Tripura High Court

Appellant(S) vs Smt. Sankari Debnath on 16 September, 2022

                                  Page 1 of 13


                  HIGH COURT OF TRIPURA
                          AGARTALA
                     RSA NO.16 OF 2020
1.(a) Sri Rabindra Narayan Nath,
S/O Late Satish Chandra Nath.

1(b). Sri Manindra Narayan Nath,
S/o. Late Satish Chandra Nath.

Both are resident of C/o of Bani Bastralaya, H.G. Road,
Agartala, P.S. West Agartala, Dist.-West Tripura
    ****( As per the order of this Court dated 23.02.2021, passed in
    connected I.A. No.01 of 2021, the names of deceased appellant No.2 are
    incorporated in following way***)
2A. Smt. Anjali Saha,
W/o-Late Haridhan Saha.

2B. Sri Biswajit Saha,
S/o. Late Haridhan Saha.

Both resident of Radhanagar, P.S. West Agartala, P.O.
Agartala, District-West Tripura.

2C. Smt. Akhi Saha,
W/o. Sri Suman Saha,
D/o-Late Haridhan Saha,
Resident of Purba Pratapgarh,
P.S. East Agartala,
District-West Tripura.

3. Sri Haradhan Saha,
S/o Late Kunja Mohan Saha.

Resident of Radhanagar, Agartala, P.S.-East Agartala, Dist-
West Tripura.

4. Sri Narayan Prasad Dasgupta,
S/o-Late Rupmala Dasgupta.

Resident of Village Radhanagar, P.S.-West Agartala, District-
West Tripura.

5. Smt. Rama Saha,
W/o. Sri Biswajit Saha,
Resident of Village Radhanagar, P.S. West Agartala, District-
West Tripura.
                                Page 2 of 13




                                              ----- Appellant(s)

                                Versus

1. Smt. Sankari Debnath
W/o- Late Indra Lal Debnath,

2. Sri Pathik Debnath,
S/o Late Indra Lal Debnath,

3. Sri Bishnu Debnath,
S/o- Late Indra Lal Debnath,

All are resident of Village Radhanagar at present Gurkhabasti,
within Sadar, Agartala, P.S.-West Agartala, Dist-West Tripura.

4. Smt. Anjali Debnath (Bhattacharjee)
W/o- Shri Rabindra Bhattacharjee,
Resident of village Mohanpur,
P.S.-Sidhai,
District-Tripura West.

5.(A) Smt. Dipti Debnath,
W/o- Late Kumud Bandhu Debnath,

5.(b) Sri Narottam Debnath,
S/o-Late Kumud Bandhu Debnath.

5(c). Sri Debotttam Debnath
W/o Late Kumud Bandhu Debnath.

5(d) Sri Dwijottam Debnath
W/o- Late Kumud Bandhu Debnath.

5(e). Smt. Chayanika Debnath,
W/o- Sri Manik Chandra Debnath,
D/o- Kumud Bandhu Debnath.

All are resident of:-
Radhanagar, at present adjacent to Mouja Krishnanagar,
Sadar, Agartala, P.S.-West Agartala, Dist-West Tripura.

                                 ----- Plaintiffs-Respondent(s)

6. Dulal Saha S/o Late Prafulla Saha, Resident of Radhanagar, Agartala, P.S. West Tripura.

7. Sri Raja Chowdhury, S/o Late Nani Gopal Chowdhury,

Resident of Abhoynagar, East of Collage of Education (B.Ed) College, Agartala, Dist-West Tripura at present Khujaban, Colony P.O. Abhoynagar, Agartala, P.S.-East Agartala.

8. Sri Rana Chowdhury S/o Late Nani Gopal Chowdhury, Resident of Abhoynagar, P.S. East Agartala, District-West Tripura.

9. Smt. Laxmi Rani Saha, W/o. Sri Dulal Saha,

Resident of village Radhanagar, Agartala, P.S.-East Agartala, District-West Tripura.

.............Proforma Defendant Respndent(s)

For the Appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate.

Mr. P. Saha, Advocate.

For the Respondent(s) : Mr. P. Roy Barman, Sr. Advocate.

Mr. S. Bhattacharjee, Advocate.

Ms. P. Pal, Advocate.

   Date of hearing             : 13.09.2022.

   Date of delivery of
   Judgment & Order            : 16.09.2022.

   Whether fit for reporting   : NO.



                       BEFORE
        HON'BLE MR. JUSTICE T. AMARNATH GOUD

                JUDGMENT & ORDER

This present second appeal has been filed under

Section 100 of CPC by the appellants herein against the

judgment and decree dated 02.12.2019 passed by the learned

District Judge, West Tripura, Agartala in Title Appeal No.64 of

2016 reversing the judgment and decree dated 12.09.2016

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

West Tripura Agartala.

2. The facts of the case in brief leading to this

present second appeal are that one Indra lal Debnath i.e., the

predecessor in interest of the plaintiff-respondents Nos. 1 to 4

was the owner in possession of 'A' schedule land on the

strength of registered sale deed bearing No. 1-5800, dated

29.05.1972. Similarly, the predecessor of plaintiff-respondents

No. 5(a) to 5(e) also claimed to be the owner in possession of

the 'B' schedule land on the strength of the registered sale

deed bearing No. 1- 5798, dated 29.05.1972. Both the sale

deeds were executed by Subhadra Sundari Debi (now

deceased), the predecessor in interest of the appellant No.1(a)

and 1(b). After a few days of execution of aforesaid sale deeds,

one Radha Gobinda Debnath as plaintiff had filed TS. 68 of

1972 after withdrawal of TS.20 of 1970 against the said

Subhadra Sundari Debi and predecessor of the plaintiff-

respondents Nos. 1 to 4 and the plaintiff-respondents No. 5(a)

to 5(e) as defendants claiming right, title over the four kanis

and odd land including the suit land. Due to the pendency of

the said suit, the predecessor of the plaintiff-respondents did

not get their land mutated, however all along they were in

possession. Ultimately, the said suit was compromised before

the Hon'ble Gauhati High Court, Bench at Agartala during the

pendency of Second Appeal vide., SA 25 of 1985. Accordingly,

a compromise decree dated 28.02.1995 was prepared on the

strength of which said Subhadra Sundari Debi had got 60 %

share of the entire four kanis of land including the suit land,

and said Radha Gobinda Debnath got the remaining 40 %

share. Thereafter, the predecessor of the plaintiff-respondents

asserted that said Subadha Sundari Devi tried to take

possession of the suit land and to sell most of the share to

some financially sound person, etc. for which Indra Lal Debnath

and predecessor of respondent No. 5(a) to 5(e) had filed

T.S.02 of 2002 which was withdrawn with liberty to file afresh

and thereafter T.S. 51 of 2005 was filed.

3. The learned Trial Court form the following issues

for adjudication of the suit:-

"1. Is the suit maintainable in its present form and nature?

2. Have the Plaintiffs any cause of action to file the instant suit?

3. Have the plaintiffs right, title and interest over the suit land described in Schedule A and B of the plaint?

4. Is the gift deed dated 10.01.2002 void against the plaintiffs? If so, is the gift deed liable to be declared void?

5. Is the story of dispossession of the plaintiffs from the suit land on 15.02.2003 and taking over forceful possession of the suit land on 30.09.2009 by the defendants true? If so, are the plaintiffs entitled to get the possession of the suit land?

6. Are the plaintiffs entitled to a decree, as prayed for?

7. What other relief/ reliefs the plaintiffs are entitled?"

4. The predecessor of the defendant Nos.1(a) and

1(b) therein and other defendants submitted written

statements denying the statements made in the plaint and

asserting their right over the suit. In the suit, the plaintiffs

exhibited 22 documents. The plaintiffs also examined 3 P.W.s

and the defendants examined 2 D.Ws.

5. After hearing the parties, learned Trial Court

dismissed the suit on contest by the Judgment and decree

dated 12.09.2016. Against which the respondent Nos. 1 to

5(e) filed Title Appeal No.64 of 2016 in the Court of the

District Judge, Agartala. Learned District Judge, West Tripura

Agartala vide judgment and order decree dated 02.12.2019

revered the decree of the Trial Court and allowed the appeal.

Hence the appellants herein have preferred this second appeal

against the said judgment and decree dated 02.12.2019.

6. On 15.03.2021, this present second appeal was

admitted on the following substantial question of law:-

"(i) Whether the learned First Appellate Court has misinterpreted and misconstrued the decree dated 30th May 1983 passed in T.A. No.02 of 1983 and T.A. 08 of 1982 titled as Srimati Subhadra Sundhari Debi(defendant-appellant) vs. Radha Govinda Debnath(plaintiff-respondent) Kumud Bandhu Debnath & 4 ors(proforma Defendants-respondents)."

7. Heard Mr. S.M. Chakraborty, learned Sr. counsel

assisted by Mr. P. Saha, learned counsel appearing for the

appellants as well as Mr. P. Roy Barman, learned Sr. counsel

assisted by Mr. S. Bhattacharjee, learned counsel and Ms. P.

Pal, learned counsel appearing for the respondents.

8. Mr. S.M. Chakraborty, learned Sr. counsel

appearing for the appellants submits that the core issue i.e.

whether the Subhadra Sundhari Debi vide T.A. No.08 of 1982

had lost her claim of title over the sold land vide Exbt-2 and 3

to the predecessor of respondent Nos.1 to 4 and respondent

No.5(a) to 5(e) was not considered. The material fact that the

decree of the District Judge passed in T.A.08 of 1982 declaring

the sale deed as void was saved by the compromise decree

passed in S.A. No.25 of 1983 and therefore learned District

Judge has misapplied the provisions of Section 48 of the T.P.

Act 1882 was not considered. Learned Sr. counsel to

substantiate his argument referred to Sections 43 and 44 of

the Transfer of Property Act, 1882. Stating thus learned Sr.

counsel urged to allow the instant appeal and set aside the

judgment and decree passed by Lower Appellate Court.

9. Mr. P. Roy Barman, learned Sr. counsel

appearing for the respondents opposed the said argument of

the learned Sr. counsel appearing for the appellants and

submits that the plea taken by the learned Sr. counsel for the

appellants that in respect of the judgment passed by the lower

Appellate Court which was ultimately compromised in the

second appeal, those sale deeds have become non-est is bad in

the eye of law. To substantiate his argument he further

referred to Section 48 of the Right to Property Act, 1882, and

stated that the same has not been rightly applied.

10. In support of his argument, he has also referred

to para-17, 20, 21, 22, and 24 of the Judgment of the

Hon'ble Supreme Court passed in Hero Vinoth(Minor) Vs.

Seshammal reported in (2006) 5 SCC 545 dated

08.05.2006 which is reproduced herein under:-

" 17. 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 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 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.

20. The question of law raised will not be considered as a substantial question of law, if it 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. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. There mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents 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 fact 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) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.([See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and Others (1999(3) SCC 722)]

21. The phrase "substantial question of law", as occurring in the amended Section 100 of the 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 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (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 Sri Chunilal's case (supra), 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.

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 be particular facts of the case it would not be a substantial question of law."

This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial"

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

22. In Dy. Commnr. Hardoi v. Rama Krishna Narain also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 of the CPC.

24. The principles relating to Section 100 CPC, relevant for this case, may be summerised thus:-

(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 concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized 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."

11. Heard both side and perused the evidence on

record.

12. Before we delve into the conclusion of this

instant appeal let us reproduce Section 43, 44 and 48 of the

Transfer of Property Act, 1882:-

"43. Transfer by unauthorised person who subsequently acquires interest in property transferred.-- Where a person 1[fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

44. Transfer by one co-owner.--Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him

to joint possession or other common or part enjoyment of the house.

48. Priority of rights created by transfer.--Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

13. Here the issue relates to the declaration of title

of the plaintiff-respondents over the 'A' and 'B' schedule land

including the issue as to whether the gift deed dated

10.01.2002 is void. No issue, however, appears to have been

framed to decide the validity of the sale deed. As per the

compromise, decree dated 28.02.1995 being drawn up by this

Court, in S.A. 25 of 1985, the predecessor of the appellant

Nos.1(a) and 1(b) has got 60% of the entire suit land in T.S.68

of 1972 covering both the schedule land of this suit.

14. In absence of any title over the suit land, there

is hardly any reason for the plaintiff-respondents to seek

declaration of gift deed and the sale deed to be void. The