Samarendra Nath Bhattacharjee, J.@mdashNo substantial question of law was formulated by the Division Bench while admitting the appeal. The learned Counsel for the respondent has submitted that no substantial question of law is involved in this case. However, the appeal has been admitted by the Division Bench holding that there are substantial questions of law involved. From the memo of appeal, the following questions are formulated at the time of hearing of this appeal:
(1) Whether the Court below was justified in holding that the defendant was a licensee on the basis of the evidences of the P.Ws.?
(2) Whether for the purpose of holding that the construction on the suit property was raised by Shubhankari, the Court acted illegally in looking into the evidence of P.Ws. in the absence of any pleadings to this effect in the plaint?
(3) Whether the learned Courts below committed error of law in disbelieving the Amalnama as a piece of evidence in support of settlement granted in favour of the appellant?
The suit property admittedly belonged to Anadinath Mukhopadhyay who sold it to Shubhankari Dassi by virtue of registered deed of sale. Shakti Pada Dutta (since deceased) purchased the said property from Shubhankari Dassi by registered sale deed dated 26.11.64. The defendant No. 1 was inducted by Shakti Pada in the suit property as a caretaker as Shakti Pada could not reside there and the defendant No. 1 was in permissive possession of the suit property. Shakti Pada came back to reside in the suit property. He requested the defendant to vacate the suit premises but the defendant declined to do so. The defendant No. 1 illegally let out a room to defendant No. 2. The defendant Nos. 3 and 4 are the sons of defendant No. 1. Shakti Pada died during the pendency of the suit and the present plaintiffs were substituted as assignee by gift of Shakti Pada. The defence was that Anadinath Mukhopadhyay orally settled the suit property in favour of Suryakant Paul who constructed the house on the suit land and started residing there. Subsequently. Anadinath Mukhopadhyay executed an Amalnama on 30th Bhadra. 1357 B.S. in favour of Suryakanta confirming the oral settlement and Suryakanta Paul began to reside therein on payment of the rent to the landlord. After the death of Suryakanta Paul, the present defendant No. 1. 3 and 4 became the owner of the suit property. Shubhankari Dassi never possessed the suit land nor constructed the house standing on the suit land. Shubhankari Dassi let out a room to defendant No. 2 who subsequently vacated the same. The defendants are in possession by virtie of title and not by permission.
2. The learned trial Judge decreed the suit on the findings that Shubhankari Dassi constructed the suit house after her purchase and thereafter Shakti Pada Dutta by purchase acquired title in the suit property, that the Amalnama did not confer any title upon Suryakanta, the predecessor of the defendants, that the rent receipts are prepared subsequently and that the defendants were in permissive possession.
3. In appeal the learned 1st appellate Court affirmed the decree passed by the learned trial Judge on a concurrent finding about the plaintiffs title and defendants permissive possession. The learned Court below thus dismissed the appeal without costs. Against the judgment of confirmation passed by learned appellate Court, the defendants have preferred the Second Appeal. The question whether the suit property was settled in favour of appellant No. 1, Suryakanta by executing an Amalnama dated 30th Bhadra, 1357 B.S. is a question of fact. Both the Courts below have disbelieved the story of settlement by Amalnama on the basis of the evidence on record. The learned trial Judge has also found that the alternative case of the appellant that the suit property has vested in the State and they are direct tenants under the State of West Bengal by applying for patta has not been substantiated as the order of vesting in a big raiyat case has been set aside by the Civil Court. The learned trial Judge has also found that the possession of Suryakanta has not been recorded in the R.S. Record of Right and that the evidences of the P.Ws. are on hearsay evidence and unworthy of credence. That Exhibit B to B(2) are three rent receipts produced by the appellants and those rent receipts were granted on 28th Chaitra 1363 B.S. after date of vesting. The learned 1st Appellate Court also upheld the finding of the learned trial Judge and further found that the defence case in respect of vesting of the suit land has no leg to stand upon and the Amalnama did not bear any seal and stamp of the zamindari seresta and the same is an antedated document. So both the Courts below came to the concurrent finding of facts regarding the alleged settlement in favour of Suryakanta by virtue of Amalnama. The learned 1st Appellate Court also believed the evidence of P.Ws. regarding the construction of the suit building and also on the point of permissive possession by the appellants.
4. As to the point No. 3 it has been argued by the learned Counsel for the appellant that both the Courts below have believed the evidence that Shubhankari Dassi constructed the houses on the suit property although there is no such averment in the plaint. Thus, the Courts below acted illegally in relying upon the evidence of P.W. in the absence of any pleadings to the effect that Shubhankari Dassi constructed the suit property. It would appear from the plaint that the plaintiffs having purchased the land from Shubhankari Dassi had to reside at Katwa in the interest of education of his children and it was not possible for him to repair the house on the suit property and he found it necessary to appoint somebody who can remain in the suit property and look after the same. From this it is clear that Shubhankari Dassi purchased the land with structures thereon. The appellant case in the written statement was that the landlord, Anadinath Mukhopadhyay at the time of alleged settlement in favour of the husband of the defendant No. 1 did not raise any construction in the suit land and it was a fallow land. Therefore, the question for raising construction was limited between Shubhankari Dassi and the appellant and the learned Court below believed the evidence of P.Ws. to the effect that Subhankari Dassi raised the construction. So, all the three points involved questions of facts and no question of law, let alone substantial question of law, is involved. Both the Courts below have come to a concurrent finding on the facts involved in the case and the 1st Appellate Court being the final Court of finding of fact it is impermissible to reappreciate the evidence and upset the decision of the 1st Appellate Court on question of facts. It is a well-settled principle of law that the jurisdiction of the High Court u/s 100 CPC is limited only to the point of substantial question of law.
5. In
After the amendment a Second Appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated.
In exercise of the powers under this section the findings of fact of the 1st Appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a Second Appeal can be maintained and no Court has the power to add or enlarge those grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of powers under this section.
6. The Apex Court has further held:
In a case wherefrom a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the 1st Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
7. In
In our opinion, the judgment of the High Court suffers from serious infirmities. It also suffers from the vice of exercise of such jurisdiction which did not vest in the High Court under the law. u/s 100 CPC (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involved re-appreciation of evidence.
8. In
The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.
Therefore, the appeal is devoid of any merit and the same is dismissed without any order as to costs.
