1. Heard Mr. M Talukdar, learned counsel for the appellants. Also heard Mr. G Saikia, learned counsel for the respondents.
2. The plaintiff as appellant has preferred an appeal under Section 100 of CPC 1908, against the judgment and order dated 03.09.2009 passed by the learned Civil Judge No.1 at Guwahati in Title Appeal No.27/2007 by upholding the judgment dated 10.04.2007 passed by the learned Munsiff No.2 in Title Suit No.471/2006.
3. The case of the appellant is that she owned and possessed a plot of land measuring 23 bighas and 13 lechas under several dag numbers and patta numbers situated under village Dhupguri, Mouza Luki under Boko revenue circle in the district of Kamrup, Assam. The land revenue of the said land was being paid regularly by the appellant. The said land was used as agricultural land and some of the portion was used as Basti land as there were bamboo and other trees. According to the appellant, it is the ancestral property of the appellant and after the death of her father, Nepal Chandra Rabha, the said land was mutated in her name, and since then she had been in possession of the said land without any interference from others.
4. It is pertinent to mention here that during the pendency of this appeal, the original plaintiff/appellant died and in her place, subsequently her husband and her sons and daughters had been impleaded by substitution. Subsequently, the husband of the original plaintiff also expired.
5. The allegation against the defendant/respondent is that on 13.03.2002 and 02.04.2002, the respondent and his employees had tried to take forcible possession of the suit land, but they failed to do anything. On 13.02.2002, the respondent/defendant threatened the plaintiff/appellant by using filthy languages and stated that the portion of B Schedule land would be occupied by the defendant. It was alleged that the action of the respondent/defendant was absolutely illegal and unauthorized and as such the appellant had filed a title suit for declaration of her right, title and interest and confirmation of possession and for permanent and perpetual injunction.
6. Against the said title suit, the respondent/defendant had filed a written objection wherein it is stated that the appellant/plaintiff was not the daughter and legal heir of Late Nepal Chandra Rabha, she was the daughter of Late Dewan Rabha, and as such she was not entitled to get any property of Late Nepal Chandra Rabha. The father of the appellant lived at village Rukminigaon Guwahati. She was married to one Purna Swargiary of village Rukminigaon Guwahati. After the death of her father, Dewan Rabha, her maternal grandfather took them to the village Sukaniyapara to occupy the land of Dewan Rabha and accordingly she got the land of her father at village Sukaniyapara and permanently settled therein. Subsequently, the appellant/plaintiff got her name fraudulently mutated alongwith the name of Late Nepal Chandra Rabha by showing that she was the daughter and only legal heir of Late Nepal Chandra Rabha. The respondent/defendant owned and possessed 8 bighas 2 kathas and 10 lechas of Dag No.864 and 865 of village Dhupguri, Mouza-Luki by right of purchase.
7. On the pleadings of the parties, six issues were framed by the trial court, out of which two issues are important which are reproduced as follows:
Issue No.4: Whether the plaintiff has right, title, interest and possession over the suit land.
Issue No.5: Whether the plaintiff is entitled for a decree as prayed for.
8. The learned trial court after hearing the learned counsel for the parties has observed in Issue No.4 as follows:
“According to the plaintiff the suit property is the ancestral property of her father Late Nepal Chandra Rabha and after the death of her father, the suit land is mutated in her name and thereafter the plaintiff possesses the land without any interference from others.
In the written statement, the defendant has stated that the plaintiff is not the daughter and the only legal heir of Late Nepal Chandra Rabha. She is the daughter of Late Dewan Rabha and as such she is not entitled to get any property of Late Nepal Chandra Rabha. The elder brother of the defendant purchased 8 bighas 2 kathas 10 lechas of land out of dag number 864 and 865 and thereafter the defendant who as per their family settlement got the land of dag number 864 and 865 in his share and occupied the said land. But the plaintiff made the land periodic in her name along with the pattadar showing her as the daughter and only legal heir of Late Nepal Chandra Rabha ”
The trial court also held as follows:
“In her cross examination, the plaintiff as PW-1 has herself revealed that her father’s name is Dewan Rabha. She further stated that Nepal Chandra Rabha had no children of his own but he had one adopted daughter who had expired. Similarly, the other two witnesses PW-2 and PW-3 disclosed that the plaintiff is not the daughter of the original pattadar Nepal Chandra Rabha. According to PW-3 the plaintiff was not adopted by Nepal Chandra Rabha. This witness has clearly stated in his evidence that during the lifetime of Late Nepal Chandra Rabha, he never transferred the suit land to anybody and it was under his possession.
Therefore, the evidences of the prosecution witnesses clearly reveal that the plaintiff is the daughter of Dewan Chandra Rabha and not the legal heir of the pattadar of the suit land Late Nepal Chandra Rabha. Although the name of the plaintiff is mutated but it is not stated in the jamabandi (exhibit-1) as to how the plaintiff has inherited the suit land from the pattadar Late Nepal Chandra Rabha. Moreover, mere mutation in the record of rights does not confer any right, title and interest over the land.”
Accordingly, the learned trial court had dismissed the Title Suit No. 471/2006.
9. Against the judgment of the trial court, the plaintiff had preferred an appeal before the Court of the learned Civil Judge Guwahati, vide Title Appeal No.27/2007. After hearing the learned counsel for both the parties, the learned Civil Judge has observed which is reproduced as follows:
“………………………….there is no any document of any nature and character to show that the plaintiff is the adopted daughter of Late Nepal Chandra Rabha, who has admitted in her cross examination that her father’s name is Dewan Rabha. Exhibit-2 and 3 are found to be the revenue paying receipts proved by the plaintiff Smt. Pesa Rani Ravani for the year 2001-2002 only. It was admitted by her that she has not paid any rent in respect of the suit land prior to 2001. It was also admitted by her that before her visit to the suit land, it was possessed by the defendant Hangsa Rabha which is a clear admission of the fact that the suit land was in possession of the defendant Hangsa Rabha.”
10. It is also noted down by the learned Civil Judge No.1 in his judgment that “there is no document proved by the plaintiff either legal or conventional that she was ever adopted socially or by registration by Nepal Rabha (since deceased) as his adopted daughter. Rather it was the evidence of the plaintiff side with admission in their respective cross examination of PW-1 to PW-4 that it is not the plaintiff Pesa Rani Ravani, but another girl who was brought up by Late Nepal Chandra Rabha during his lifetime who died later on. From exhibit-1, certified copy of jamabadni of KP Patta No. 376, it is found that as per petition for mutation No.38/86-87 as per order dated 12.04.1986, a total plot of land measuring 23 bighas 13 kathas being premium paid it was corrected. But, the name of plaintiff Smti Pesa Rani Ravani was not inserted in that note and certified copy of the said record of right granting mutation in her name was obtained on 23.08.2001 and the plaintiff started payment of revenue in respect of the suit land from the year 2001 and lasted till 2003 which was proved by her from exhibit-II, III and III(a). There is no other document proved by the plaintiff to justify her right, title, interest and possession over the suit land that it is in her possession since the mutation was granted to her. Rather the record of the learned trial court reveals that it was in the continuous possession of the defendant Hangsa Rabha over the suit land.”
11. Learned first appellate court also referred the judgment of this Court in the case of Manmatha Ranjan Trivedi Vs. Gopal Krishna Tea Estate, reported in 2006 (2) GLR 565, wherein it was clarified that mutation cannot confer any party the absolute right, title and interest over any land, rather it is for the purpose of paying the revenue due to the authority. Accordingly, the first appellate court also dismissed the appeal by affirming the judgment of the trial court. Hence, this second appeal.
12. At the time of admission of this appeal, the following substantial questions of law were framed by this Court:
“(i). Whether the courts below committed illegality by holding that the plaintiff/appellant did not have the right, title and possession over the suit land
(ii). Whether the courts below committed illegality by deciding that the plaintiff/appellant was not the legal heir of the deceased Nepal Ch. Rabha.”
13. It was urged by the learned counsel for the appellant that the appellant has been in possession of the suit land for the last 36 years. The original appellant was the adopted daughter of the actual owner of the land, Late Nepal Chandra Rabha. After the death of Nepal Chandra Rabha, the appellant i.e. Pesa Rani Ravani became the absolute owner of the suit land and subsequently, the said land has been mutated in her name. But, the learned trial court as well as the first appellate court erred in law and facts, while appreciating the evidences of the witnesses and the documents available on record and hence the judgment of both the Courts are perverse and are liable to be set aside.
In support of his submission, the learned counsel for the appellant has relied upon the following case laws:
1. 2003 (3) GLT 453 (Paramesh Sarma and Others Vs. Islam Ali and Others).
2. 2005 (12) SCC 290 [LQ/SC/2005/118] (Basavarajappa Vs. Guru Basamma and Others).
3. MG Mamtha Vs. Tashildar in WP Case No.27592 of 2017 dated 06.02.2018
4. (2019) 8 SCC 729 [LQ/SC/2019/1210] (Ravinder Kaur Grewal Vs. Manjit Kaur and Others.
14. Per contra, learned counsel for the respondent has contended that as per evidence of the witnesses, including the appellant/plaintiff that she was the daughter of Dewan Rabha and not Nepal Chandra Rabha and the original owner of the suit land, Nepal Chandra Rabha had never adopted the appellant as his daughter. Neither any evidence has been adduced nor any document had been furnished in this case regarding any ceremony etc., by following the provisions of Section 6 and 7 of the Hindu Adoption and Maintenance Act 1956 (for short, the Act of 1956).
15. Learned counsel for the respondent has also contended that the question of law raised in this case by the appellant cannot be considered as substantial question of law. Where the facts required for a point of law had not been pleaded, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence, or the meaning of the entries and the contents of the documents cannot be held to be raised as a substantial question of law.
16. It is also the submission of the learned counsel for the respondent that the High Court should be satisfied that the case involves a substantial question of law and not a mere question of law. The general rule is that the high court will not interfere with findings of facts arrived at by the Courts below. But, it is not an absolute rule. Some of the well recognized exceptions are where the courts below have ignored material evidence or acted on no evidence and the courts have drawn wrong inferences from proved facts by applying the law erroneously and the courts have wrongly cast the burden of proof. By referring to the judgment of Hon’ble Supreme Court in 2020(5)SCC 307, reported in {M Vanaja Vs. M Sarla Devi (Dead)}, the learned counsel for the respondent also pointed out Section 6, 7 and 11 of Hindu Adoption and Maintenance Act 1956. In support of his submission, learned counsel for the respondent has also cited the following case laws:
1. 2022 AIR(SC) 4601 {Chandrabhan (deceased) through LRs and others Vs. Saraswati and Others}.
2. 2006 4 Supreme 131 {Hero Vinoth (Minor) Vs. Seshammal}
3. 2006 2 GAU.LJ 446 Manmatha Ranjan Trivedi Vs. Gopal Krishna Tea Estate and Others.
17. Section 6 of the Act of 1956 prescribes the pre-requisites for a valid adoption which reads as follows:
“No adoption shall be valid unless:
(i) The person adopting has the capacity and also the right to take in adoption.
(ii) The person giving an adoption has the capacity to do so.
(iii) The person adopted is capable of being taken in adoption and;
(iv) The adoption is made in compliance with the other conditions mentioned in this chapter.”
18. Section 7 provides that a male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. The consent of his wife has been made mandatory by the proviso to Section 7. Section 9 deals with persons who are capable of giving a child in adoption. The other conditions for a valid adoption are stipulated in Section 11 of the Act of 1956. One such condition in Section 11(vi) which is as under:
“The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of his birth (or in the case of an abandoned child or child whose parentage is not known from the place or family while it has been brought up) to the family of its adoption.”
19. On a bare perusal of the provisions of 6, 7 and 11 of the Act of 1956, two conditions are required to be fulfilled prior to an adoption i.e. consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. Admittedly, in the case in hand, there is no evidence of the witnesses regarding adoption of the plaintiff appellant by Late Nepal Chandra Rabha being in accordance with the provisions of the Act. The most important fact is that there is no whisper in the plaint regarding the adoption of the plaintiff. Rather PW-3 stated in her evidence that the appellant was not adopted by the actual owner of the land Late Nepal Chandra Rabha. Therefore, the appellant had failed to prove that she had been adopted by Late Nepal Chandra Rabha as his daughter during his lifetime. Though the fact cannot be dealt in second appeal as substantial question of law.
20. Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for my consideration is as to whether there is any substantial question of law involved in this second appeal.
21. In the case of Govindaraju Vs. Martamman, reported in AIR 2005 SC 1008 [LQ/SC/2005/138 ;] , the Hon’ble Supreme Court explained the true purport and scope of Section 100 of the CPC as follows:
A perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal. It reads –
“100. second appeal: 1. Save as otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal shall lie to the high court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
2. An appeal may lie under this Section from an appellate decree passed ex-parte.
3. In an appeal under this Section the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
4. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
5. The appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such question.
Provided that nothing in the sub-section shall be deemed to take away or abridge the power of the court to hear for the reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”
22. On a bare look at the provisions, it reveals that the second appeal would lie to the High Court from a decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. It further provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case, formulate the said question. Sub-section 5 provides that the appeal shall be heard on the question so formulated. It reserves the liberty with the respondent against whom the appeal was admitted ex-parte and the questions of law had been framed in his absence to argue that the case did not involve the questions of law framed. Proviso to Sub-Section 5 states that the question of law framed at the time of admission would not take away or abridge the power of the Court to frame any other substantial question of law which was not formulated earlier, if the Court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and it would amount to failure or abdication of the duty cast on the Court. The existence of substantial questions of law is the sine qua non for the existence of jurisdiction under Section 100 of the Code.
23. In the case of Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs, reported in (2001) 3 SCC 178, it was held that after tracing the history of Section 100, the purpose which necessitated and persuaded the Law Commission of India to recommend for amendment of Section 100 concluded that the scope of hearing a second appeal by the High Court is circumscribed by the question formulated by the High Court at the time of admission of the appeal and the High Court has to hear the appeal on substantial question of law involved in the case only. That the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the Court is satisfied of two conditions i.e:
“(i). the High Court feels satisfied that the case involves such question and
(ii). the High Court records reasons for such satisfaction.”
24. The aforesaid judgment has been followed in a number of judgments including the judgment of Thiagarajan and others Vs. Sri Venugopalaswamy B. Koil and others, reported in (2004) 5 SCC 762 [LQ/SC/2004/357] .
25. As per settled law the scope for exercise of jurisdiction by the High Court in second appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari’s case (supra) that 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 a substantial question of law, must be debatable, not previously settled by law of the land or a binding precedent and the answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law involving in the case, it was observed that 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 the Court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties.
26. In Union of India Vs. Ibrahim Uddin and Another, reported in (2012) 8 SCC 148, [LQ/SC/2012/578] the supreme Court once again explained the scope of Section 100 CPC. The relevant observations are extracted hereunder:
Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In State Bank of India and Others Vs. SN Goyal, AIR 2008 SC 2594 [LQ/SC/2008/1075] , this Court explained the terms ‘substantial question of law’ and observed as under:
“The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to question of 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, arising in a case as between the parties…..any question of law which effects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.”
27. In the case of Syeda Rahimunnisa Vs. Malan Bi (dead), by legal representatives and another, reported in (2016) 10 SCC 315, [LQ/SC/2016/1290] the Hon’ble Supreme Court has reiterated the scope of Section 100 of the CPC and the principles of law governing the second appeal has been explained in detail:
“……..the scope of Section 100 of the CPC while deciding the second appeal by the High Court has been the subject matter of several decisions of this Court and thus remains no more res integra. A reference to the two cases on this question would suffice.” In the case of Santosh Hazari (supra), the Hon’ble Supreme Court examined the scope of Section 100 of the CPC and laid down the following propositions as under:
“The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so, it acts illegally or abdication of the duty cast on the Court. The existence of substantial question of law is the sine qua non for the exercise of jurisdiction under the amended Section 100 of the Code.” {see Kailash Purkait Vs. Santosh Kumar Purkait (1997) 5 SCC 438, [LQ/SC/1997/852] Panchu Gopal Barua Vs. Umesh Chandra Goswami (1997) 4 SCC 413, [LQ/SC/1997/617] and Konbiba Dagadu Kadam Vs. Savitri Bai Sopan Gujar, reported in (1999 )3 SCC 722 [LQ/SC/1995/270] }."
28. In the case of Anaphula Sudhakar Vs. P Buchi Reddy (dead) by LRs and others, reported in (2008) 4 SCC 594, [LQ/SC/2008/747] before the Supreme Court four questions arose for consideration, which are extracted as under:
“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, reversed the decision of the first appellate court;
(iv) What is the appropriate decision”
The Supreme Court has summarized the possession in regard to the suits for prohibitory injunction relating to the immovable property, which is observed hereunder:
“a. Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an inference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
b. As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases, where de jure, possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue or title may directly and substantially arise for consideration, as without finding thereon it will not be possible to decide the issue of possession.
c. But a finding on title cannot be recorded in a suit for injunction unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title the Court will not investigate or examine or render a finding on a question of title in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law, relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
d. Where there are necessary pleadings regarding title, an appropriate issue relating to title on which parties laid evidence, if the matter involved is simple and straight forward, the Court may decide upon the issue regarding title even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.
But person having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon a property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
29. In paragraph 31 of Anathula (supra) while allowing the appeal and quashing and setting aside the judgment and order of the High Court, the Supreme Court said something on the scope of Section 100 CPC which is reproduced as under:
“We are therefore of the view that the High Court exceeded its jurisdiction under Section 100 CPC, firstly, in re-examining question of facts, secondly, by going into the question, which were not pleaded and which were not the subject matter of any issue, thirdly, by formulating question of law which did not arise in the second appeal and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration.”
30. Reverting to the present case, this Court is of the opinion that the aforesaid formulated substantial questions cannot be regarded as satisfying the test of being substantial question of law within the meaning of Section 100 CPC. These questions, as rightly pointed out by the learned counsel for the respondent are essentially questions of fact or at best mixed question of law and fact. In any event, the instant second appeal does not involve any substantial question of law as contemplated under Section 100 of the CPC for the following reasons:
(i). Firstly, the trial court and the first appellate court on appreciation of the evidence has concurrently held that the appellant plaintiff failed to prove any right, title and interest over the suit land on the basis of any document. The original plaintiff/appellant had admitted in her deposition that she was not the daughter or legal heir of the actual owner of the property i.e. Late Nepal Chandra Rabha, but her father is Dewan Rabha. Though the original plaintiff/appellant subsequently took the plea that she was adopted by Late Nepal Chandra Rabha, but it was also not proved by any ceremonial function of giving and taking of the adopted child from the custody of her original father to the adopted father as per provisions of Section 6, 7 and 11 of the Act of 1956.
(ii). Secondly, none of the findings of the two courts below be termed as perverse to the extent that no judicial court could ever come to such conclusion and the findings that recorded by the trial court and the first appellate court are not in conflict with any provisions of law governing the issues and that the findings are also not against the pleadings or evidence. In this view of the matter, the findings recorded by the trial court and as well as the first appellate court are not capable of being set aside by this Court in exercise of its second appellate jurisdiction under Section 100 of the CPC.
(iii). Thirdly, apart from what is held above, the questions formulated in the second appeal are neither debatable nor arguable and nor did they involve any question of law which could be said to arise in the case. Therefore, unless the questions framed are debatable or arguable or involves any legal question, this Court has no jurisdiction to formulate such questions treating them to be the substantial questions of law.
31. In the result, the second appeal fails and is dismissed accordingly. However, there would be no order as to costs.
32. LCR be returned back accordingly.
