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2022 DIGILAW 363 (TRI)

Kalpana Sarkar v. Akhil Datta

2022-09-09

T.AMARNATH GOUD

body2022
JUDGMENT 1. This present appeal is filed against the Judgment and Decree dated, 10.04.2019, passed by the learned Addl. District Judge, West Tripura, Agartala, in T.A. 09 of 2018 arising out of the Judgment and Decree dated 22.02.2018 passed by the learned Civil Judge, Senior Division, Court No.1, Agartala, West Tripura in T.S.53 of 2015. 2. The facts of the case, in brief, are that respondent as plaintiff filed a title suit claiming the right title and interest on the suit land and for recovery of possession in respect of the suit land against the defendant-appellant for land measuring 6 gandas comprised in khatian No. 5951 of old CS Plot No. 7098(p), Hal CS plot No. 25610 under Mouja- Badharghat, sheet No. 5, Tehsil- Badharghat. According to the plaintiff-respondent, he is the owner of the suit land, and on the basis of title deed No. 1-7109 dated 09.10.2007 executed by the vendor-defendant, he took possession of the same. He applied for the mutation but the same was not granted in his favour. On 18.05.2008 when the respondent-plaintiff intended to fix pillars on his land, at that time he was resisted by the defendant-appellant, her sons and daughter, and other persons. According to the Plaintiff-respondent, he was dispossesed on 09.10.2008. In spite of his effort, he could not enter into the suit land. Hence, the Plaintiff-respondent filed that instant T.S. No.53 of 2015. 3. The defendant-appellant therein contested the suit by filing a written statement denying the assertions of the plaintiff-respondent. Defendant-appellant therein further took the plea that since she was unable to read and write, the plaintiff-respondent by applying fraud took the thump impression of her on the sale deed wherein she understood that she would sell 2 gandas of land for a consideration of Rs.2,40,000/-. Later when the plaintiff-respondent tried to occupy suit land measuring 6 gandas, at that time, it came to her knowledge that in place of 2 gandas collusively 6 gandas was written. Further according to the defendant-appellant therein she was/is in possession of the suit land. Furthermore, the plaintiff-respondent did not make further payment as per the sale deed. It was the plaintiff-respondent to prove the sale. Further, the mandatory provision of Section 68 of the Evidence Act was not complied with. The Learned Court below decreed the suit in favour of the plaintiff-respondent vide judgment and decree dated 22.02.2018. 4. Furthermore, the plaintiff-respondent did not make further payment as per the sale deed. It was the plaintiff-respondent to prove the sale. Further, the mandatory provision of Section 68 of the Evidence Act was not complied with. The Learned Court below decreed the suit in favour of the plaintiff-respondent vide judgment and decree dated 22.02.2018. 4. Being aggrieved thereby, the defendant-appellant therein preferred an appeal bearing No.T.A.01. of 2018 before the learned First Appellate Court. But the First Appellate Court vide judgment and decree dated 10.04.2019 dismissed the said appeal. 5. Aggrieved thereby, the defendant-appellants herein have filed this instant appeal under Section 100 read with Or.XLII, Rule-1 of the Code of Civil Procedure, 1908. 6. Vide order dated 10.08.2020, the following substantial questions of law were formulated:- '1. Whether the findings of the learned Courts below are perverse? 2. Whether the contents of the Sale Deed(Exbt-1) and the Sale Deed as a whole has been proved in accordance with law?' 7. Heard Mr. G.S. Bhattacharjee, learned counsel appearing for the appellants as well as Mr. S. Bhattacharjee, learned counsel appearing for the respondent. 8. Mr. G.S. Bhattacharjee, learned counsel appearing for the defendant-appellants submits that the sale deed cannot be taken as proof and source of title when admittedly the executrix(vendor) herself is unable to read and write the Bengali script and denied the sale of the quantum of 06 gandas of land. He further submits that the learned First Appellate Court has failed to consider and appreciate the evidence on record in passing the judgment impugned, when the deposition of attesting witness is mandatory for proving the execution and contention of the indenture, under dispute. Staying this, learned counsel appearing for the appellants urged this Court to allow this instant appeal. 9. Mr. S. Bhattacharjee, learned counsel appearing for the plaintiff-respondent submitted that the learned Trial Court and learned First Appellate Court has rightly delivered the judgments and decree and urged this Court to dismiss this instant appeal. Learned counsel further referred to the cross-examination part of D.W.1 before the learned Trial Court which was recorded by the Advocate Commissioner. In said cross-examination the defendant-appellant herself specifically stated that 'I have sold the suit land in favour of the Plaintiff and handed over the same to the plaintiff, now I am possessing the suit land.'. Learned counsel further referred to the cross-examination part of D.W.1 before the learned Trial Court which was recorded by the Advocate Commissioner. In said cross-examination the defendant-appellant herself specifically stated that 'I have sold the suit land in favour of the Plaintiff and handed over the same to the plaintiff, now I am possessing the suit land.'. Referring to the said portion of cross-examination of the defendant-appellant, it is submitted by learned counsel for the respondent that since there is a clear admission by the defendant-appellant herself, so, there is no scope to disbelieve her evidence regarding the transfer of land. 10. To substantiate his argument, he has pressed into service Para- 17, 18, 29 & 23 the Hon'ble Apex Court Judgment passed in Hero Vinoth (Minor) Vs. Seshammal reported in (2006) 5 SCC 545 dated 08.05.2022 which is reproduced as 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. 18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. ( AIR 1962 SC 1314 ) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well 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.' 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. 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 )]. 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. 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 ].' 11. He has also referred to Para-14 of the Hon'ble Apex Court Judgment passed in Parminder Singh Vs. Gurpreet Singh reported in (2018)13 SCC 352 dated 25.07.2017 which is reproduced here-in-under:- '14. In our considered opinion, the question as to whether specific performance of an agreement should be granted or not is essentially in the discretion of the Court. Indeed Section 20 of the Specific Relief Act says so in no uncertain terms. Therefore, once the Trial Court, first and second Appellate Court formed an opinion and decided to grant the specific performance of the agreement to the plaintiff in exercise of their respective discretionary powers, this Court being the last Court in hierarchy cannot disturb such concurrent findings while exercising power under Article 136 of the Constitution of India. As mentioned above, these findings are binding on this Court.' 12. Heard learned counsel appearing for the parties and perused the evidence on record. 13. Admittedly, the defendant-appellants are in possession of the scheduled land and the defendants have received a sum of Rs.80,000/- only. The plaintiff-respondent has not made out the case to say that he is dispossesed from the property. The plaintiff-respondent has not placed anything on evidence to show that he has been delivered peaceful and vacant possession of the scheduled land property by the defendants. The plaintiff-respondent has also not placed any evidence on record to show that the sale consideration of Rs.2,40,000/- has been paid to the defendants and the details as to on what dates the amount has been paid. Even according to the evidence of Deed writer, Sri Partha Paul i.e. P.W.4, in his cross-examination, he has categorically stated that the value of the scheduled property during 2007 is around 8(eight) to 9(nine) lakhs. Even according to the evidence of Deed writer, Sri Partha Paul i.e. P.W.4, in his cross-examination, he has categorically stated that the value of the scheduled property during 2007 is around 8(eight) to 9(nine) lakhs. The vendor-defendant-Smt.Subarna Prava Sarkar was an aged woman. She was bedridden and ill and could not visit the Registration office. Accordingly, arrangements were made to get the document registered by visiting the house of the vendor-defendant. The said deed writer i.e. P.W.4 has not stated that the recitals of the sale deed i.e. Exbt. No.1, 1(i) and 1(ii) have been read over to the vendor- defendant and she had understood and then signed the sale deed. These are the several issues during the course of argument, this Court felt that they were not appreciated by the Courts below. Now since this Court is dealing only with the second appeal, the substantial questions of law which is framed are again reproduced herein-under:- ''1. Whether the findings of the learned Courts below are perverse? 2. Whether the contents of the Sale Deed(Exbt-1) and the Sale Deed as a whole has been proved in accordance with law?' 14. In view of the above, the learned counsel appearing for the defendant-appellants has not advanced the argument for better appreciation of the present appeal. It is needless to observe that in the second appeal, appreciation of evidence that does not form part and parcel of the arguments on substantial questions of law cannot be considered. 15. With the above observation and direction, this instant second appeal stands dismissed. 16. Consequently, pending application(s), if any, also stands closed. Send back the LCRs.