Rakhal Chandra Ghosh VsLaxmi Ghosh and Others

U.B. Saha, J.—This second appeal filed by the appellant plaintiff, hereinafter referred to as ''plaintiff'', u/s 100 C.P.C. arises from the judgment and decree dated 30.11.2002 and 4.12.2002 respectively passed by the learned Additional District Judge, South Tripura, Udaipur in T.A. No. 8 of 2002 confirming the judgment and decree of dismissal dated 31.1.2002 passed by the learned Civil Judge, Junior Division, in Title Suit No. 5 of 2000. Heard Mr. D.R. Choudhury, learned counsel appearing for the appellant-plaintiff and Mr. D. Chakraborty, learned senior counsel appearing for the defendant-respondents.

The subject matter of the suit filed by the plaintiff is a plot of land measuring 0.51 acres, i.e., survey plot being C.S. plot No. 1631 and 1632 corresponding to RS plot No. 3197 and 3196 recorded in C.S. Khatian No. 591, corresponding to RS Khatian No. 1878 of mouja Kakraban described in the schedule of the plaint, hereinafter referred to as the suit land. The suit land along with some other lands originally belonged to one Siraj Mia Sardar and some other persons who have admittedly exchanged their properties in India with some citizens of erstwhile Pakistan, now Bangladesh including the predecessor-in-interest of the respondent-defendants, hereinafter referred to as defendants, with their respective properties in Pakistan (now Bangladesh) in the year 1963. The plaintiff was admittedly appointed as attorney of Siraj Mia and others, hereinafter referred to as grantee of power of attorney, who executed a deed of exchange in terms of the power of attorney (Ext. A) executed on 23.10.1963 which was marked as Ext.-4 in the suit in his own name instead of executing the exchange deed either in favour of his father or in favour of the predecessor-in-interest of the defendants.

Since then, he has been occupying the suit land, but the predecessor-in-interest of the defendant Smt. Subhashini Ghosh managed to record the suit land in her favour in the record of rights both in cadastral survey and in the revisional survey in collusion with the survey and settlement staff. The plaintiff grantor/agent in his plaint also stated that he was never physically disturbed to possess the suit land and on 10.3.2000, the defendants, the legal heirs of deceased Subhashini Ghosh, tried to enter into the suit land with the help of other persons which was resisted by the plaintiff. As the defendants tried to dispossess the plaintiff from the suit land, he filed the suit in question for declaration of right, title and interest over the suit land and also to create perpetual injunction restraining the defendants from transferring the suit land in any manner to the 3rd party.

The defendant, Smt. Laxmi Ghosh, daughter in law of deceased Subhashini Ghosh on her own behalf and also on behalf of her minor son, Debraj Ghosh and Satyajit Ghosh contested the suit by way of filing written statement denying the right, title and occupation of the plaintiff (grantee/agent) over the suit land and also allegations that they were trying to dispossess the plaintiff from the suit land. The specific case of the defendants is that the suit land belongs to themselves being inherited by the predecessors in interest, Smt. Subhashini Ghosh in exchange of her properties in erstwhile Pakistan, presently Bangladesh with the properties of Siraj Miah and others, the grantor of power of attorney in the year 1963 and since then, they are in peaceful possession/occupation over the suit land. They prayed for dismissal of the suit with costs.

The learned Civil Judge, Junior Division, hereinafter referred to as Trial Court, framed six issues which are as under:

(i) Whether the suit is maintainable in its present form as well as in law;

(ii) Whether the plaintiff has any right, title interest over the suit land;

(iii) Whether the plaintiff is in possession over the suit land;

(iv) Whether defendant has been threatening the plaintiff with a view to dispossess him thereto;

(v) Whether the plaintiff is entitled to get any perpetual injunction against the defendants as prayed for;

(vi) Any other relief(s) parties are entitled to.

The plaintiff in support of his case examined as many as five witnesses including him as P.W. 1 and also exhibited some documents. Defendants have also examined four witnesses including the defendant No. 1 and they have also exhibited one document.

After appreciation of the evidence adduced by the parties, the learned trial Court dismissed the suit. The learned trial Court did not rely on the exchange deed, Ext.-4, for want of requisite consideration to entitle the plaintiff to acquire right, title and interest for the land in question and also did not believe the testimony of the witnesses produced by him relating to possession of the plaintiff over the suit land since 1963 as their testimony are contrary to the record of rights prepared in the consecutive survey settlement operation which stands in favour of the defendants and in consequence thereof, dismissed the suit.

Having been aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal before the learned District Judge, South Tripura, being T.A. 08 of 2002 and the same was subsequently transferred to the Court of Additional District Judge.

The plaintiff has taken the following grounds in appeal before the first appellate court:

(a) The trial court committed error in giving importance to the entries on record of rights which are always revisable to decide possession in favour of the defendants;

(b) The plaintiff being the attorney was authorized to execute exchange deed in favour of anybody as he thinks fit and proper which was not considered by the trial Court;

(c) That the trial Court has failed to appreciate the oral and documentary evidence produced by the plaintiff and also misconstrued the relevant provisions of law,

(d) That if the evidence of the plaintiff-appellant was appreciated properly trial court should have decided the suit in favour of the plaintiff.

After hearing the learned counsel of the parties and considering the exhibited documents as well as oral evidence adduced by the witness of the respective parties, the appellate Court passed the impugned judgment and decree as stated supra. Hence, this appeal.

This Court, on 25.3.2003, upon hearing the learned counsel of the plaintiff-appellant issued notice upon the respondents to show cause as to why the appeal should not be admitted as prayed for on the substantial questions of law formulated in the memo. of appeal. Ultimately, on 7.6.2013, the appeal was dismissed for non-prosecution. And thereafter the same was restored to its original file in view of an application filed by the plaintiff-appellant for setting aside the order of dismissal for non-prosecution. The substantial question of law as formulated in the memo of appeal are as under:

(i) Whether the 1st appellate court as well as trial court mis-interpreted the title deed Ext.-A and Ext.-4 which actually confers the title in respect of the suit land in favour of the plaintiff appellant.

(ii) Whether the 1st appellate court as well as the trial Court decided the title as well as the possession of the suit land in favour of the Defendant Respondents basing on the record of rights, i.e., Khatians, Ext.-1 series where khatian does not confer any title and where in the present case the power of attorney as well as the deed of exchange is the document of title and possession.

(iii) Whether the ld. 1st Appellant Court as well as the Trial Court mis-appreciated the evidence adduced by the plaintiff appellant as well as the defendant respondents relating to the possession of the suit land as well as title.

The learned first appellate court in its judgment stated that the plaintiff appellant rests his claim of right, title and interest over the suit land on the basis of the exchange deed exhibited in the trial Court as Ext. 4, admittedly, which was executed by himself as an attorney/grantee on behalf of the original owner Siraj Miah and others in his own favour on the strength of the power of attorney which is marked as Ext. A.

The learned appellate court while considering the case of the parties also considered the documents Ext. 4, exchange deed and Ext. A, power of attorney, and held that the material points to be noted in Ext. 4 is that there is no mention of any property of the plaintiff in Pakistan with which the suit land had been exchanged and secondly, in the schedule of the exchange deed where the descriptions of the property received by the plaintiff in exchange are mentioned, there is no specific particulars of the suit land in the said schedule except the mention of land measuring 0.40 acre of khatian No. 591 of mouja Kakraban without mention of any survey plot number.

The appellate court also considered the definition of exchange as defined in Section 118 of the Transfer of Property Act which is asunder:

''Exchange'' defined: when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an ''exchange''.

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

The plaintiff has stated in his plaint that his landed property in Pakistan had been exchanged with the landed property of grantor Siraj Miah and others in India. But in the exchange deed only the property of one party, i.e., the land got in favour of the plaintiff has been mentioned and the other property, i.e., the property of the plaintiff in Pakistan with which the properties under the exchange deed were exchanged had not been mentioned.

The contention in the power of attorney, Ext. A, is the properties of the parties concerned to be exchanged with each other mentioned in Schedule A and Schedule B of the said power of attorney and there is a specific instruction that the properties of Siraj Miah and others to be exchanged with Smt. Subhashini Ghosh-the predecessor-in-interest of the defendants which included three plots under Khatian No. 591 of mouja-Kakraban covering a total area of 1.89 acres. Out of this amount of land, an area of 1.42 acre of land as surveyed in C.S. plot Nos. 1624, 631 & 1632 had been recorded in CS Khatian No. 591 of mouja Kakraban in favour of predecessor in interest of the defendants as it is found in Ext. 1 series.

The learned appellate court also found that in Ext. A series, i.e., the power of attorney, no property of the plaintiff in Pakistan is included to be exchanged with the properties of Siraj Miah and others in India. Thus question arises how the plaintiff can claim to have exchanged his property in Pakistan and went for execution of the exchange deed in his favour on the strength of Ext. A, being an agent/grantee of the grantor Siraj Miah and others. The learned appellate court also found that the plaintiff as P.W. 1 deposed that in Pakistan, his father Surendra Kumar Ghosh and he himself jointly held the properties but in Ex. A, power of attorney, such contention is not found in the recital. And to support the same, P.W. 1 explained that by mistake, the fact has not been reflected in Ext. A. The contents of the documents cannot be contradicted by oral evidence after elapse of 37 years and admittedly no step has been taken by the plaintiff to correct the mistake. The learned appellate court also noted that in two successive survey settlement operations, the record of rights in respect of the suit land was prepared in respect of predecessor-in-interest of the defendants with their possession. The entries in the record of rights shall be presumed to be correct unless the contrary is proved as it is laid down in Section 43(3) of the TLR & LR Act.

The learned first Appellate Court also found that the evidence on record produced by the defendants are more stronger than the evidence on record adduced by the plaintiff and thus, he has passed the impugned judgment and decree dismissing the appeal preferred by the plaintiff.

By this time, almost ten years have been passed and admittedly the instant appeal has not been admitted formulating the substantial questions of law involved in the case. Thus, as agreed to by the learned counsel for the parties, the matter is taken up for admission hearing on the basis of the substantial questions of law formulated in the memo of appeal and taking note of the impugned judgment and decree.

Admittedly, Schedule-A in the power of attorney is relating to properties belonging to father of the plaintiff Surendra Kumar Ghosh and properties of predecessor in interest of defendant Smt. Subhashini Ghosh and Sunil Ch. Ghosh and another Dwijendra Lal Ghosh in Pakistan and schedule-B is the land belonging to the grantor executor of the power of attorney in India at Kakraban. Udaipur and no land in Pakistan of the plaintiff was shown in the schedule of the power of attorney.

Mr. Choudhury while urging for the relief sought for would contend that the learned Appellate court failed to consider the facts that in the power of attorney, particularly, in paragraph-12, there was specifically mentioned relating to plaintiff''s possession over the land till the exchange deed was executed. The Appellate court also failed to consider that when he was given power of attorney, it was he who had to execute the exchange deed according to his own will, not at the instances of the defendants including the predecessors-in-interest of them.

He further submits that the court below did not consider the facts that the plaintiff was in possession over the suit land on the basis of the said power of attorney, Ext. A. He has also submitted that the khatian was created in favour of the defendants and the plaintiff did not execute the exchange deed in terms of the power of attorney, rather the plaintiff has executed the exchange deed in his own favour vide Ext. 4 without any consideration. He further submits that for passing an order of injunction in a suit, always title is not required, even when a person is possessing the land in question with or without title, then also an order of injunction can be passed in his favour as the possession is the primary requirement for issuing the order of injunction. In support of his aforesaid contention, he has placed reliance on a decision of the Apex Court in

Rajnibai (Smt.) @ Mannubai Vs. Kamla Devi (Smt.) & Ors., (1996) 2 SCC 225

wherein the Apex Court held that in a suit for declaration of title simpliciter, the Court has the power under Order 39, Rules 1 and 2 or even in Section 151 C.P.C. to grant ad interim injunction pending suit. There is no quarrel with the proposition that when a person is in possession of a property and there is a threat to his possession, then he can file a suit for declaration of title and confirmation of possession with a prayer for mandatory injunction. But here in the instant case, fact is different. More so, question of possession of the plaintiff is not admitted by the defendants, rather the defendants claim possession over the suit land and in support of that, they have also produced revenue record which has a presumptive value. Thus, the case of Rajnibai (Smt.) alias Mannubai (supra) in no way helps the appellant plaintiff.

He further contended that even if khatian is created in favour of the parties like the defendants, it would not be the basis of their possession over the suit land. In support of his aforesaid contention, he has also placed reliance upon the decision of the Kerala High Court in

Karthiyayani Amma Vs. Govindan, : AIR 1980 Ker 224

.

In the aforesaid case, the plaintiff appellant filed suit for declaration of title and possession and also for an injunction to restrain the defendants from interfering with the plaint property and destroying a boundary (wada). Though the trial Court decreed the suit declaring that the plaintiff''s had title and possession over the 67 cents of plaint schedule property and that the plaintiff''s were entitled to get the wada, which existed on the western boundary of the plaint schedule property, restored; but in first appeal, the Appellate Court set aside the decree and judgment of the trial court and being aggrieved, the second appeal was preferred wherein Kerala High Court considered the question as to whether a person in possession without title can sustain a suit for injunction against the original owner if he proved possession and ultimately, answered the question in affirmative as in that case, the plaintiff was found in possession. But here, the facts of the case are totally different and thus, the said case has also no application.

Mr. Chakraborty while reverting the contention of Mr. Choudhury has contended that in the instant second appeal as preferred by the plaintiff, no substantial question of law is involved and unless a substantial question is involved, a second appeal cannot be admitted as a matter of right. He has also contended that an appeal u/s 96 C.P.C. is a matter of right, but an appeal u/s 100 C.P.C. can only be admitted when the parameter prescribed in the said section is fulfilled. Both the learned lower court decided the suit in question taking the evidence on record relating to facts not on any question of law. Thus, the instant appeal should be dismissed at the admission stage itself.

He further contended that if this Court concludes that the findings of facts recorded by the court below are perverse being based on no evidence or on irrelevant material, then obviously the appeal preferred by the plaintiff can be entertained and to satisfy this Court what is the meaning and scope of the expression "substantial question of law", he has placed reliance on a decision of the Apex Court in

State Bank of India & Ors. Vs. S.N. Goyal (2008) 8 SCC 92

, particularly para-13 which is as under:

Second appeals would lie in cases which involve substantial questions of law. The word ''substantial'' prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions 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 questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 C.P.C., any question of law which affects 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. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may.

He has also placed reliance on a decision in

Dinesh Kumar Vs. Yusufali, (2010) 12 SCC 740

where the Apex Court following its earlier decision in

Ram Prasad Rajak Vs. Nand Kumar & Bros. & Anr., : AIR 1998 SC 2730

held that existence of the substantial question of law is a sine qua non for exercise of jurisdiction u/s 100 C.P.C. and entering into the question as to whether the need of the landlord is bona fide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record and ultimately, in para-25 of the said Report, the Apex Court noted that the second appeal u/s 100 C.P.C. is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence.

According to him, in the instant case, neither the trial court nor the first appellate court failed to appreciate the evidence on record, nor interpreted any of the documents which can be said to be perverse. Thus, it would not be proper for this court to interfere with the judgment and order passed by the learned trial Court and affirmed by the learned first appellate Court as impugned in the instant appeal.

In the instant case, admittedly the plaintiff did not ask for declaration of his possession, rather his case was before the trial Court for declaration of right, title and interest over the suit land. In a case of suit for declaration of title u/s 34 of the Specific Relief Act, the burden of proof is always with the plaintiff as the said Section provides that the Court has a discretion as to declaration of status or right and a court should not make any such declaration or status or right whether the plaintiff being able to seek further relief within the meaning of declaration of title and omits to do so.

In

Ram Saran & Anr. Vs. Smt. Ganga Devi, : AIR 1972 SC 2685 (1973) 2 SCC 60

, the Apex Court had categorically held that the suit seeks for declaration of title of ownership, but when possession is not sought is hit by the proviso of Section 42 of the Specific Relief Act, 1877 and thus not maintainable. Section 42 of the Specific Relief Act, 1877 is corresponding to Section 34 of the Specific Relief Act of 1963. Thus, the principle laid down by the Apex Court as stated supra is even applicable in the instant case. Not only that in

Vinoy Krishna Vs. Keshav Chandra & Anr., : AIR 1993 SC 957 : 1993 Supp. (3) SCC 129

, the Apex Court also dealt with a similar issue where the plaintiff filed a suit seeking declaration of title of ownership. In view of the above, there is no doubt in the mind of this court that it is not permissible to claim the relief for declaration of title without seeking consequential relief relating to confirmation of possession.

Admittedly in the instant case, the plaintiff did not produce any document to show that exchange deed, Ext. 4 was executed by him on his own behalf on the basis of a power of attorney where his own land is available and shown in the schedule of the said power of attorney. It is the party who is claiming some relief is to lead the best evidence in his favour to prove his possession, but here in this case admittedly no documentary evidence has been placed by the plaintiff except oral evidence. Oral evidence cannot supersede the documentary evidence regarding the record of right in favour of the defendants issued by the revenue authority as some presumptive value in view of the statutory provision u/s 43 of the Tripura Land Revenue and Land Reforms Act, 1960 and the same is also supported by the decision of the Gauhati High Court in

Uttam Kumar Sen & Ors. Vs. Gita Das Choudhury & Ors., : 1998 (3) GLT 299, (1998) 1 GLR 145

. The para. 9 and 10 of the said Report are quoted herein below:

Keeping the above legal position in view, the finally published khatian marked as Ext. 1 must be construed to have authenticity as to the possession of the plaintiff in the suit premises.

The plaintiff''s case was that he reclaimed the suit property and after reclamation he constructed huts thereon for residential purpose. But during survey settlement operation the original owner, namely, Smti. Debalaxmi Devi came when he purchased the land by dint of an unregistered kabala which could not be registered as at that time the executant Debalaxmi was suffering from leprosy. But he remained in possession and on the basis of the unregistered deed of sale and his possession he paid the land revenue. The trial court as well as the first appellate court discussed about this point and held that the plaintiff''s documents clearly indicate that he had better title than the defendants namely, the present appellants who could not even show a piece of paper in support of their claim that they purchased the suit land from one Indu Bhusan Dewanji. The trial court also discussed the evidence in details and made the finding that the plea of adverse possession was not proved by the defendants, i.e., the present appellants.

In

Suraj Lamp and Industries Private Limited (2) through Director Vs. State of Haryana & Anr., (2012) 1 SCC 656

, the scope of power of attorney has been explained which is as under:

A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

In the aforesaid case of Suraj Lamp & Industries (P) Ltd. (supra), the Apex Court also took note of its earlier decision in

State of Rajasthan Vs. Basant Nahata, (2005) 12 SCC 77

, wherein the Apex Court held that:

A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

In para-52 of Basant Nahata (supra), the Apex Court also noted that:

execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is Revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.

In the instant case, admittedly the donee grantee plaintiff used the power of attorney for his own benefit and exchange deed was executed in his own behalf depriving the persons in favour of whom the exchange deed has to be executed in terms of the power of attorney. Thus, the learned trial Court and the Appellate court have rightly interpreted the deed of power of attorney Ext. A.

The aforesaid decision of the Apex Court in Suraj Lamp & Industries(P) Ltd. (supra) and Basant Nahata (supra) were subsequently considered and followed by the Apex Court in

Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, (2012) 8 SCC 706

.

The general power of attorney Ext. A which was executed in favour of the plaintiff neither conveyed/created any title nor created any interest on the immovable property like the suit land, rather by that document, plaintiff as an Agent was authorized to execute exchange deed in favour of those persons whose properties were shown in Schedule-A which the plaintiff has not done admittedly.

In view of Section 91 of the Evidence Act, a document speaks the last word on the subject. Thus, when a Court on the basis of documentary evidence satisfies itself, then discussion or assertion on oral evidence is not necessary at all.

In the instant case, admittedly the plaintiff him self produced the Ext. 1 series and those documents shows that the suit plot C.S. 1631 and 1634 are recorded in the name of predecessor in interest of the defendant Subhashini Ghosh.

Admittedly, the instant second appeal preferred against the concurrent findings of both the Courts below. In

Vishwanath Sitaram Agrawal Vs. San. Sarla Vishwanath Agrawal, : AIR 2012 SC 2586

, the Apex Court while considering the Section 100 C.P.C. taking note of

Vidhyadhar Vs. Manikrao & Anr., : AIR 1999 SC 1441

wherein noted inter alia that ''it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion.''

In a suit relating to declaration of right, title and interest and also for perpetual injunction, possession of the suit land is essentially one of the fact and such fact when decided by the trial court upon appreciation of the oral and documentary evidence on record and declined to accept the case of the plaintiff regarding his title as well as possession and the said order affirmed by the first appellate Court, it would not be proper for a court to sit in a second appeal to disturb such concurrent finding of fact. In

Mohan Lal Vs. Nihal Singh, : AIR 2001 SC 2942

, the Apex Court also held that question of possession is essentially one of the fact and observed thus:

The question of possession of the suit land is essentially one of fact. As noted earlier, the trial Court on appreciation of the oral and documentary evidence on record declined to accept the case of the defendant that the lease deed executed by him in favour of the plaintiff was a mere paper transaction and that he (defendant) had remained in possession of the property all along. The trial Court recorded a positive finding based on the revenue records and the oral evidence led by the plaintiff that he had come into possession of the land under the lease deed and continued to possess the same all along. The lower appellate Court, which is the final Court of fact, confirmed the finding of the trial Court regarding plaintiff''s possession over the suit land and upheld the judgment of the trial Court decreeing the suit. Before the High Court the contention that was raised related to the question of possession. There was hardly any scope for the High Court to interfere with the finding of possession concurrently recorded by the Courts below within the limited parameters of Section 100 of the Civil Procedure Code. As the second appeal did not involve any substantial question of law the High Court rightly dismissed the same.

In the case of Vidhyadhar (supra), it has also been noted that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction u/s 100 of the Code of Civil Procedure. This view of the Apex Court has been fortified by the decision of the Apex Court in

Abdul Raheem Vs. Karnataka Electricity Board & Ors., : AIR 2008 SC 956

.

In

Chunilal V. Mehta & Sons Ltd. Vs. Century Spg. and Mfg. Co. Ltd., : AIR 1962 SC 1314

, the Apex Court held that:

6... 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....

In

Vijay Kumar Talwar vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673

, the Apex Court also held that:

21.....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.... It will, therefore, depend on the facts and circumstances 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.

In view of the above, it appears that after thoroughly examining the evidence on record, both the courts below did not rely on the exchange deed, Ext. 4 for want of requisite consideration to entitle the plaintiff to acquire right, title and interest and also found that the plaintiff was not in a possession of the suit land since 1963. Rather they have found the defendants in possession and enjoyment of the plaint scheduled property. The findings of both the courts below as to the possession of the defendants in respect of the plaint schedule property are based on documentary evidence and reasoning and they cannot be said to be perverse. Therefore, this court while dealing with the Second Appeal u/s 100 C.P.C. will not interfere with the findings of fact recorded by the courts below. Such being the finding of facts, there is no foundation for raising any question of law to be decided in this case. For the foregoing reasons and discussion, the judgment and decree dated 30.11.2002 and 4.12.2002 respectively passed by the learned Additional District Judge, South Tripura, Udaipur in T.A. No. 8 of 2002 confirming the judgment and decree dated 31.1.2002 passed by the learned Civil Judge, Junior Division in Title Suit No. 5 of 2000 is affirmed. Accordingly, the second appeal is dismissed being devoid of merit.

Send down the L.C. records.