Gauhati High Court
Page No.# 1/2 vs Sri Bogiram Das on 14 July, 2025
Page No.# 1/20
GAHC010104542025
2025:GAU-AS:8961
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/78/2025
SRI SADHU DAS
SON OF LATE DULAL DAS
2: SRI SANJU DAS
SON OF SRI SADHU DAS
3: SRI SANJIB DAS ALIAS MONU DAS
SON OF SRI SADHU DAS
4: SRI RANJAN DAS
SON OF SRI SADHU DAS
ALL ARE RESIDENT OF HAHCHOWA GAON
NA BHANGA
DIST GOLAGHAT
ASSA
VERSUS
SRI BOGIRAM DAS
SON OF LATE MULAI DAS, RESIDENT OF UTTAR DALIJOLIA GAON,
DANICHAPORI, GOLAGHAT, ASSAM
2:SRI PRODIP DAS
SON OF SRI MADHU DAS
RESIDENT OF HAHCHOWA GAON
NABHANGA
GOLAGHAT
ASSA
Advocate for the Petitioner : ATIULLAH HAWARI, MR. A K GUPTA
Advocate for the Respondent : ,
Page No.# 2/20
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
14.07.2025
Heard Mr. A.K. Gupta, learned counsel for the appellants.
2. In this appeal, under Section 100 of the CPC, the appellants have
challenged the correctness or otherwise of the judgment and decree dated
14.02.2025, passed by the learned Civil Judge (Senior Division), Golaghat
(first appellate court hereinafter), in Title appeal No. 05/2024.
3. It is to be noted here that vide impugned judgment and decree, dated
14.02.2025, the learned first appellate court had set aside the judgment
and decree, dated 08.02.2024, passed by the learned Civil Judge (Junior
Division) No. 2, Golaghat (trial court hereinafter) in Title Suit No. 06/2017,
and decreed the suit of the plaintiff declaring their joint right, title and
interest and ownership over the suit land and also by holding that the
plaintiffs are entitled to recover possession of the suit land by returning
Rs.10,000/ along with interest @ 6% with effect from 27.12.2001 till
14.02.2025 to the defendants and by evicting the defendants in case the
defendants failed to vacate the same.
4. For the sake of convenience, and to avoid confusion, the parties
herein are referred to in the same status, as they appeared in the suit.
5. The background facts, necessary to deal with the present appeal, are
briefly stated as under:-
“The respondents herein, as plaintiffs, instituted a title suit, being Title
Page No.# 3/20Suit No. 06/2017, with the following prayers:-
(a) For declaration that plaintiffs are the joint
owner of the suit land and have right, title and
interest over the suit land;
(b) For direction to the defendant No.1 to accept
Rs.10,000/ from the plaintiff No.1 and to vacate
the suit land by all the defendants, within
statutory period of 60 days by removing all their
structures;
(c) Decree for ejectment of the defendants, their men
and agents by demolishing all structures standing
thereon;
(d) For a decree of permanent injunction restraining
the defendants, their men, agents or any other
persons claiming under them from entering into the
suit land and interfering with its peaceful
possession by plaintiffs in any manner in future;
(e) Any other relief/reliefs the plaintiffs are
entitled to in law and equity;
The pleaded case of the plaintiffs/respondents is that they had
inherited from their father, namely, Mulai Das a plot of land measuring
3 Bighas 4 Kathas, under Dag No. 296 and Patta No. 18. Their names
were mutated after the demise of Mulai Das. And they used to pay
land revenue in respect of the same. Thereafter on 17.12.2001, on
account of illness of the wife of the plaintiff No.1, he had borrowed
Rs.10,000/ from the defendant No.1 for her treatment and as per oral
agreement he had delivered possession of the suit land to him as a
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mark of interest of the borrowed money till its repayment. It is the
pleaded case of the plaintiffs that at the relevant time defendant No.1
took the signature of plaintiff No.1 over two blank papers as a token of
acknowledgement of receipt of money and the plaintiff No.1 signed the
same in good faith as he was suffering from mental agony at that time
and he had never executed any written agreement in favour of the
defendant No. 1. Then in the year 2006, the plaintiff arranged
Rs.10,000/ that he borrowed from the defendant No. 1 and requested
the defendant to accept the same. But, Defendant No.1 refused to
accept the same, instead he along with defendant No. 2, 3 and 4
started construction over the suit land and though the plaintiffs
resisted the same they could not succeed. Then on 11.02.2007, the
plaintiff along with some of his co-villagers went the house of the
defendants and requested him to accept the borrowed amount and
hand over the possession of the land. But, the defendants refused to
accept the amount and to hand over the possession of the land. The
plaintiffs then initiated a proceeding under Section 145 of the Code of
Criminal Procedure upon which Misc. Case No. 15/2007 was registered
and pending for adjudication. Thereafter, the plaintiffs had sent legal
notice on 21.02.2007 to return possession of the suit land after
accepting the borrowed sum but the defendants sent their reply stating
that he had executed an agreement on 23.12.2000 and possession of
the suit land was delivered after accepting the consideration. But, in
fact the plaintiff did not execute any document in favour of the
defendant in respect of the suit land.
Then, being left with no other option, the plaintiffs had filed the
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Title Suit No. 06/2017, praying for the aforementioned reliefs. The
defendants entered appearance and contested the suit by filing their
written statement, wherein they had taken a stands that there is no
cause of action, and it is not maintainable in law and facts and is
barred by the law of limitation and that on 23.12.2000, the plaintiff
No.1 had executed an agreement of sale with defendant No.1 in
respect of 3 Bighas and 3 Kathas of land under Dag No. 296 and Patta
No. 18 of Hahchowa Gaon in Missamora Mouza for consideration of
Rs.10,000/ and the plaintiff No. 1had received an advanced amount of
Rs. 4000/, on 23/12/2000 and delivered possession of the suit land
and since then, they have been possessing the same without
interruption. Then on 27/12/2001, the plaintiff had received the
remaining amount of consideration of Rs.6,000/ from the defendant
No.1, by putting his signature on the agreement in presence of
witnesses.
The defendant No.1 had also filed counter-claim for decree of
declaration of right, title, interest and confirmation of possession over
the suit land. Alternatively, he also prayed for perfection of his right,
title and interest over the suit land by way of continuous, uninterrupted
and open physical possession of the suit land and any other
relief/reliefs the defendants are entitled to.
Thereafter, the learned trial court had framed following issues:-
(i) Whether there is cause of action for
the suit?
(ii) Whether the suit is bad for non-
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joinder of necessary parties?
(iii) Whether the suit is barred by
limitation?
(iv) Whether the plaintiff No.1 borrowed a sum of
Rs. 10,000/ from the defendant No.1 and
delivered possession of the suit land as a mark
of interest of the borrowed money till its
repayment by the plaintiff No.1 to defendant
No.1?
(v) Whether there was an oral contract between the
plaintiff No.1 and defendant No.1, he would
deliver the vacant possession of the suit land
to defendant No.1?
(vi) Whether the plaintiffs have right, title and
interest over the suit land?
(vii) Whether the plaintiffs are entitled to get
right, title and interest over the suit
property?
(viii)To what relief/reliefs the plaintiffs are
entitled to?
Thereafter, the learned trial court had also framed following issues
on the counter-claim:-
(a) Whether there is cause of action for the
counter-claim?
(b) Whether the counter claim is barred by
limitation?
(c) Whether the plaintiff No.1 had delivered
possession of the suit land to defendant No.1 for
consideration amount of Rs. 10,000?
(d) Whether the defendant No.1 has right, title and
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interest over the suit land?
(e) Whether the defendant No.1 is entitled to
protect his possession over the suit land?
(f) Whether the defendant No.1 has perfected his
right, title and interest over the suit land by
continuous, uninterrupted and open physical
possession of the suit land against the
interest of the plaintiffs for more than the
statutory period?
(g) To what relief/reliefs the defendants are entitled
to?
Thereafter, taking evidence and hearing of learned counsel for both
the parties; the learned trial court had dismissed the suit of the plaintiffs
with cost. Instead, decreed the counter-claim of the defendants partly by
holding that the defendants are entitled to be in possession of the suit
land as they were.
Being aggrieved, the defendants had filed an appeal, being Title
Appeal No. 05/2024, before the learned first appellate court and the
learned first appellate court had admitted the appeal and framed
following points for determination:-
(i) Whether the judgment and decree passed by the learned
trial court in the original Title Suit(TS No.06/2017)
is just and proper or need any interference in this
appeal?
Thereafter, discussing the evidence on record and also considering
the documents so exhibited and after hearing learned counsel for both
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the parties, the learned first appellate court had, vide impugned
judgment and decree dated 14.02.2025, set aside and quashed the
judgment and decree, so passed by the learned Civil Judge (Junior
Division) No. 2, Golaghat (trial court hereinafter) in Title Suit No.
06/2017, and decreed the suit of the plaintiffs declaring their joint
right, title and interest and ownership over the suit land and also by
holding that the plaintiffs are entitled to recover possession of the suit
land by returning Rs.10,000/ along with interest @ 6% with effect
from 27.12.2001 till 14.02.2025 to the defendants and by evicting the
defendants in case the defendants failed to vacate the same.
6. Being aggrieved by the aforesaid judgment and decree, so passed by
the learned first appellate court, the appellants have preferred the
present appeal on the following substantial questions of law:-
A. Whether the learned first appellate court is right
in deciding that the counter claim is barred by
limitation?
B. Whether the learned first appellate court is right
in deciding the Issue No.(C) which is neither
framed by the learned trial court nor during the
appeal?
C. Whether the appellant is entitled to protect his
possession over the suit land in view of Section
53(A) of the Transfer of Property Act?
D. Whether the appellants had perfected his title on
the basis of adverse possession?
E. Whether the judgment of the learned 1 st appellate
court is perverse?
Page No.# 9/20
7. During the course of hearing, Mr. Gupta, the learned counsel for
the appellants submits that the learned first appellate court had
committed gross illegality or impropriety by setting aside the judgment
and decree, so passed by the learned Civil Judge (Junior Division) No. 2,
Golaghat in Title Suit No. 06/2017, and in decreeing the suit of the
plaintiffs whereby the joint right, title and interest and ownership of the
plaintiffs, over the suit land was declared and also in holding that the
plaintiffs are entitled to recover possession of the suit land by returning
Rs.10,000/ along with interest @ 6% with effect from 27.12.2001 till
14.02.2025. Mr. Gupta submits that the plaintiff No.1 had entered into an
agreement of the suit land, with the defendant No.1, fixing the
consideration at Rs.10,000/ and received a sum of Rs.4,000/ on
23.12.2000 and another sum of Rs.6,000/ on 27.12.2001 and that he
also handed over possession of the suit land to the defendants. Mr. Gupta
further submits that the defendants have been possessing the suit land
openly and without any interruption. It is the further submission of Mr.
Gupta that the learned first appellate court failed to consider the
evidence and the materials placed on record in its proper perspective and
arrived at an erroneous and perverse finding in respect of Issue No. (b)
that since the case was not filed within 3 years from the date of
execution of agreement for sale the counter-claim is barred by the law of
limitation. It is the further submission of Mr. Gupta that whether the
learned first appellate court is right in deciding the Issue No.(C) which is
neither framed by the learned trial court nor during the appeal. Mr. Gupta
also submits that the learned first appellate court had erroneously
Page No.# 10/20
discarded the agreement for sale i.e. Ext. A, and arrived at a finding that
defendant had failed to prove the agreement. It is also the submission of
Mr. Gupta that the learned first appellate court had erroneously decided
issue No. (d) and 4 and that under Section 53A of the Transfer of
Property Act, the appellant is entitled to protection of his possession
since on receipt of Rs.10,000/ the plaintiff had handed over possession of
the suit land to the defendant. Mr. Gupta also submits that the defendant
is in possession of the suit land with the knowledge of the plaintiff and
hostile to the claim of the plaintiff and since the suit was filed only in the
year 2017, the defendant had perfected his title over the suit land on the
basis of adverse possession and this aspect was not considered by the
learned first appellate court. The learned fist appellate court also failed to
consider the fact that the plaintiff did not prove his right, title and
interest over the suit land. And due to no consideration of aforesaid
factual and legal position, the suggested substantial questions of law
arises and the same are required to be adjudicated after admitting the
appeal and therefore, it is contended to admit the appeal.
8. Having heard the submissions of learned counsel for both the parties,
I have carefully gone through the memo of appeal and the suggested
substantial questions of law and also perused the judgment and decree
dated 14.02.2025, passed by the learned first appellate court in Title
Appeal No. 05/2024 and also perused the judgment and decree dated
08.02.2024, passed by the learned trial court.
9. It appears that the learned trial court had decided issue No.1, 2, 3 in
favour of the plaintiffs. Then decided issue Nos. 4 and 5 in negative.
Thereafter, it had decided issue Nos. 6 and 8 in negative. And while
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deciding the issues in counter claim, the learned trial court had decided
issue No. (a) in affirmative, issue No. (b) in affirmative, issue Nos. (c)
and (d) in affirmative and issue No. (e) in negative and issue No. (f) in
affirmative and issue No. (g) in negative and issue No. (h) in affirmative
and thereafter, it had dismissed the suit of the plaintiffs and decreed the
counter-claim.
10. Further, it appears that learned first appellate court had, while
deciding the point so formulated, had affirmed the finding of the learned
trial court in respect of issue No. 1, also affirmed the finding in respect of
issue No.(a) and upheld the finding of the learned trial court in respect of
issue No. (2), (3) and set aside the finding of the learned trial court in
respect of issue No. 6, thereafter set aside the finding of the learned trial
court in respect of Issue No.(b) as the counter-claim is barred by the law
of limitation. Thereafter, it had decided issue No. (c) in negative against
the defendants and upheld the finding of the learned trial court in respect
of issue No.5 and in respect of issue No. (d) and issue No.(4) the learned
first appellate court had found the same to be redundant and in respect
of issue No. (e) the learned first appellate court had decided the same
against the defendant and interfered with the finding of the learned trial
court in respect of issue No.(f) and interfered with the finding of the
learned trial court in respect of issue No. (g) to limited extent but upheld
the same. Then in respect of issue No. (7) and (8), it had set aside the
findings of the learned trial court and in respect of issue No. (h), it had
set aside the finding of the learned trial court and thereafter, it had
decreed the suit of the plaintiff.
11. Now, coming to the first substantial question of law, so suggested
Page No.# 12/20
by Mr. Gupta, learned counsel for the appellants, I find that the learned
trial court had dealt with the same by framing issue No. (b) and held
that the counter claim is within the period of limitation and moreover, the
limitation for defendants claim started when the plaintiff brought the suit
against them.
11.1. However, the learned first appellate court had found that the basis
of defendants prayer for declaration of his right, title and interest over
the suit land and confirmation of possession thereon is solely based on
Exhibit-‘A’, the agreement for sale, dated 23.12.2000, allegedly executed
by plaintiff No.1., and there is no specific recital as to when the sale
deed is to be executed on the basis of the same. Thereafter, the learned
first appellate court had observed that when the document is silent
regarding the limitation for specific performance of the agreement, the
limitation period may start when the buyer comes to the notice of seller’s
refusal to perform and Article 54 of the Limitation Act prescribes three
years time period for filing the suit of the specific performance of the
contract from the date of refusal and that the defendant No.1 until filing
of the instant suit in the year 2017, never came with the plea of specific
performance of the contract and as such Exhibit-‘A’ automatically
becomes unenforceable on expiry of three years from 23.12.2000.
12. Article 54 of the Limitation Act, provides for limitation of specific
performance of contract. As per said Article, limitation to bring the suit is
3 years and the limitation begins to run from the date fixed for the
performance or if no such date is fixed, when the plaintiff has noticed
that performance is refused.
Page No.# 13/20
12.1. In the instant case, from a perusal of the written statement it
appears the plaintiff and the defendant had entered into agreement for
sale of the suit land on 23.12.2000 and he received Rs.4000/ amount
from the defendant No.1 and rest of the amount he received on
27.12.2001 by putting his signature. Indisputably, no time limit is
prescribed as to when the sale deed is to be executed. And as such, time
is not essence of the said agreement for sale. And that being so, the
period of limitation would start when the defendant No.1 had noticed
that performance is refused by the plaintiff.
12.2. The written statement also indicates that the sale permission was
obtained on 12.02.2007 from the Office of District Commissioner,
Golaghat and after obtaining the sale permission the plaintiff No.1 used
to avoid the defendant No.1 and inspite of several request he did not
come to the Office of the Sub-Registrar, Golaghat to execute the
registered sale deed. But as per plaint, the plaintiff No.1 in the year
2006, had arranged a sum of Rs.10,000/ and requested the defendant to
accept the same and to return the possession of the suit land. Even if we
accept the statement made in the written statement that sale permission
was obtained on 12.02.2007 from the Office of District Commissioner,
Golaghat and after obtaining the sale permission the plaintiff No.1 used
to avoid the defendant No.1 and inspite of several request he did not
come to the Office of the Sub-Registrar, Golaghat to execute the
registered sale deed, then the defendant had first noticed that
performance is refused by the plaintiff. So, 12.02.2007 would be the date
from which the limitation begins to run since the plaintiff had failed to
give specific date when he offered to return the sum of Rs.10,000/ to the
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defendant and the defendant refused to accept it. If we count the
limitation period of three years from 12.02.2007, then the same comes
to an end on 11.02.2010. The suit was filed on 14.02.2017 and the
written statement-cum-counter claim was filed on 01.06.2017 and on
that day, the written statement-cum-counter claim was hopelessly barred
by the law of limitation. Though, however, there appears to be mistake
in counting the date from which limitation begins to run, yet there is no
mistake in arriving at the finding by the learned first appellate court.
13. It is fact that the learned first appellate court has decided issue No.
(C) though no such issue was framed by the learned trial Court nor such
issue was framed during the appeal. It is fact that the learned trial court
had framed an issue being issue No.(C) which read as under:- Whether
the plaintiff No.1 had delivered possession of the suit
land to defendant No.1 for consideration amount of Rs.
10,000. However, the learned first appellate court had decided an issue
as issue No.(C) which read as under:- ” Whether the plaintiff No.1
executed an agreement for sale with defendant No.1 in respect of suit
land for consideration amount of Rs. 10,000/-?”
12.1. But, it appears that the learned first appellate court had directed
the discussion in respect of the said issue and recorded a finding that the
discussion made and decision arrived at this issue is redundant, and
during the discussion it had considered the substance of the issue, and
therefore, this court is of the view that no illegality or impropriety is
committed by the learned first appellate court. In arriving such a finding
this court derived authority from a decision of Hon’ble Supreme Court in
Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs,
Page No.# 15/20reported in (2001) 3 SCC 179, wherein it was held that a first appeal is
a valuable right and unless restricted by law, the whole case would be
open for rehearing before it, both on questions of fact and law, and,
therefore, the judgment of the first appellate Court must reflect
conscious application of mind and it must record findings supported by
reasons on all the issues arising, along with the contentions put forth and
pressed by the parties for decision of the said Court. It was further
observed that, while reversing a finding of fact, the first appellate Court
must come into close quarters with the reasoning of the trial court and
then assign its own reasons for arriving at a different finding.
This, per this Court, would satisfy the requirement of Order 41 Rule 31
CPC. Again in the case of Mrugendra Indravadan Mehta and Others
v. Ahmedabad Municipal Corporation , decided on May 10,
2024, in Civil Appeal Nos.16956-16957 of 2017, Hon’ble
Supreme Court has held that – even if the first appellate Court does not
separately frame the points for determination arising in the first appeal, it
would not prove fatal as long as that Court deals with all the issues that
actually arise for deliberation in the said appeal. Substantial compliance
with the mandate of Order 41 Rule 31 CPC in that regard is sufficient.
14. Now, coming to the third suggested substantial question of law as
to whether the appellant is entitled to protect his possession over the suit
land in view of Section 53(A) of the Transfer of Property Act, I find that
Section 53(A) of the said Act read as under:-
53A. Part performance.–
Where any person contracts to transfer for
consideration any immoveable property by writing
Page No.# 16/20signed by him or on his behalf from which the terms
necessary to constitute the transfer can be
ascertained with reasonable certainty, and the
transferee has, in part performance of the
contract, taken possession of the property or any
part thereof, or the transferee, being already in
possession, continues in possession in part
performance of the contract and has done some act
in furtherance of the contract, and the transferee
has performed or is willing to perform his part of
the contract, then, notwithstanding that where
there is an instrument of transfer, that the
transfer has not been completed in the manner
prescribed therefore, by the law for the time being
in force, the transferor or any person claiming
under him shall be debarred from enforcing against
the transferee and persons claiming under him any
right in respect of the property of which the
transferee has taken or continued in possession,
other than a right expressly provided by the terms
of the contract:
Provided that nothing in this section shall affect
the rights of a transferee for consideration who
has no notice of the contract or of the part
performance thereof.
14.1. For the Doctrine of Part Performance to apply under Section
53A, the following conditions must be satisfied:
(i) Existence of a Contract:- There must be
a contract for the transfer of immovable property for
consideration.
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(ii) Written Contract:- The contract must be
in writing, signed by the transferor or someone on their
behalf, with terms that can be ascertained with reasonable
certainty.
(iii) Transfer of Possession:- The transferee must
have taken possession of the property or continued in
possession in part performance of the contract.
(iv) Act in Furtherance of the Contract: – The
transferee must have done some act in furtherance of the
contract, such as making improvements to the property.
(v) Willingness to Perform:- The transferee must have
performed or be willing to perform their part of the
contract.
14.2. In the case of Nathulal v. Phoolchand, reported in AIR
1970 SC 546: Hon’ble Supreme Court has held that the transferee must
be willing to perform their part of the contract to invoke the protection
under Section 53A. In the case in hand, though the defendant show his
willingness to perform his part of the contract but already the suit came
to be barred by law of limitation. And as such, this doctrine would not
come into his rescue.
15. Coming to the next substantial question of law as to whether the
appellants had perfected his title on the basis of adverse possession, the
learned trial court had discussed the same in issue No.(g) and held that
adverse possession is not long possession of suit land by the defendant
for a period of 12 years or more without intention to possess the suit
land adversely to the title of the plaintiff and latter’s knowledge cannot
Page No.# 18/20
result in acquisition of the title by the defendant to the encroached suit
land. It has also held that a possession is adverse if one holds possession
by denying title of the lessor or by showing hostility by act or words in
cases of trespassers as the case may be against the lessor or other
owner of the property in question. It has also held that in the case in
hand, the defendant No.1 possessed the suit land by virtue of agreement
for sale dated 23.12.2000 and thereafter, it had decided this issue in
negative. The learned first appellate court had also upheld the finding so
recorded by the learned trial court except however, the part that the
observation that defendant No.1 possessed the suit land by virtue of
agreement for sale dated 23.12.2000, and opined that by virtue of
decision in issue No. (c) the defendant No.1 possessing the suit land
merely on delivery of possession thereof by the plaintiff.
15.1. It is well settled in the case of M. Radheshyamlal vs. V.
Sandhya and Anr. in Civil Appeal Nos. 4322-4324 of 2024
arising out of SLP (C) Nos. 19059 – 19061 of 2014, that to establish
adverse possession, the plaintiff must (i) demonstrate possession adverse
to the true owner, (ii) establish continuous possession known to the true
owner (iii) specify the time of adverse possession initiation and (iv) show
open and undisturbed possession for more than 12 years. In the case in
hand, after going through the counter claim and evidence so brought on
record no proper foundation for the adverse possession of the suit land
appears to be made. Therefore, no fault can be found with the finding of
the learned courts below.
16. Coming to the last suggested substantial question of law i.e.
whether the judgment of the learned 1st appellate court is perverse, this
Page No.# 19/20
court after careful perusal of the pleadings of the parties and the
evidence brought on record, found that except what had been pointed
out and discussed and answered herein above nothing could be
demonstrated, which could show that the finding so arrived at by the
learned first appellate court is perverse.
17. It is to be noted here that in the case of Pertap Chunder
Ghose vs. Mohendranath Purkait, reported in ILR (1890) 17 Cal
291 (PC), the Privy Council has observed that the limitation as to the
power of the Court imposed by Sections 100 and 101 in a second appeal
ought to be attended to, and an appellant ought not to be allowed to
question the finding of the first appellate court upon a matter of fact.
In the case of Ramgopal vs. Shamskhaton, reported in ILR (1893) 20
Cal 93 (PC), the Privy Council emphasized that a court of second
appeal is not competent to entertain questions as to the soundness of a
finding of facts by the courts below. The same principle has been
reiterated in Rudr Prasad vs. Baijnath, reported in ILR (1893) 15
All 367. The Court observed that a judge to whom a memorandum of
second appeal is presented for admission is entitled to consider whether
any of the grounds specified in this section exist and apply to the case,
and if they do not, to reject the appeal summarily.
18. In Santosh Hazari (supra), a three-Judge Bench of Hon’ble
Supreme Court has delineated the scope of Section 100 CPC, and held
that the High Court must be satisfied that a substantial question of law is
involved in the case and such question has then to be formulated by the
High Court. It was also held that the word substantial, as qualifying
Page No.# 20/20
‘question of law’, means–of having substance, essential, real, of sound
worth, important or considerable. It is to be understood as something in
contradistinction with- technical, of no substance or consequence, or
academic merely.
19. In H.P. Pyarejan vs. Dasappa, reported in (2006) 2 SCC 496,
Hon’ble Supreme Court observed that the judgment of High Court suffers
from the vice of exercise of jurisdiction which did not vest in the High
Court. Under Section 100 of the Code (as amended in 1976) the
jurisdiction of the Court to interfere with the judgments of the courts
below is confined to hearing of substantial questions of law. Interference
with the finding of fact by the High Court is not warranted if it invokes re-
appreciation of evidence.
20. Thus, in the case in hand, while considering the submission of Mr.
Gupta, the learned counsel for the appellants and examining the memo
appeal, being presented before this court with suggested substantial
question of law, in the light of the principle enunciated herein above, this
court is unable to derive its satisfaction that any grounds specified in
Section 100 CPC exist and apply to the present case, and no question of
law, not to speak of a substantial question of law, flows out of the
impugned judgment and order so passed by the learned first appellate
court.
21. Accordingly, this appeal stands summarily dismissed at this motion
stage itself.
JUDGE
Comparing Assistant
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