.

[11] The dismissal of the suit, had prompted the

plaintiffs to prefer first appeal before the learned District

Judge. On transfer, the appeal was heard and decided by

the learned Addl. District Judge, Court No.2, West Tripura,

Agartala. The learned Addl. District Judge after hearing the

parties allowed the appeal declaring the right, title and

interest of the plaintiffs over the suit land with

consequential reliefs to get recovery of possession of the

suit land by way of evicting the defendant with due process

of law.

[12] Feeling aggrieved and dis-satisfied with, the

defendant, Shri Sankar Acharjee has preferred the instant

second appeal before this Court.

[13] At the stage of admission, this Court had heard

the learned counsel for the parties as to whether the

present appeal consisted of substantial questions of law for

the purpose of admission of the appeal.

[14] Mr. R. G. Chakraborty, learned counsel

appearing for the plaintiff-appellant would contend that the

learned First Appellate Court had committed serious error in

law to allow the appeal preferred by the plaintiffs and

decreeing the suit in favour of them by way of setting aside

the judgment and decree passed by the learned trial court.

Mr. Chakraborty, learned counsel principally urged that the

plaintiffs had failed to prove the deeds of partition as well

as the gift in accordance with law as contemplated under

Section-67 and Section-68 of the Evidence Act. To reinforce

his submission, learned counsel relied upon the proposition

of law enunciated by this Court in the case of Rina Laskar

& Ors. vs. Rabindra Chandra & Anr. reported in (2013)

2 TLR 467 that "According to law mere marking of a

document as exhibit does not necessarily prove the content

of the document. The contents document is to be proved

according to the procedure prescribed by law.......".

[15] According to the learned counsel for the

appellant, the findings of the learned First Appellate Court

while reversing the findings of the learned trial court had

not only committed serious error in law, but also

misinterpreted and misconstrued Section-67 and Section-68

of the Indian Evidence Act.

[16] The above rival submissions had led me to go

through the findings arrived at by the learned courts below

to find out as to how both the courts had dealt with this

question of law. Before discussion, on this legal issue, I like

to reproduce Section-67 and Section-68 of the Evidence Act

which read as under:

"Section-67. Proof of signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

Section-68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

1[Provided that it shall not be necessary to call an attesting witness in proof of

the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"

[17] The mode of proof of document is well

established and does not necessarily require debate afresh.

Only I am to see which Court had committed error to

interpret and construe the above provisions. While

appreciating the oral and documentary evidence, the

learned trial court had dealt with the matter in the issue in

question as follows:

"Issue No.(II): In order to find out as to whether the plaintiffs have title over the suit land let's see if the plaintiffs have proved their title document. As per averments made in the plaint as it appears that the suit land originally belonged to one Anadi Krishna Acharjee and after his death, father of the plaintiffs and Ratan Acharjee being the legal heirs have amicably partitioned the suit land on the strength of registered deed of partition bearing No. 1-5337, dated 11.08.2014 (Exbt.2). Father of the plaintiffs thereafter gifted the suit land out of his share to the plaintiffs on the strength of gift deed bearing No. 1-5927, dated 06.07.2015 (Exbt.1). The plaintiff No. 1 as PW-1 has formally proved those documents as Exbts.1 and 2.

The essential requirements to prove document purported to have been executed in writing has been enshrined in Section.67 of the Indian Evidence Act which states that - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is

alleged to be in that person's handwriting must be proved to be in his handwriting.

Therefore, it appears that to prove a document it is incumbent on the part of the party producing the document to produce the person who has wrote or prepared the document and in this absence to produce the person in whose presence the document so produced was executed.

In the case at hand, the plaintiff No.1 as PW-1 has proved the gift deed and the deed of partition formally which were marked as Exbts.1 and 2. No evidence led to indicate that the person who has wrote/prepared the Exbts.1 and 2 is/are not available or unable to give evidence due to any reason. No attempt was also made to produce the scribe/attesting witness to Exbts.1 and 2. Therefore, it is safe to hold that the conditions as prescribed in Section.67 of the Evidence Act was not fulfilled.

At this juncture it requires determination as to whether admitting any document into evidence marking it as exhibit can be said to be proved. In this connection we may make reference to the decision rendered by the Hon'ble High Court of Tripura in case of "Rina Laskar and Others v. Rabindra Chandra and Another reported in (2013) 2 TLR 467, wherein in para-6 it was held that "according to Law mere marking of document as exhibit does not necessarily prove the content of the document. The content of the document is to be proved according to the procedure prescribed by law."

In this view of the matter it cannot be said that the plaintiffs have duly proved their title documents. In absence of proper proof of title document we declined to declare title of the plaintiffs as sought for. Accordingly, issue No.(ii) stands answered negative.

Since the plaintiffs failed to establish their title over the suit land, they are also not entitled to have the possession of the suit land as sought for. It allows therefore, the plaintiffs are not entitled

to any decree or relief as proposed. Accordingly, issue No.(iii) to (v) answered in negative.

On the basis of discussion as we had hereinabove I order as follows-

9. ORDER

In the result the suit stands dismissed on contest."

[18] While setting aside the finding of the learned trial

court on the question of admissibility of the partition and

the gift deed (Exbt.1 & 2), in evidence, the learned First

Appellate Court had observed thus:

"From the evidence of the parties, i.e. PW-1 Smti Rakhi Acharjee, one of the appellants it appears that she during her examination before the court relied upon original title deed bearing No. 1-5927 dated 02.07.2015 and original copy of registered deed of partition 1-5337 which were respectively marked as Ext.1 and 2. The contesting respondent defendant by the art of cross- examination could not raise any doubt to discard her evidence. PW-3 Haricharan Acharjee, the father of the plaintiff appellants appeared in this case and stood as witness on behalf of the plaintiff appellants who during his examination in chief on affidavit specifically stated that he had gifted land measuring more than 1 kani to his daughters by executing a registered deed of gift on 06.07.2015and identified his signatures marked as Ext.1/1 series. Further as executant he also identified the registered deed of partition bearing No. 5337 dated 18.08.2014 and identified his signatures on the registered deed of partition marked as Ext.2/1 series. The respondent defendant b y the trend of cross-examination also could not raise any doubt to disbelieve those documents executed by the said witness. Now, in this regard I would like to refer herein below the

relevant provision of Section-67 of the Indian Evidence Act which provides as under:

"Section-67. Proof of signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

From the aforesaid provision it appears to me that either the executant or the person who prepared the document can prove the document alleged to be signed or written. Here in the case at hand since the executant himself appeared as witness and admitted the registered deed of gift made in favour of the appellants and also admitted the registered deed of partition, so it appears to me that the plaintiff appellants have been able to prove the documents in view of the provision provided u/s 67 of the India Evidence Act and also since the executant himself has admitted the execution of the documents so, in view of the Section-68 of the Indian Evidence Act it was not necessary on the part of the plaintiff appellants to produce the attesting witness. But after perusal of the judgment of the Ld. Court below it appears to me that Ld. Court below has failed to appreciate that part of evidence on record of the plaintiff appellants and came to a wrong findings that the appellants could not prove the documents as per law which in my considered view was improper and beyond the prescribed provision of law."

[19] Having appreciated the findings of both the

courts below on the question of admissibility of documents

under Section-67 of the Evidence Act, in my opinion, the

First Appellate Court had interpreted and construed the

meaning of the said provision correctly and needless to say

that the learned trial court had failed to read the provision

in the manner the same had to be read. Section-67

mandates that the signature and handwriting or a person or

written document can be proved, only be examining the

person concerned. The act however, provides for

contingencies where the person concerned is not available

or alive. In such cases, the person who figures as witness or

those who are acquainted with the handwriting or signature

of the concerned person, can through light upon it. Where,

the person is very much available or alive, attempt to prove

his signature or handwriting, by examining a 3rd person as a

witness, would have its own drawbacks.

[20] True it is, mode of proof a document required by

law to be attested as provided under Section-68 of the Act.,

which prohibits use of the document as evidence unless at

least one of the attesting witnesses is called to prove the

execution which also includes attestation. Since a gift deed

is to be attested by at least two witnesses, its execution can

be said to be proved only when it is proved that the donor

has signed the deed of gift or acknowledged his signature to

the true witnesses who have attested the same and those

witnesses have signed in presence of the donor. Normally,

both the donor and the attesting witnesses are required to

be examined for proving the gift.

[21] However, on minute reading, in my considered

view, Section-68 of the Evidence Act gives a concession to

the party to call one of the attesting witnesses to prove

execution of the document, which is mandatory. Legislature

however, made exceptions so that in these circumstances

provided in proviso to Section-68 and Section-69 to 71, the

mandatory provision is not to be insisted by the Court to be

complied with. Proviso to Section-68 exempts the party

from proving the execution of gift deed by calling at least

one of the attesting witnesses alive and subject to process

of the Court if the gift deed is registered and the donor does

not deny the execution specifically. Further, in my opinion,

Section-67 provides that one of the attesting witnesses

need not be examined to prove the execution of a gift deed

if the donor admits the execution himself and in this

situation, the gift deed in question shall be proved of its

execution. The legislature while encrypting the provision

had taken note of a circumstance where the attesting

witness denies or does not recollect the execution of the gift

deed.

[22] In the instant case, both the partition (Exbt.1)

and the gift deed (Exbt.2) were registered under the

Registration Act and such registration was never denied by

the executant, rather he had admitted its execution and

registration.

[23] Interestingly, Haricharan Acharjee, the father of

the plaintiffs appearing as PW-3 in his examination-in-chief

specifically stated that he had gifted the land measuring

more than 1 kani to his daughters by executing a registered

deed of gift on 06.07.2015. The said witness had identified

his signature marked as Exbt.1/1 series. More importantly,

the father of the plaintiffs being executant had itself

identified the registered deed of partition bearing No. 5337

dated 18.08.2014 and identified his signatures on the said

deed of partition marked as Exbt.2/1 series.

[24] On meticulous scrutiny of the evidence let in by

the side of the defendant, the learned First Appellate Court

has not committed any wrong in arriving at a finding that

by the trend of cross-examination, the defendant could not

raise any doubt to disbelieve those documents executed by

the said witness.

[25] In the case in hand, PW-3, being the father and

executor, has himself admitted that he being the owner of

the suit land by dint of partition deed had gifted the suit

land in favour of his daughters and thereafter, they became

the absolute owner thereof. In such circumstances, under

the provisions of Section-68, it was not necessary to call

any attesting witness or scribe to prove the execution of the

deed in question for admitting the same as evidence or

marking the same as exhibits in the suit. I may gainfully

refer a decision of the Apex Court in Ishwar Dass Jain v.

Sohanlal, reported in AIR (2000) SC 426, where the

Apex Court had observed thus:

"14...............The mode of proof of documents required to be attested is contained in Sections 68 to 71 of the Evidence Act. Under Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of court and is capable of giving evidence. But in case the document is registered -- then except in the case of a will -- it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from Section 68 of the Evidence Act. It reads as follows:

"68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the rent control legislation. In fact, in his evidence as DW 2 the defendant admitted the execution of the mortgage. It must therefore be taken that there was no specific denial of execution. Hence it was not necessary for the plaintiff to call the attestor into the witness box, this not being a will. The plaintiff could therefore not be faulted for not examining any of the attestors. Hence the mortgage stood proved by the certified copy. The courts below were right in accepting that the deed was proved. Point 2 is decided in favour of the plaintiff appellants."

[26] Another interesting feature is that while bringing

the documents into evidence in course of trial, the

defendants had never raised any objection and the

documents were allowed to admit into evidence without any

remarks like "subject to objection". In this case, the

executant of both the deeds (Exbt.1 and 2) had admitted

the contents as well as the signature on the said deeds.

Thus, under the circumstances, even if any of the attesting

witnesses/scribe were alive, there was no need to prove the

fact of execution of the deeds in question.

[27] In addition, having a glimpse to other

documents, it transpires that the suit land appertains to

Khatian No. 769/3 under Mouja East Debendranagar

appertaining to old C.S. Plot No. 6306/P revised CS Plot

No.9962/P measuring 0.15 acres classified as „Nal‟ and the

Record of Rights relating to the suit land as stated above

still exists in the name of the PW-3 in Khatian No.769/3.

More so, the defendants during his cross-examination has

specifically stated that he used to possess one kani of land

by way of purchase since the year, 1970 and his one kani

land is surrounded by the land of the predecessor of the

plaintiffs. He has further stated that said one kani of land

was purchased in the name of his mother from single plot

comprising 1.18 acres of land and the remaining land of the

said land remains in the name of predecessor of the

plaintiffs and the same was recorded in the name of

Haricharan Acharjee, PW3(father of the plaintiffs) and Ratan

Krishna Acharjee. Significant enough that the defendant did

not say anything about the registered partition deed

executed in between Haricharan Acharjee and Ratan

Krishna Acharjee. So, his admission during evidence that he

was possessing the land outside the land of the predecessor

of the plaintiffs, clearly establishes the plaintiffs‟ right, title

and interest over the suit property from which they were

dispossessed by the defendant compelling the plaintiffs to

institute the present suit for declaration and recovery of

possession evicting the defendant from the suit land.

[28] It is now well established that the existence of

"substantial question of law" is the sine qua non for the

exercise of jurisdiction under Section-100 of the CPC, after

amendment of CPC by the Civil Procedure Code

(Amendment) Act, 104 of 1976, w.e.f. 01.01.1977. Section

100 reads as under:

"Section-100--Second Appeal-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from a appellate decree passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

[29] It is aptly clear that a second appeal will only lie

on a substantial question of law and the statute confers a

limited right of appeal which the Court has no scope to

expand. As I said earlier, in the instant case, the learned

counsel for the appellant had proposed the Court to

formulate the following substantial questions of law:

(i) Whether finding of the appellate court is perverse.

(ii) Whether non-consideration of the exhibited documents of the appellant side causing miscarriage of justice.

(iii) Whether the Ld. Appellate Court ought to have appoint a Surveying Commissioner to find out the suit land by metes and bounds and to ascertain the long standing possession in the suit land.

(iv) Whether the suit of the plaintiffs-respondents are barred under the Provisions of the Limitation Act.

(v) Whether the provision of the Section-68 of the Evidence Act properly exercised by the Appellate Court.

(vi) That, the appellant deserves any other substantial question of law at the time of hearing."

[30] Out of the aforesaid proposed substantial

questions of law, the learned counsel for the appellant

relied upon point No.(v) which speaks that "whether the

provision of the Section-68 of the Evidence Act properly

exercised by the Appellate Court."

[31] Before adverting to the merits as to whether the

instant second appeal at all involves substantial question

law, let me discuss the principles as laid down by the Apex

Court recently in the case of Nazir Mohamed v. J. Kamala

and Ors decided on 27th August, 2020, in Civil Appeal

Nos. 2843-2844 of 2010, the Apex Court while narrating

the scope of second appeal has observed thus:

"29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1, where this Court held:-

"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."

30. In Hero Vinoth v. Seshammal2, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.

31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:-

""21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC 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 2(2006) 5 SCC 545 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (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. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 :

(1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p.

557)

"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 views, 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.

32. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way."

[32] Keeping in mind the above principles as

delineated in Nazir Mohamed (supra), in my considered

view, in the instant appeal none of the proposed substantial

questions of law as reproduced hereinabove constitute

substantial question of law. The learned trial court had

arrived at an erroneous finding on appreciating the true

meaning and spirit of Section-67 and Section-68 of the

Indian Evidence Act. The question tried to be raised

centering around Section-67 and Section-68 of the Evidence

Act, does not allow this Court to take any alternative view,

and leaves no room to arrive at a different finding than that

of the findings arrived at by the learned First Appellate

Court. The provision of Sections-67 and 68 are clear and

unambiguous. The learned trial court has failed to apply his

mind while appreciating the essentialities of Section-67 of

the Evidence Act and the instant appeal does not give any

scope to further debate about the requirements of Section-

67 and Section-68 of the Indian Evidence Act which has

already been well settled by a wealth of decision of the

Apex Court. Thus, I am unable to trace out any such

question which may be considered as a substantial question

of law to admit this appeal.

[33] In my considered view, mistake of law, wrong or

erroneous interpretation of law by the trial Court if

corrected by the superior Court would not in any way

constitute substantial question of law because no room is

left to open a fresh debate on the said question of law

which speaks for itself and already settled but make

unsettled from erroneous reading of the provision of law by

trial court. In the instant case, the impugned judgment of

the trial Court was proceeded on an erroneous reading of

Section 67 and Section 68 of the Indian Evidence Act.

Further, I find no error or illegalities in the reasoning and

conclusion arrived at by the first appellate Court and the

same appeared to be well merited and on minute reading of

the provisions of law as embodied in Section 67 and 68 of

the Evidence Act that Section-68 gives a concession to the

party to call scribe or attesting witness where the executor

of the questioned documents, not being WILL, and if it is

registered himself appears and admits its execution. As I

said earlier, in the case in hand, the father of the plaintiffs

being executor of the questioned document himself

appeared in the witness box and admitted its execution.

The plaintiff could therefore not be faulted for not

examining the scribe or attestors.

[34] Having held so, I have no other alternative but

to dismiss the present second appeal at this stage without

dragging it further having found no substantial question of

law. Accordingly, the instant appeal does not deserve

admission and thus, dismissed however, no order as to

costs.

JUDGE

A.Ghosh