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2016 DIGILAW 212 (TRI)

Uttam Kumar Chakraborty, S/o. Manoranjan Chakraborty v. Animesh Choudhury, S/o. Lt. Nilmohan Choudhury

2016-08-23

S.C.DAS

body2016
JUDGMENT & ORDER : 1. This second appeal, under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 17.07.2012 and 24.07.2012 respectively, passed by learned Addl. District Judge (Court No.4), Agartala in Title Appeal No.33/2011 whereunder the judgment and decree dated 30.06.2011, passed by learned Civil Judge (Sr.Division), Court No.2, Agartala, West Tripura in Title Suit No.70 of 2006 has been affirmed. 2. The appeal is directed against the concurrent findings of the trial Court and the first appellate Court. 3. Heard learned Sr. counsel, Mr. D. Majumder for the appellant and learned counsel, Mr. D.K. Biswas for the respondents. 4. The second appeal has been admitted for hearing on the following substantial questions of law:- (1) Whether the suit instituted by the plaintiff-respondent is maintainable in view of not making any prayer for declaration of title while the title of the plaintiff was denied by the defendant-appellant? (2) Whether the judgment and decree passed by the trial Court and affirmed by the appellate Court suffer from any perversity? 5. Bereft of unnecessary details, the facts necessary for disposal of the appeal so far transpired in the pleadings of the parties are - 5.1 Nilmohan Choudhury, since deceased, the predecessor of the substituted respondents, as plaintiff (herein-after mentioned as plaintiff), instituted Title Suit No.70 of 2006 in the Court of Civil Judge, Sr. Division, Agartala, West Tripura, seeking recovery of possession of the suit land described in the schedule of the plaint against the appellant herein as defendant (herein-after mentioned as defendant). 5.2 It was, inter alia, contended by the plaintiff that he purchased the suit land from the defendant on payment of due consideration on 20.07.2004 and the sale-deed was executed and presented for registration on that date before the Sub-Registrar, Khowai. Possession of the suit land was handed over to the plaintiff by the defendant on that day itself. The Registering authority could not return the registered deed to the plaintiff and under compelling situation the plaintiff filed WP(C) 202 of 2005 in the Agartala bench of the then Gauhati High Court seeking direction to the Registering Authority to deliver the registered sale-deed to the plaintiff and in that writ petition the Registering Authority and the defendant were arrayed as respondents. In the writ petition before the High Court, the said official respondents brought a fact that the sale-deed was tampered and mutilated and therefore, an inquiry was set up to find out wrong doer and it was also stated by the Registering Authority that the deed which was presented for registration was undervalued and so deficit stamp duty should be paid by the plaintiff for getting the registered deed delivered. The writ petition was disposed of by a consensus order dated 27.03.2006 that the plaintiff shall deposit the deficit stamp duty of Rs.8450/- and the Sub Registrar shall issue a certified copy of the sale-deed with an endorsement that the certified copy was in lieu of the original deed which was lost. The plaintiff deposited the deficit stamp duty and accordingly a certified copy with the certificate of Sub Registrar was issued vide sale-deed No.1-1155 dated 20.07.2004. 5.3 It was further contended by the plaintiff that he got possession of the suit land on 20.07.2004 and thereafter constructed a house on the suit land to accommodate his daughter who was practicing as an Advocate in Khowai Bar and accordingly his daughter started living on the suit land with small belongings. In the month of September, 2004 when daughter of the plaintiff was away from the suit land the defendant removed all belongings of the plaintiff’s daughter and trespassed into the suit land and thereby dispossessed the plaintiff. Since the plaintiff did not get the original sale-deed by that time he was waiting for the sale-deed and after the order was passed by the High Court, the plaintiff approached the defendant to mitigate the matter and initially the defendant agreed but ultimately he was dilly dallying the process and therefore, the plaintiff instituted the suit seeking recovery of possession from the defendant-trespasser. It was contended by the plaintiff that he was the lawful owner of the suit land by dint of purchase on 20.07.2004 and that the defendant dispossessed him in October, 2004. He, therefore, prayed for a decree of recovery of possession. 5.4 The defendant contested the suit by filing written statement, inter alia, contending that he was a practicing lawyer of Khowai Bar and that the plaintiff and his daughter were very much known to him. He, therefore, prayed for a decree of recovery of possession. 5.4 The defendant contested the suit by filing written statement, inter alia, contending that he was a practicing lawyer of Khowai Bar and that the plaintiff and his daughter were very much known to him. He purchased the suit land and thereafter he was in need of some money to make some minor construction and modification of the existing huts and structures on the suit land and for that purpose he took a loan of Rs.66,000/- from the plaintiff and executed a deed on 20.07.2004 in the nature of a sale-deed but in fact it was a document as a security of payment of the loan amount of Rs.66,000/- on condition that within a year he will repay the amount and the plaintiff will return the suit land by executing a similar sale-deed. Proper value of the suit land was not written in the sale-deed and there was no handing over of possession of the suit land to the plaintiff on the date of execution of the deed i.e. 20.07.2004. He was all along in possession of the suit land and the story what was stated by the plaintiff that his daughter was inducted in a house, constructed by him in the suit land, was a false story and/or a got up story only to make out a case to illegally grab the suit land. 3 5.5 It was, however, admitted by the defendant that the plaintiff filed a writ petition seeking direction to the Registering Authority to deliver the registered sale-deed and he further stated that the allegation of tampering and mutilating the original sale-deed was not correct. The High Court by order dated 27.03.2006 directed the Sub Registrar to issue a certified copy of the sale-deed as the original was missing and Sub Registrar accordingly issued a certified copy of the registered deed dated 20.07.2004. The plaintiff taking advantage of the deed, dated 20.07.2004, trying to grab the suit land though the said deed was not executed by the plaintiff with the intention of selling the suit land but it was as a security document in respect of the loan of Rs.66,000/- taken by the defendant from the plaintiff. The plaintiff taking advantage of the deed, dated 20.07.2004, trying to grab the suit land though the said deed was not executed by the plaintiff with the intention of selling the suit land but it was as a security document in respect of the loan of Rs.66,000/- taken by the defendant from the plaintiff. He offered the amount to the plaintiff on several occasions in presence of some persons and requested the plaintiff to re-convey the suit land by executing a sale-deed but the plaintiff did not do so and thereby violated the oral agreement. He neither sold the suit land to the plaintiff nor handed over possession of the same to the plaintiff and the daughter of the plaintiff never resided on the suit land. 6. Considering the pleadings of the parties, the trial Court framed 6(six) issues namely- 1. Whether the suit is maintainable in its present form and nature? 2. Whether the plaintiff is the owner by purchasing of the suit land from the defendant by virtue of sale deed executed on 20.7.2004 A.D.? 3. Whether the said sale deed dated 20.7.2004 mutilated in the custody of the Registering Authority after it was presented by the defendant? 4. Whether the plaintiff was dispossessed by the defendant from the suit land/houses on 15.10.04? 5. Whether the plaintiff is entitled to get a decree as prayed for? 6. What other relief/reliefs the parties are entitled to get? 7. In course of trial, Attorney of the plaintiff namely Dilip Kumar Sarkar examined himself as P.W.1. Daughter of the plaintiff namely Smt. Jayashree Choudhury (Sarkar) has been examined as P.W.2 and another witness namely Promode Gope has been examined and numbered as P.W.4. It appears that cross-examination of P.W.1 has been marked as P.W.3 wrongly and that was never corrected by the trial Court or the appellate Court. 8. In support of the case of the plaintiff, following documents were proved:- Exbt.1- original general power of attorney executed by the plaintiff Sri Nil Mohan Chowdhury in favour of PW.1 Sri Dilip Kr. Sarkar. Exbt.2- the certified copy of sale deed bearing No.1-1155 dated 20.7.2004. Exbt.3- certified copy of writ petition bearing No.W.P.(C) 202/2005. Exbt.4- the certified copy of the counter affidavit filed by the respondent No.1 to 3 in W.P.(C) 202 of 2005. Sarkar. Exbt.2- the certified copy of sale deed bearing No.1-1155 dated 20.7.2004. Exbt.3- certified copy of writ petition bearing No.W.P.(C) 202/2005. Exbt.4- the certified copy of the counter affidavit filed by the respondent No.1 to 3 in W.P.(C) 202 of 2005. Exbt.5- the certified copy of the order dated 27.3.2006 passed by the Hon’ble High court in W.P.(C) 202 of 2005. Exbt.6 series- the copy of the Notice dated 17.2.2005 along with its postal receipt. 9. The defendant examined himself as D.W.1 and also examined three more witnesses namely- D.W.2 Tridib Prasad Choudhury, D.W.3 Abhijit Bhattacharjee and D.W.4 Nripendra narayan Chakraborty. It may be mentioned here that there is no witness number written on the top of the examination-in-chief submitted by affidavit and numbering of witnesses gathered from the sheet of cross-examination of those witnesses. Trial Courts are directed to take care of these sorts of apparent mistakes which should not happen in future. 10. In support of his case, the defendant proved the following documents:- Exbt.A-certified copy of khatian No.2854 of mouja-Ganki, Tehsil-Khowai. Exbt.B-copy of newspaper namely ‘Dainik Sambad’ dated 8.8.2006. Exbt. C series-the original money receipt of Khowai Nagar Panchayat dated 8.2.2007 with assessment report of Nagar Panchayat dated 10.1.2007. Exbt. D (subject to objection)-the copy of bank pass book No.01190013832 of S.B.I., Teliamura Branch in the name of defendant Uttam Chakraborty (2 sheets). Exbt. E series-the original 33 Nos. of rent receipts from the month of April, 2004 to November, 2006 (subject to objection). Exbt. F series-two original electricity bills dated 7.8.2009 and 26.8.2010 issued in the name of Uttam Chakraborty. Exbt.G- the copy of electricity pass book in the name of Uttam Chakraborty. 11. Trial Court decided the issues in favour of the plaintiff and decreed the suit. 12. Aggrieved, the defendant preferred T.A. 33 of 2011 in the Court of District Judge and by the impugned judgment and decree, the learned Addl. District Judge, Court No.4 dismissed the appeal and hence, this second appeal is filed challenging the concurrent finding of two Courts below. 13. It is emphatically submitted by learned Sr. counsel, Mr. Majumder for the appellant that the trial Court as well as the appellate Court committed a serious mistake of law in not considering the oral evidence adduced by the defendant applying the provisions of Section 91 and 92 of the Evidence Act. According to Mr. Majumder, learned Sr. 13. It is emphatically submitted by learned Sr. counsel, Mr. Majumder for the appellant that the trial Court as well as the appellate Court committed a serious mistake of law in not considering the oral evidence adduced by the defendant applying the provisions of Section 91 and 92 of the Evidence Act. According to Mr. Majumder, learned Sr. counsel, Section 91 is not at all attracted in the facts of the present case and the provisions of Section 92 also shall not apply since the defendant taken a clear plea that the impugned sale-deed was executed with a different intention than that what has been embodied in the recitals of the deed. While the defendant has taken a clear plea that the entire document itself was with a different intention than that what has been stated in the document itself, oral evidence may be adduced as contemplated in Section 92 and since the trial Court as well as the appellate Court failed to consider that aspect of the law, the judgment and decree passed by the trial Court and affirmed by the appellate Court are simply perverse finding and cannot stand in law. 13.1 In support of his contention, learned counsel has referred the cases of (1) Tyagaraja Mudaliyar & Anr. Vrs. Vedathanni, reported in 1936 PC 70; (2) Bhaskar Waman Joshi (deceased) & Ors. Vrs. Shrinarayan Rambilas Agarwal (deceased) & Ors., reported in AIR 1960 SC 301 ; (3) Smt. Sumati Bala Majumder & Ors. Vrs. Narendra Kumar Das, reported in AIR 1975 GAUHATI 43; and (4) Smt. Gangabai Vrs. Smt. Chhabubai, reported in AIR 1982 SC 20 . 13.2 Per contra, argued by learned counsel, Mr. Biswas that in a case of concurrent finding of facts, this Court in a second appeal should not interfere unless there is gross perversity in the finding. Mr. Biswas conceded the submission of Mr. Majumder to the extent that Section 91 is not applicable in the given facts and circumstances of the suit but according to Mr. Biswas, the ratio of decisions referred by learned counsel, Mr. Majumder are not applicable in the given facts and circumstances of the present suit since the fact of those reported cases were clearly distinguishable and that in those reported cases, there were something ingrained and inherent material to say that it was not an out and out sale. Biswas, the ratio of decisions referred by learned counsel, Mr. Majumder are not applicable in the given facts and circumstances of the present suit since the fact of those reported cases were clearly distinguishable and that in those reported cases, there were something ingrained and inherent material to say that it was not an out and out sale. Unless there is some inherent and ingrained material to say that the sale-deed executed was actually not a sale-deed and that it was a deed executed completely with a different intention, the Courts should apply the provisions of Section 92. 14. In the case of Tyagaraja Mudaliyar (supra), the Privy Council observed that Section 92 only excludes oral evidence to vary the terms of the written contract and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. So also Section 91 only excludes oral evidence as to the terms of a written contract. Oral evidence is admissible to say that a document executed by a person was never intended to operate as an agreement, but was brought into existence solely for the purpose of creating evidence about some other matter. 14.1 Mr. Majumder, learned Sr. counsel of the appellant relying on the law enunciated by the Privy Council has submitted that Section 92 debars a party in adducing an oral evidence contrary to any terms of the document but does not debar a party in respect of any oral agreement to show that the document was executed on a different intention altogether than that of the recital as a whole of the document. 14.2 In the given facts of Tyagaraja Mudaliyar (supra), it appears that there were materials to show that the document was executed with the intention to create evidence of the undivided status of the family and while deciding the issue it was held that oral evidence was admissible to establish, the fact. In my considered opinion heavy burden lies on the defendant to show and to prove that Exbt.2 was not a saledeed and that it was executed as a security bond and that was not a sale in the real sense. 15. The facts of Tyagaraja Mudaliyar (supra) is clearly distinguishable to that of the fact of present case. In my considered opinion heavy burden lies on the defendant to show and to prove that Exbt.2 was not a saledeed and that it was executed as a security bond and that was not a sale in the real sense. 15. The facts of Tyagaraja Mudaliyar (supra) is clearly distinguishable to that of the fact of present case. Exbt.2 is the document in question which is a sale-deed executed by the defendant in favour of the plaintiff in respect of the suit land. The recitals of the deed is clear and unambiguous and there is nothing to show in the document itself that it was not a sale-deed but a deed executed as a security bond as claimed by the defdt. The defendant pleaded that he took loan of Rs.66,000/- and executed the deed on condition that within a year he would repay the amount to the plaintiff and the plaintiff will re-convey the suit land by a saledeed. In Exbt.2 neither anything stated about such an agreement nor there is any other agreement in writing. There may be an oral agreement as argued by learned Sr. counsel, Mr. Majumder. But nothing stated in the pleadings or evidence of the defendant as to when that oral agreement was entered and in presence of whom. Mr. Majumder, learned Sr. counsel submitted that the sale-deed contains a consideration of Rs.66,000/- whereas the plaintiff was asked by the Registering Authority to deposit deficit stamp duty on a value of Rs.2,34,250/- which shows that the suit land was valued much more. It is, therefore, apparent that it was not a deed of sale and so the defendant was entitled to adduce oral evidence to prove his case that it was not a sale. 16. Mr. Biswas, learned counsel argued that the deed itself clearly stipulates that the price was fixed at Rs.66,000/- and being satisfied the defendant agreed to sell and received the amount as consideration. The payment of the stamp duty as demanded by the Registering Authority cannot be a criteria for coming to a conclusion that the suit land valued more than what has been paid as consideration mentioned in the deed. There is no pleading in the written statement filed by the defendant that suit land was valued more than what has been stated in the document. The submission of learned Sr. counsel, Mr. There is no pleading in the written statement filed by the defendant that suit land was valued more than what has been stated in the document. The submission of learned Sr. counsel, Mr. Majumder cannot be accepted since such a submission will be contrary to the particular terms of the written document. The defendant cannot adduce evidence contrary to what is stipulated in the document itself but he may adduce oral evidence to show altogether his different intention in respect of execution of the deed. 17. There is nothing in the written statement of the defendant as to in whose presence the defendant proposed to return the amount of Rs.66,000/-. In his pleading in Para 9 he he has made an omnibus statement that on several occasions he offered to return the loan amount to the plaintiff even in presence of some persons and requested the plaintiff to reconvey the suit land by executing sale-deed but the plaintiff refused. The name of the D.Ws 2, 3 and 4 nowhere stated in the written statement that they were present when the transaction was held and that in their presence the defendant proposed to return the amount and requested the plaintiff to execute deed of re-conveyance. The defendant is an Advocate practicing for 19 years as stated in the very first line of his cross-examination. D.Ws 2, 3 and 4 are all the colleagues of the defendant and practicing lawyers of Khowai Bar. It is quite surprising that D.Ws 2, 3 and 4 made an identical statement. There is not even a difference of paragraph, coma or stop in the examination-in-chief of those three witnesses submitted by affidavit. I would like to reproduce here the examinationin- chief of D.W.2 submitted by affidavit which reads thus- “I Sri Tridip Prasad Chakraborty, S/O Lt. Trilokesh Prasad Chakraborty of Khowai Town PSKhowai, Dist-West Tripura by faith Hindu by profession Advocate Age 48 years do hereby solemnly affirm and state as follows. I am and Advocate and have been practicing at Khowai being the member of khowai Bar. I know the plaintiff and his daughter Smt. Jayashree Chowdhury (Sarkar) who was also practicing as a lawyer in the Courts at Khowai as a member of Khowai Bar. I am conversant with the facts and circumstances of the present case and also the suit land involved in the present case. I know the plaintiff and his daughter Smt. Jayashree Chowdhury (Sarkar) who was also practicing as a lawyer in the Courts at Khowai as a member of Khowai Bar. I am conversant with the facts and circumstances of the present case and also the suit land involved in the present case. The defendant Sri Uttam Chakraborty purchased the suit land along with the huts thereon in the year 2004 at Master Para, Khowai from one K.D. Paul which is adjacent to my house and there after he made repair, addition and alteration of the existing huts and structures on the suit land and there after started residing in a room of the hut and also leased out one room to one Gopal Singha as monthly tenant. The daughter of plaintiff Smt. Jayashree Chowdhury (Sarkar) used to practice as junior of the defendant and accordingly being in need of some amount as loan for proper repair as well as modification and alteration of the existing old hut on purchased land, the defendant as stated by him availed and amount of Rupees 66000 (Sixty Six Thousands) only from the plaintiff, the father of Smt. Jayashree Chowdhury (Sarkar) with her knowledge. We know that the defendant against security of the said loan amount executed and registered a document in the color of sale deed in respect of the suit land in the month of July 2004 in favour of the plaintiff but we never saw the plaintiff to possess the suit land and the huts thereon and the defendant since his purchase of the suit land and the huts i.e. since the year 2004 has been possessing the suit land and huts and he never handed over the possession of the suit land and huts to the plaintiff in pursuance of the said document in the color of sale deed as the same was only the document of security of the loan amount of Rupees 60000/- and not being the sale and said Rs.66000/- was/is not the market value of the suit land as it was heard by us from the defendant as well as from said Jayashree Chowdhury (Sarkar) and others of the locality. As we could learn on discussion with the plaintiff and the defendant and other that said document of security in the color of sale deed was executed and registered by the defendant in favour of the plaintiff with the oral understanding and agreement with the defendant that when the defendant would repair the loan amount within a year from the date of execution and registration of the said document dated 20/07/2004 the plaintiff would reconvey the suit land in the name of the defendant by execution and registration the document in the color of sale deed. As it was learnt that the defendant though offered the return of the entire loan amount of Rs.66000/- in the month of January 2005 and also on subsequent dates demanded deed of re-conveyance by execution and registration the document in the color of sale deed in respect of the suit land in favour of the defendant with the offer of the said loan amount of Rs.66000/- in presence of others. But the plaintiff even after all such oral agreement with the defendant in present of myself and other Advocates of Khowai Bar Association neither received the return of the loan amount nor executed and registered document in the color of sale deed in respect of the suit land in favour of the defendant rather filed a writ petition in the hon’ble Gauhati High Court Agartala Banch as he could learn subsequently. The suit land so far we know along with the constructions and the huts on it was purchased by the defendant Sri Uttam Chakraborty with the loan amount of Rs.300,000 (Three lac) from the State Bank of India Teliamura Branch as a stated by the defendant at the time of discussions before the execution and registration of the document in the nature of sale deed as the security against the loan of Rs.66000/- as was availed by the defendant from the plaintiff. The discussion was made in presence of the plaintiff his daughter, defendant and also in present of me and other Advocates in the Khowai Bar Association. At the time of said document in the color of sale deed, the value of suit land and the huts thereon was much more valued then Rs.66000/- and thereby so far we know the said document in the color of sale deed was not registered being under value. At the time of said document in the color of sale deed, the value of suit land and the huts thereon was much more valued then Rs.66000/- and thereby so far we know the said document in the color of sale deed was not registered being under value. The story that the plaintiff took over possession of the suit land and the hut in pursuance of the said document in the color of sale deed and made construction there and accommodated his daughter i.e. Smt. Jayashree Chowdhury (Sarkar) who started residing there on the suit land, but the defendant some times in the October 2004 took over forceful possession over the suit land and the huts by removing all belongings of the daughter of the plaintiff etc. are all false and fabricated. We never seen the plaintiff to make any sorts of construction over the suit land and also never seen Smt. Jayashree Chowdhury(Sarkar) in residing in the huts on the suit land. The suit land as I have already stated all along was/is in possession of the defendant. The statement made by me in this examinationin- chief are true my knowledge and I have signed this examination-in-chief by affidavit this 13th day of August 2008 sitting in the Court premises.” 18. D.Ws 3 and 4 made exactly the same statement. It is quite amazing that there is no difference in the statements of all these three witnesses. Be that as it may, in my considered opinion the statements of D.Ws 2, 3 and 4 are simply omnibus statements which carry no value at all. It is evident from the statements of those witnesses that only with a view to support the defendant they stood as witness having no actual knowledge. They stated that they knew that the deed was executed as a security of the loan but how they could know it has not been stated. Nothing that they were present at the time when there was talk between the plaintiff and defendant or that they were present when the transaction actually held. They made another interesting statement that the suit land was purchased by the defendant by taking a loan of Rs.3,00,000/- (three lakhs) from the State Bank but there is no such statement in the pleadings of the defendant. They made another interesting statement that the suit land was purchased by the defendant by taking a loan of Rs.3,00,000/- (three lakhs) from the State Bank but there is no such statement in the pleadings of the defendant. Even in his deposition the defendant did not make any clear statement that he purchased the suit land at a price of Rs.3,00,000/- or more or less and purchase deed of the defendant was also not produced to show the price he had actually paid at the time of his purchase of suit land. 19. Exbt.2 shows that it was written by one Gautam Debnath, an Advocate and there were two witnesses to the Deed namely Soumendra Mitra and Badal Deb. The Deed-writer and those two witnesses to the Deed were the material witnesses of the transaction. The defendant to prove that Exbt.2 was altogether executed with a different intention would examine the scribe of the Deed i.e. Gautam Debnath and the witnesses to the Deed i.e. Soumendra Mitra and Badal Deb but none of those have been examined by defendant to show or to prove that the Deed was not an out and out Saledeed but it was a Deed executed as a security bond and that the intention of the defendant was altogether different from the recitals of the Deed. 20. Exbt.2 was executed on 20.07.2004. According to the defendant the Deed was executed on condition to repay the amount of Rs.66,000/- within a year and that the plaintiff will execute a Recoveyance Deed. The plantiff’s case is that the Sale-deed was tampered and mutilated and in the counter affidavit filed by the State-respondents in the writ petition it was stated that the Sale-deed was tampered and mutilated by some staff of the office of the Sub-Registrar and the interested person. In the writ case admittedly the defendant did not appear and did not contest it. The writ case was disposed of by order dated 27.03.2006. The order reads as follows:- “Heard Mr. S. Lodh, learned counsel for the petitioner. Heard Mr. U.B.Saha, learned senior counsel assisted by Mrs. A. S. Lodh, learned counsel for the respondents. It is stated by Mr. The writ case was disposed of by order dated 27.03.2006. The order reads as follows:- “Heard Mr. S. Lodh, learned counsel for the petitioner. Heard Mr. U.B.Saha, learned senior counsel assisted by Mrs. A. S. Lodh, learned counsel for the respondents. It is stated by Mr. Lodh, learned counsel for the petitioner, and not disputed by the learned counsel for the respondents that the matter has now been amicably settled out of court and this case be disposed of in accordance with the following terms and conditions. (i) the petitioner has agreed to pay the deficit stamp duty of the value of Rs.8,450/- and the registration fees due within one month from today; (ii) on receipt of the aforesaid amount, the Sub- Registrar shall issue a certified copy of the sale deed in-question with an endorsement that the same is issued due to loss of the original sale deed; (iii) Certified copy, on receipt of the amount, will be issued within 15 days. Ordered accordingly. The parties are directed to bear their own costs. A copy of the order be furnished to the learned counsel for the respondents.” 21. Pursuant to the above order, a certified copy of the sale-deed was handed over to the plaintiff by the Sub- Registrar which is admitted by the defendant. The defendant did not contest the writ petition. Had the defendant executed Exbt.2 with a different intention he would appear before the High Court in the writ petition and would submit his case by filing his affidavit. He clearly stated that in his deposition that he did not appear and so there was no question of compromise with him. Copy of the counter affidavit filed by respondent Nos. 1, 2 and 3 i.e. the State-respondents of the writ case has been proved and while deciding issue no.3 the trial Court made clear observation on the issue of alleged mutilation of the original deed executed by the defendant. 22. If the contention of the defendant is true that he offered the amount to the plaintiff and requested him to execute Reconvayance Deed, definitely he would make it within one year from the date of execution of Exbt.2 i.e. before 20.07.2005 but there is neither pleading nor evidence that he did so before 20.07.2005. 22. If the contention of the defendant is true that he offered the amount to the plaintiff and requested him to execute Reconvayance Deed, definitely he would make it within one year from the date of execution of Exbt.2 i.e. before 20.07.2005 but there is neither pleading nor evidence that he did so before 20.07.2005. The defendant made only omnibus statement that he offered the amount of Rs.66,000/- in presence of some persons which is absolutely a vague statement. The plaintiff got certified copy of the Deed as per judgment dated 27.03.2006 in the writ case and he filed the suit on 10.10.2006. The defendant neither issued any notice nor set up any counter claim to say that it was not a sale as contemplated in Exbt.2 and that it was a security bond. 23. In the case of Bhaskar Waman Joshi (supra) the Supreme Court in Para 7 of the judgment has observed- “7.The proviso to this clause was added by Act XX of 1929. Prior to the amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed. The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property. As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji v. P. Parthasaradhi, 51 Ind App 305: ( AIR 1924 PC 226 ), the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor, the appearance being laboriously maintained by the words of conveyance needlessly iterating the description of an absolute interest or the right of repurchase bearing the appearance of a right in relation to the exercise of which time was of the essence is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of -the documents may of course be given. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible.” 24. The fact of that case is clearly distinguishable to that of the fact of the present case. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible.” 24. The fact of that case is clearly distinguishable to that of the fact of the present case. In that case the transferor under the Deed contended that the property transferred was intended to be mortgaged under a Deed of conditional sale. The transferee contended that by the Deed an absolute conveyance of the property thereby conveyed was intended and that convey was subject to condition to repurchase to be exercised within a period of 5 years from the date of the Deed. In the present case there is no such stipulation in the Deed intending to reconvey the suit land. In that reported case, the Court at first instance dismissed the suit holding that the transaction when the Deed was of the nature of absolute conveyance with a condition of repurchase and the period limited in the Deed for conveyance has expired long before the date of the suit. The High Court held that the transaction was a mortgage by a conditional sale and directed that redemption decree be passed. 25. In the case of Smt. Sumati Bala Majumder (supra), the Gauhati High Court has held that Section 92 does not preclude a party from showing that the writing was not really a contract between the parties, but was only a fictitious or colourable device to cloak something else. All contracts must be made “animo contrabandi” and parol evidence is admissible to show that there was no animus, that a contract as embodied in a document was never intended to be acted upon but was made for some collateral purpose. The finding was passed on the decision in the case of Tyagaraja Mudaliyar (supra). The fact of that case was also clearly distinguishable to that of the fact of the present case. It was a case of Specific Performance of Contract and since the fact was different, the ratio of that decision cannot be applied to support the case of the defendant. 26. The Case of Smt. Gangabai (supra) is also on a different context. It was a case of Specific Performance of Contract and since the fact was different, the ratio of that decision cannot be applied to support the case of the defendant. 26. The Case of Smt. Gangabai (supra) is also on a different context. In Para 11 of the judgment, the Apex Court has observed- “11.The next contention on behalf of the appellant is that sub-sec.(1) of S. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-sec. (1) of S. 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to S. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-sec. (1) of S. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. It is clear to us that the bar imposed by sub-sec. (1) of S. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another v. Vedathanni( AIR 1936 PC 70 ). The Trial Court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.” The fact of that case was that there was an agreement for a loan and it was decided to simultaneous execution of a nominal document of sale and a rent note. 27. In my considered opinion in the absence of any such cogent material to show that there was altogether a different intention to that what has been clearly spelt out in Exbt.2, the defendant do not have any case to show that it was not a sale-deed. Though learned Sr. counsel, Mr. Majumder has strenuously argued but the pleadings and evidence of the defendant does not support the argument advanced by learned Sr. counsel, Mr. Majumder. 28. The next argument advanced by Mr. Though learned Sr. counsel, Mr. Majumder has strenuously argued but the pleadings and evidence of the defendant does not support the argument advanced by learned Sr. counsel, Mr. Majumder. 28. The next argument advanced by Mr. Majumder is that the suit itself was not maintainable for not seeking declaration of title while the defendant clearly denied the execution of a sale-deed. In support of his contention, he has referred the case of Anathula Sudhakar Vrs. P. Buchi Reddi & Ors., reported in (2008) 4 SCC 594 and the case of P. Chandrasekharan & Ors. Vrs. S. Kanakarajan & Ors., reported in (2007) 5 SCC 669 . 29. Mr. Biswas, learned counsel for the plaintiff submitted that a declaration is required when the defendant’s pleading raises a serious cloud over the title of the plaintiff. The defendant may raise, submitted Mr. Biswas, learned counsel, many points or issues to avoid a decree against him and unless those points or issues raise a doubt which a reasonable and prudent man would apparently take into consideration, there is no need of having a declaration. He also relied on the decisions of the Apex Court in the case of Anathula Sudhakar Vrs. P. Buchi Reddi & Ors., reported in (2008) 4 SCC 594 and the case of Kurella Naga Druva Vudaya Bhaskara Rao Vrs. Gallajani Kamma, reported in (2008) 15 SCC 150 . 30. No doubt the defendant raised an issue that Exbt.2 was not a sale-deed but was a Deed executed as a security bond. Ordinarily while such a stand is taken by the defendant, the plaintiff would seek a declaration of title. The plaintiff, in the suit, only sought for recovery of possession, relying on Exbt.2 that he purchased the suit land. 31. Both side relied on the decision in the case of Anathula Sudhakar (supra). In that case, in Para 12 of the judgment, the Apex Court formulated four questions for decision namely - “12. On the contentions urged, the following questions arise for our consideration in this appeal: (i) What is the scope of a suit for prohibitory injunction relating to immovable property? (ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction? On the contentions urged, the following questions arise for our consideration in this appeal: (i) What is the scope of a suit for prohibitory injunction relating to immovable property? (ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction? (iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court? (iv)What is the appropriate decision?” 32. While deciding question No.(ii) the Apex Court in Para 13 and 14 of the judgment observed- “13.The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1.Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 14. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.” 33. The above observation of the Apex court clearly contemplates that the pleading of the defendant must raise a serious doubt or cloud over the plaintiff’s title and only in such a case there is a need for the plaintiff to seek a declaration of title and otherwise it does not require. The above observation of the Apex court clearly contemplates that the pleading of the defendant must raise a serious doubt or cloud over the plaintiff’s title and only in such a case there is a need for the plaintiff to seek a declaration of title and otherwise it does not require. Here in this suit the defendant has raised an issue that Exbt.2 was not a sale-deed but a security bond but there was nothing prima facie to show that it was not a sale. Though a plea was taken it did not create any serious dispute or cloud over the plaintiff’s title and hence, I find no reason at all to interfere with the concurrent finding of the two Courts below. 34. In the case of Kurella Naga Druva Vudaya (supra), the Supreme Court while deciding a similar question relying on the case of Anathula Sudhakar (supra), in Para 16 observed thus:- “16. The plaintiff had purchased the suit land under registered sale deed dated 10.4.1957. Defendant did not claim title with reference to any document but claimed to have perfected title by adverse possession. A mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. The plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable. We are fortified in this view by the following observations of this Court in Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. & Ors. [ 2008 (4) SCC 594 ] : "14.We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration. ...." 35. Since the defendant has utterly failed to prove that Exbt.2 was not a sale-deed but a security bond, though the plaintiff was supposed to seek a declaration of title but in the given facts and circumstances of the suit for not seeking a declaration in my considered opinion, the suit of the plaintiff should not fail and the observation of the Courts below should not be disturbed. 36. Learned counsel, Mr. Biswas further argued that the concurrent finding of the trial court and the first appellate Court should not be disturbed in a second appeal unless there is a substantial question of law. Learned Sr. counsel, Mr. Majumder referring to the decision of P. Chandrasekharan (supra) has submitted that while the question was raised in respect of a recital of a document, it would amount to a substantial question of law. 37. The word “substantial” prefixed to question of law, does not refer to the stakes involved in the case, nor intended to refer only to law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. Substantial question of law means not only substantial question of law of general importance but also substantial question of law between the parties arising in the case. In the context of Section 100 of CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. 38. In the case at hand, the trial Court as well as the appellate Court arrived at a finding that Exbt.2 was a saledeed. In the context of Section 100 of CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. 38. In the case at hand, the trial Court as well as the appellate Court arrived at a finding that Exbt.2 was a saledeed. In the second appeal the issue was raised that the finding was perverse finding and it was argued that Exbt.2 was not a sale-deed but was a deed executed with a different intention. So, in my considered opinion, a substantial question of law was involved for decision of this court and therefore, I have meticulously gone through the evidence and materials on record. 39. In the case of Hero Vinoth (minor) Vrs. Seshammal, reported in (2006) 5 SCC 545 in Para 23 and 24 observed thus:- “23.To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See : Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [ (2001) 3 SCC 179 ]. 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. (See : Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [ (2001) 3 SCC 179 ]. 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.” 40. In the case of Santosh Hazari Vrs. 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.” 40. In the case of Santosh Hazari Vrs. Purushottam Tiwari, reported in (2001) 3 SCC 179 referred by learned Sr. counsel, Mr. Majumder, the Supreme Court in Para 14 of the judgment observed- “14.A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 41. The same principle has been enunciated by the Apex Court in the case of P. Chandrasekharan (supra) referring to Hero Vinoth (supra). I am not agreeing with Mr. Biswas that there is no substantial question of law for admitting the second appeal. 42. In the case of P. Chandrasekharan (supra), the Supreme Court in Para 13 and 14 observed- 14. The same principle has been enunciated by the Apex Court in the case of P. Chandrasekharan (supra) referring to Hero Vinoth (supra). I am not agreeing with Mr. Biswas that there is no substantial question of law for admitting the second appeal. 42. In the case of P. Chandrasekharan (supra), the Supreme Court in Para 13 and 14 observed- 14. This Court in Hero Vinoth (supra) opined that the following question of law set out from para 4 gives rise to a substantial question of law and would set aside the judgments of the courts below stating : "12.We shall first deal with the question relating to jurisdiction of the High Court to interfere with the concurrent findings of fact. Reference was made by learned counsel for the appellant to Chandra Bhan v. Pamma Bai (2002) 9 SSC 565 and Sakhahari Parwatrao Karahale v. Bhimashankar Parwatrao Karahale (2002) 9 SCC 608. So far as the first decision is concerned, in view of the factual findings recorded by the lower court and the first appellate court it was held that interference with the concurrent findings of fact is not justified. The question related to possession and the two courts primarily considering factual position had decided the question of possession. In that background, this Court observed that jurisdiction under Section 100 CPC should not have been exercised. So far as the second decision is concerned, the position was almost similar and it was held that findings contrary to the concurrent findings of the lower courts and having no basis either in pleadings, issues framed or in questions actually adjudicated upon by any of the lower courts cannot be sustained. That decision also does not help the appellant in any manner as the factual scenario is totally different in the present case." This Court even went through the depositions of the witnesses examined in the case for the purpose of upholding the judgment of the High Court.” 43. Referring to the Fifty-fourth Report of the Law commission of India, the Supreme Court in the Case of Gurdev Kaur & Ors. Vrs. Kaki & Ors., reported in (2007) 1 SCC 546 in Para 61 of the judgment observed that- “61. Referring to the Fifty-fourth Report of the Law commission of India, the Supreme Court in the Case of Gurdev Kaur & Ors. Vrs. Kaki & Ors., reported in (2007) 1 SCC 546 in Para 61 of the judgment observed that- “61. In the 54th Report of the Law Commission of India, it is incorporated that it may be permissible to point out that a search for absolute truth in the administration of justice, however, laudable, must in the very nature of things be put under some reasonable restraint. In other words, a search for truth has to be reconciled with the doctrine of finality. In judicial hierarchy finality is absolutely important because that gives certainty to the law. Even in the interest of litigants themselves it may not be unreasonable to draw a line in respect of the two different categories of litigation where procedure will say at a certain stage that questions of fact have been decided by the lower courts and the matter should be allowed to rest where it lies without any further appeal. This may be somewhat harsh to an individual litigant; but, in the larger interest of the administration of justice, this view seems to us to be juristically sound and pragmatically wise. It is in the light of this basic approach that we will now proceed to consider some of the cases which were decided more than a century ago.” Para 68, 69 and 70 of the said judgment also reads as follows:- “68.The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, insofar as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on questions of law. 69. The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. This is implicit in any legal system where the higher courts have authority to make binding decisions on questions of law. 69. The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. 70. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question.” 44. In the case of Laxmidevamma & Ors. Vrs. Ranganath & Ors., reported in (2015) 4 SCC 264 , the Supreme Court in Para 16 of the judgment observed- “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” 45. In the present case, the trial Court and the appellate Court arrived at a concurrent finding that Exbt.2 was a sale-deed executed by the defendant and thereby sold out the suit land to the plaintiff. The defendant raised the issue that he never handed over possession but the oral evidence of the plaintiff and the defendant since considered by the trial Court, I do not like to interfere in the concurrent finding of fact. The substantial questions of law what are formulated by this Court have already been decided that the judgment and decree passed by the Courts below do not suffer from perversity and that in the absence of a declaration in the given facts and circumstances of the suit the recovery of possession may be directed as claimed by the plaintiff. 46. In view of the discussions made above, the appeal is found to be devoid of any merit and hence, stands dismissed with costs. 47. Send back the L.C. records along with a copy of this judgment.