1. Heard Mr. A. Mobaraque, the learned counsel appearing on behalf of the appellants.
2. The instant appeal arises out of the judgment and decree dated 4. 05.2019 passed by the Court of the Civil Judge, Barpeta, Assam in Title Appeal
No.58/2017 whereby the said appeal was dismissed thereby affirming the judgment and decree dated 26.09.2017 passed by the Court of the Munsiff
No.2, Barpeta, Assam, in Title Suit No.74/2015.
3. The instant appeal has been taken up for consideration at the stage of Order XLI Rule 11 to ascertain as to whether there arises any substantial
question of law that can be formulated in terms with Section 100(4) of the Code of Civil Procedure, 1908 (for short the “Codeâ€).
4. For ascertaining as to whether any substantial question of law is involved in the instant appeal that can be formulated, this Court would like to take
note of brief facts of the instant case which led to the filing of the instant appeal. For the sake of convenience, the parties herein are referred to in the
same status as they stood before the Trial Court.
5. The respondent No.1 herein as plaintiff had instituted a suit which was registered and numbered as Title Suit No.74/2015 before the Court of the
Munsiff No.2, Barpeta. From a perusal of the plaint, it transpires that a plot of land measuring 1 Bigha most specifically described in Schedule-A to
the plaint was settled by the Government in favour of one Late Rajendra Nath Choudhury and Sabed Ali who went on possessing the said land
without partitioning the land in any manner. Pursuant to the death of Mr. Rajendra Nath Choudhury, his sons have obtained mutation of the land along
with Sabed Ali on the basis of an order dated 20.05.1970 of the SDC. The plaintiff along with his brothers i.e. Tayeb Ali (defendant No.1), Noor
Mohammad (proforma defendant No.2) and Intaz Ali (proforma defendant No.1) jointly purchased the western half of the land in Schedule-A from
one Mazibar Rahman who was the son of Sabed Ali vide a registered Sale Deed bearing Deed No.5699/70 dated 28.10.1970 followed by a registered
rectification deed bearing No.5742/70 dated 30.10.1970. Thereupon, the plaintiff, the defendant No.1 as well as the proforma defendant Nos. 1 and 2
obtained mutation over the said plot of land. The said plot of land measuring 2 Kathas 10 Lechas had been specifically described in Schedule-B to the
plaint.
6. From the plaint, it further transpires that the plaintiff, defendant No.1 and the proforma defendant Nos. 1 and 2 have been possessing the Schedule-
B land jointly by holding the land by plot as per their comfort and convenience more or less to the extent of the legitimate shares but without
partitioning the land in any manner. The plaintiff had specifically mentioned that the land described in Schedule-B1 is the land which the plaintiff was
enjoying possession and measured 12½ Lechas with specific boundaries. The proforma defendant No.1, Intaz Ali had rights over the land described
in Schedule-B2 which was also 12½ Lechas in size with specific boundaries. It has been also alleged in the plaint that taking into consideration that
the plaintiff, the defendant No.1 and the proforma defendant Nos. 1 and 2 were all brothers from the common parents, all of them were holding the
land in Schedule-B jointly without formally partitioning the land in any manner. Accordingly, some parts of the land in Schedule-B2 remained under the
occupation of the defendant No.1. Subsequent thereto, the proforma defendant No.1 had offered to sell the land described in Schedule-B2 to the
plaintiff for valuable consideration. The plaintiff having agreed, vide a registered deed bearing Deed No.3348/2014, the proforma defendant No.1
transferred the Schedule-B2 land to the plaintiff. Upon purchase of the said Schedule-B2 land, the plaintiff asked the defendant No.1 to vacate the
partial occupation in the land described in Schedule-B2 however, the defendant No.1 did not do so.
7. Subsequent thereto, the plaintiff also came to learn that on 03.11.2014, the defendant No.1 sold a part of the suit land measuring 12½ Lechas
having the similar boundaries to Schedule-B2 in favour of the defendant No.2 who is his son. Under such circumstances the plaintiff instituted the suit
seeking a declaration that the plaintiff had right, title and interest in the suit land (Schedule-B land) to the extent of 2 Bighas 10 Lechas i.e. the
Schedule-B1 and Schedule-B2 land and the defendant No.1 did not have title in the suit land (Schedule-B land) exceeding 12½ Lechas; for
declaration that the registered deed No.935/14 is fraudulent and Sham deed and inoperative in the eyes of law as well as for recovery of possession
by evicting the principal defendants. Further to that, the plaintiff also prayed for partition of the suit land.
8. The defendant Nos. 1 and 2 jointly filed a written statement where various preliminary objections were taken as regards the maintainability of the
suit. The case of the plaintiff was denied and in paragraph No.16 of the written statement, the contesting defendants though admitted that the
purchase of the suit land jointly done by all the four brothers i.e. by the plaintiff, defendant No1., proforma defendant Nos. 1 and 2 and the four
brothers were entitled to 12½ Lechas of land but it was the specific case of the defendants that the defendant No.1 and the proforma defendant
No.1 used to live together in their original house at their native village Jaypur. It was mentioned that the defendant No.1 came to the suit land about 15
years ago and the defendant No.1 has been peacefully enjoying his share of land along with the share of the proforma defendant No.1 together
measuring 1 Katha 5 Lechas of land with specific boundaries. The defendants further stated that around 15 years ago, the proforma defendant No.1
orally donated his share of land measuring 12½ Lechas of land in favour of the defendant No.1 and as such the defendant No.1 has been peacefully
enjoying and possessing a total land of 1 Katha 5 Lechas of land with specific boundaries. Further to that, it was mentioned that the defendant No.1
vide a registered Sale Deed bearing Deed No.935/2014 dated 03.11.2014 transferred 12½ Lechas of his land to his son i.e. the defendant No.2 and
delivered the possession of the said 12½ of land with specific boundaries such as North - PWD Road, South - the remaining part of the land of
defendant No.1 measuring 12½ Lechas of land, East - the plaintiff Kazimuddin, West - Altaf Master. It was denied that the proforma defendant
No.1 ever sold the land to the plaintiff through the registered Sale Deed bearing No.3348/2014. Under such circumstances the contesting defendants
submitted that the suit be dismissed with exemplary cost.
9. On the basis of the pleadings as many as 6 issues were framed which were as under:
(a) Whether there is cause of action for filing the suit?
(b) Whether the suit is barred by limitation?
(c) Whether the suit is not properly valued?
(d) Whether the plaintiff has right, title and interest over the Schedule B1 and B2 lands?
(e) Whether the Registered Sale Deed No.935/14 is illegal?
(f) Whether the parties are entitled to any other reliefs claimed?
10. On behalf of the plaintiff, 5 plaintiff witnesses were adduced and similarly the contesting defendants adduced the evidence of 5 defendant
witnesses. The plaintiffs exhibited the certified copy of the Jamabandi under Periodic Patta No.640 (Exhibit-1), attested copy of the registered Sale
Deed No.5742/70 (Exhibit-2), registered Sale Deed No.5699/70 (Exhibit-3), Registered Sale Deed No.3348/14 (Exhibit-4) and the certified copy of the
Registered Sale Deed No.935/14 (Exhibit-5). The defendants exhibited the certified copy of the Jamabandi under Periodic Patta No.640 (Exhibit-Ka),
Registered Sale Deed No.935/14 (Exhibit-Kha), No Objection Certificate (Exhibit-Ga), House Tax (Exhibit-Gha), Permission for Construction
(Exhibit-Unga).
11. The Trial Court i.e. the Court of the Munsiff No.2, Barpeta vide a judgment and decree dated 26.09.2017 decreed the suit in favour of the
plaintiffs. In doing so, the Trial Court while deciding the Issue No.(d) came to a finding on the basis of the evidence on record that there was no gift
by the proforma defendant No.1 in favour of the defendant No.1 of his share of the Schedule-B2 land. It was also observed that the proforma
defendant No.1 only permitted the defendant No.1 to reside in his land as a permissive occupier and upon the sale made by proforma defendant No.1
in favour of the plaintiff, the defendant became a permissive occupier under the plaintiff. The plea of the adverse possession which was also taken as
an alternative defence was held to be not tenable taking into account that the defendant No.1 in his evidence have duly admitted that the proforma
defendant No.1 did not sell or gift the land but only allowed him to live in the land. On the basis of the decision in Issue No.(d), the Issue No.(e) was
decided holding inter alia that as the defendant No.1 did not have title over the Schedule-B2 land, he could not have transferred by way of sale in
favour of the defendant No.2 vide the registered Sale Deed No.935/14 and accordingly held that the same was illegal and liable to be cancelled.
12. On the basis of the above, the Trial Court decreed the suit thereby giving a declaration that the plaintiff has right, title and interest over the
Schedule B1 and B2 lands; the principal defendants did not have right, title and interest over the Schedule-B2 land; a precept was issued to the
concerned Revenue Authority to make partition over the Schedule B1 and B2 land out of the Schedule-B land by creating a new Dag and Patta in
favour of the plaintiff; a precept was issued to the concerned Revenue Authority to cancel the registered Sale Deed No.935/14; a decree for recovery
of khas possession by evicting the defendants, their men and agents or any person claiming through the defendants and by removing the structures
standing over the Schedule-B2 land. The Court further directed that a preliminary decree be drawn up accordingly and a final decree be prepared
after getting the report of partition from the Commissioner.
13. Feeling aggrieved and dissatisfied, the defendant Nos. 1 and 2 preferred an appeal against the judgment and decree dated 26.09.2017 passed by
the Trial Court. The said appeal was registered and numbered as Title Appeal No.58/2017. The First Appellate Court i.e. the Court of the Civil Judge,
Barpeta vide a judgment and decree dated 04.05.2019 on the basis of grounds of objection framed a point of determination which is as follows:
“Whether the judgment and decree passed by the learned Court below is required to be interfered with?â€
14. The First Appellate Court vide its judgment and decree dated 04.05.2019 interfered with the finding of the Trial Court on the Issue No. (c) as to
whether the suit has been properly valued and came to a finding that the plaintiff’s suit was covered under Article 17(vi) of Schedule II of the
Court Fees Act, 1870 and accordingly Court Fees is to be paid according to the valuation of the subject matter in dispute and the plaintiffs were liable
to pay Court Fees in both suit and appeal on the basis of the value of the Schedule-B2 land. However, while deciding the Issue Nos. (d) and (e), the
First Appellate Court after taking into account the evidence on record came to a finding that the defendant No.1 did not have any right over the land
of the proforma defendant No.1 and as such he had no authority to sell the land of the proforma defendant No.1. After taking into consideration the
boundaries of the lands in question, the First Appellate Court came to a finding that the land sold vide Deed No.935/14 was the same land which has
been described in Schedule B2 land. Under such circumstances, the First Appellate Court came to a finding that the defendant No.1 had no title over
the land of Intaz Ali and therefore could not have sold vide registered Sale Deed No.935/14 to the defendant No.2. It is under such circumstances, the
said appeal was dismissed thereby confirming the judgment and decree passed by the Trial Court.
15. Before examining as to whether a substantial question of law is involved in the case and can be formulated, this Court deems it proper to briefly
refer to the scope of the Second Appeal as also the procedure for entertaining them as laid down under Section 100 of the Code. It is clear from Sub-
Section (5) of Section 100 that an appeal shall be heard only on questions formulated by the High Court under Sub-Section (4) thereof. The expression
“appeal†has not been defined in the Code. Black’s Law Dictionary (7th Edition) defines an appeal as “a proceeding undertaken to have a
decision reconsidered by bringing it to a higher authorityâ€. An appeal is thus, a judicial examination by a Higher Court of a decision of a Sub-Ordinate
Court to rectify any possible error(s) in the order under appeal. The law provides the remedy of appeal because of the recognition that those manning
the judicial Tiers commit error(s).
16. Order XLII of the Code provides for the procedure to be followed while deciding appeals from the Appellate decrees. It states that the Rules of
Order XLI shall apply, so far as may be, to appeals from Appellate decrees. The words such as “so far as may be†or “in so far as†mean
“as such†or “to the extent†or “to such extentâ€. By virtue of Order XLII Rule 1, the provisions of Order XLI are applicable to Second
Appeal as well, though not in their entirety, but to certain extent, having regard to the mandate contained in Order XLII, this Court while hearing a
Second Appeal, has to follow the procedure contained in Order XLI to the extent possible.
17. Section 100 of the Code provides for a right of Second Appeal by approaching a High Court and invoking its aid and interposition to redress
error(s) of the Sub-Ordinate Court, subject to the limitations provided therein. An appeal under Section 100 of the Code could be filed both against
“concurrent findings†or “divergent findings†of the Courts below. Sub-Section (1) of Section 100 of the CPC states that a Second Appeal
would be entertained by the High Court only when the High Court is satisfied that the case “involves a substantial question of lawâ€. Therefore for
entertaining an Appeal under Section 100 of the CPC, it is immaterial as to whether it is against “concurrent findings†or “divergent findingsâ€
of the Courts below. It is needless to state that when any concurrent finding of fact is appealed, the appellant is entitled to point out that it is bad in law
because it was recorded dehors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it
was recorded against the provisions of law or the decision is one which no Judge acting judicially can reasonably have reached. Once this Court is
satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice
to the Respondent.
18. In case the appeal does not involve any substantial question of law, the High Court has no option but to dismiss the appeal in limine. It is well
settled that even when a Second Appeal is dismissed in limine, reasons are to be recorded. This Court is presently at that stage to find out as to
whether a substantial question of law involved in the case that can be formulated in terms with Section 100(4) of the CPC.
19. As to what is a substantial question of law came up for consideration before the Supreme Court in the case of Santosh Hazari Vs. Purushottam
Tiwari reported in (2001) 3 SCC 179. The Supreme Court in Paragraph Nos. 12, 13 and 14 dealt with the aspect as to what is a substantial question of
law and when a substantial question of law can be said to have arisen in the appeal. Paragraph Nos.12, 13, 14 are quoted hereinbelow.
“12. The phrase “substantial question of lawâ€, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as
qualifying “question of lawâ€, means â€" of having substance, essential, real, of sound worth, important or considerable. It is to be understood as
something in contradistinction with â€" technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has
chosen not to qualify the scope of “substantial question of law†by suffixing the words “of general importance†as has been done in many
other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal
shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta4, the phrase “substantial
question of law†as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up
for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was
involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. the Constitution Bench
expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju:
“[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal
with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the
question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well
settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.â€
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
“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.â€
13. In Dy. Commr., Hardoi v. Rama Krishna Narain also it was held that a question of law of importance to the parties was a substantial question of
law entitling the appellant to a certificate under (the then) Section 110 of the Code.
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. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of
each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for
striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of
any lis.â€
20. From the above quoted paragraphs of the judgment of the Supreme Court, it would be seen that to be a substantial question of law “involved in
any caseâ€, there must be first a foundation for it laid in the pleadings and the questions should emerge from the substantial 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 of the case. An entirely new point raised
for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It is in these circumstances that
the Supreme Court had further observed that as to whether a substantial question of law is involved in the case or not would depend upon the facts
and circumstances of each case; the paramount overall consideration being the need for striking a judicious balance between the indispensible
obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. In the backdrop of the above, this Court
therefore, would take into consideration the contentions raised by the learned counsel appearing on behalf of the appellants.
21. Mr. A. Mobaraque, the learned counsel for the appellants submitted that both the Courts below were not justified in holding that there was no gift
in favour of the defendant No.1 by the proforma defendant No.1 taking into consideration that the proforma defendant No.1 allowed the defendant
No.1 to live and reside in the land which fell in the share of the proforma defendant No.1. He further submitted that as the defendant No.1 was in
continuous and peaceful possession over the land belonging to the proforma defendant No.1 by virtue of Article 65 of the Limitation Act, 1963 the
defendant No.1’s right over the share of the proforma defendant No.1’s land have matured into title by dint of adverse possession. He also
submitted that both the Courts below ought not to have decreed the suit without considering the proper valuations of the suit and on the ground that it
was insufficiently stamped.
22. Further to that the learned counsel for the appellants has also submitted that it is being an admitted fact that the defendant No.1 had right over the
12½ Lechas of land, both the Courts below were not justified in cancelling the registered Sale Deed No.935/2014 by virtue of which there was a
sale made to the extent of only 12½ Lechas of land. On the basis of the above submissions, the learned counsel for the appellants proposed the
following questions of law to be substantial questions of law that can be formulated in terms with Section 100(4) of the Code.
(I) Whether the learned Court of Appeal below is justified in upholding the Judgment and Decree dated 26.09.2017 passed by the learned Munsiff
No.2, Barpeta, Assam in TS No.74/2015 without considering the applicability of gift since the Schedule B(2) land was gifted voluntarily in favour of
the appellant No.1 by the Proforma Respondent No.2/Proforma Defendant No.1 and accordingly delivered possession of the B(2) Schedule land in
favour of the appellant No.1 and the Respondent/plaintiff and Proforma Respondent No.2/Proforma Defendant No.1 have confirmed the possession
over the suit land {Schedule B(2)} of the appellant No.1 for last
15 years which is a substantial question of law under Section 100 of the Code of Civil Procedure.
(II) Whether the learned Court of Appeal below is justified in upholding the Judgment and Decree dated 26.09.2017 passed by the learned Munsiff
No.2, Barpeta, Assam in TS No.74/2015 without considering proper valuation of the suit and insufficient stamped.
(III) Whether the learned Court of Appeal below is justified in upholding the Judgment and Decree dated 26.09.2017 passed by the learned Munsiff
No.2, Barpeta, Assam in TS No.74/2015 without considering the facts of peaceful and continuous possession of the appellants over the suit land for
more than the statutory period of 12 years.
(IV) Whether the learned Courts below are justified in dismissing the appeal in affirming the judgment and decree of the learned Trial Court wherein
the pleadings of the Plaintiff/Respondent No.1, it is established that the Appellant No.1 has right, title and interest to the extent of 12½ Lechas of
land within the “B†Schedule land and he sold his said land in favour of the Appellant No.2 through the registered Sale Deed No.935/14, hence
the learned Courts below have no jurisdiction to cancel said registered Sale Deed but the learned Trial Court below declared the said registered Sale
Deed No.935/14 as an illegal deed which was affirmed by the learned Appellate Court below and as such the finding arrived at by both the Courts
below are perverse require interference under Section 100 of the Code of Civil Procedure.
23. In the backdrop of the above contentions so submitted by the learned counsel for the appellants, let this Court take into consideration as to whether
the above questions of law as proposed can be formulated as substantial questions of law involved in the instant appeal.
24. From a perusal of both the judgments of the Trial Court as well as the First Appellate Court and the observations made in respect to the evidence
on record to the effect that the defendant No.1 during his evidence duly admitted that the proforma defendant No.1 had neither sold nor gifted the land
but had only allowed him to reside therein and this aspect of the matter and the findings of both the Courts below conclusively to the effect that there
was no oral gift in favour of the defendant No.1 by the proforma defendant No.1 on the basis of the evidence, this Court is of the opinion that the first
question of law as framed cannot be a substantial question of law involved in the instant appeal. It would also be relevant to take note of that a clear
admission of the defendant No.1 during his cross-examination that he resided in the share of the proforma defendant No.1 on being allowed to reside
therein by the proforma defendant No.1 renders the status of the defendant No.1 as a permissive occupier of proforma defendant No.1. This aspect
of the matter has also been conclusively held by both the Courts below on the basis of the evidence on record. Accordingly, the question of the
defendant No.1 residing in the share of the land of the proforma defendant No.1 for 15 years does not give him any right to claim title over the said
land. Under such circumstances, the first question of law so proposed, in the opinion of this Court is not a substantial question of law involved in the
instant appeal.
25. As regards the second question of law so proposed which pertains to as to whether the Courts below were justified in decreeing the suit in favour
of the plaintiffs without considering the proper valuation of the suit and insufficiently stamped, it would be seen that the First Appellate Court had
come to a finding that the suit of the plaintiff was covered under Article 17(vi) of Schedule II of the Court Fees Act, 1870 and accordingly the Court
Fees has to be paid on the basis of the valuation of the subject matter in dispute. The First Appellate Court therefore directed the plaintiff to pay Court
Fees both in suit and appeal on the basis of the value of Schedule-B2 land. It was also held that the suit/appeal necessarily do not fail because it can
be cured on payment of the Court Fees and accordingly directed the plaintiff to pay Court Fee both in suit and appeal on the basis of the value of the
Schedule-B2 land. The said findings as regards to Issue No. (c) in the opinion of this Court is in consonance with the provisions of law inasmuch as
whether proper Court Fee is paid on the plaint is primarily a question between the plaintiff and the State and it is difficult to appreciate as to how the
inadequacy of the Court Fees paid by the plaintiff, the defendant may feel aggrieved. In this regard, this Court would like to refer to the judgment of
the Supreme Court rendered in the case of J. Vasanthi and Others Vs. N. Ramani Kanthammal reported in (2017) 11 SCC 852 wherein the Supreme
Court after taking into consideration that the suit was not properly valued and the Court Fee was not paid, directed the Trial Court to grant 3 months
time to the plaintiff to pay the requisite Court Fee. Paragraph Nos. 26 to 28 of the judgment being relevant are quoted hereinbelow:
“26. In this context, we have been commended to the decision in A. Nawab John v. V.N. Subramaniyam. On a careful perusal of the said
decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject-
matter or undervaluation is an aspect which can be contested by the defendant, but the said contest is limited. In this regard, the two-Judge
Bench has reproduced two passages from Rathnavarmaraja v. Vimla12 which we think seemly to reproduce: (AIR pp. 1300-01, paras 2-3)
“2. *The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of
defence to obstruct the trial of an action*. By recognising that the defendant was entitled to contest the valuation of the properties in
dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High
Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the
trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant
can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court
fee on his plaint. *Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State*. How by an order
relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the
jurisdiction13 in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by clauses
(a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate court or assumption of
jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise
of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no
right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. But
counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the
defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the
plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court. Reliance in support of
that contention is placed upon sub-section (2) of Section 12. That sub-section, insofar as it is material, provides:
* * *
3. But *this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in
arriving at a just decision on that question*. Our attention has not been invited to any provision of the Madras Court Fees Act or any other
statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of
court fee payable in a plaint. The Act, it is true, by Section 19 provides that for the purpose of deciding whether the subject-matter of the
suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers
proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report
thereon. The anxiety of the legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III
of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching
the High Court in revision against an order determining the court fee payable.â€
27. On a perusal of the decision in Rathnavarmaraja, we find that the controversy had arisen with regard to proper valuation and the stand
of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced
hereinabove. The issue being different, the said decision is distinguishable. We may reiterate that proper valuation of the suit property
stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation,
it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the Revenue and the State and
not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to
raise the plea of jurisdiction on a different yardstick.
28. In the ultimate analysis, we arrive at the conclusion that the appeal is to be allowed, the impugned orders passed by the trial court and
the High Court, being unsustainable are to be set aside and we so direct. The trial court is directed to grant three months’ time to the
plaintiff to pay the requisite court fee. There shall be no order as to costs.â€
26. This Court however would like to observe that taking into consideration that the appeal was preferred by the defendants against the judgment and
decree dated 26.09.2017, the saddling of liability of paying Court Fee in the appeal upon the plaintiff was not justified inasmuch as the plaintiff would
only be liable to pay the Court Fee before the Trial Court only on the basis of the valuation of the Schedule-B2 land and not before the First Appellate
Court.
27. The third question of law so proposed was as to whether both the Courts were justified in passing the decree in favour of the plaintiff without
considering the facts of peaceful and continuous possession of the appellants/the defendant Nos. 1 and 2 for more than the statutory period of 12
years. The law as regards adverse possession is clear which stipulates that the possession has to be continuous, hostile and adverse to the interest of
the true owner. The findings of the fact of both the Courts below clearly demonstrate that the defendant No.1 was only a permissive occupier under
the proforma defendant No.1 and thereupon after the Deed of Sale bearing No.3348/2014 being executed, the defendant No.1 became a permissive
occupier under the plaintiff. Under such circumstances, mere remaining in peaceful and continuous possession does not ripe into adverse possession
and as such this Court is of the opinion that both the Courts below were justified in decreeing the suit in favour of the plaintiff. In that view of the
matter, the third question of law so proposed cannot be a substantial question of law involved in the instant appeal.
28. The fourth question of law so proposed pertains to as to whether the Courts below were justified in decreeing the suit thereby cancelling the Deed
of Sale bearing Deed No.935/14 executed by defendant No.1 in favour of the defendant No.2 without taking into consideration that the defendant
No.1 has share of 12½ Lechas of land. The said question of law in the opinion of this Court cannot be a substantial question of law involved in the
instant appeal on two grounds. Firstly, the finding of facts arrived at by the First Appellate Court categorically demonstrates that the land which was
transferred by way of the registered Deed of Sale bearing No.935/14 was the Schedule-B2 land. No perversity could be shown to the said finding of
facts by the learned counsel for the appellants. Secondly, it is being a trite principle of law that to be a substantial question of law, the same has to
have roots in the pleadings. However in the instant case and more particularly upon a perusal of the written statement, it was never the case of the
defendants that the share of the land of the defendant No.1 of 12½ Lechas of land was transferred in favour of the defendant No.2. Moreover, the
boundaries mentioned in the Deed of Sale bearing Deed No.935/2014 dated 03.11.2014 had on the south of the land belonging to the Defendant No.1.
29. Taking into account the above, this Court is of the opinion that the questions of law so proposed by the learned counsel for the appellants are not
substantial questions of law involved in the appeal which can be formulated in terms with Section 100(4) of the Code.
30. Consequently, the instant appeal stands dismissed. However in the facts of the instant case, this Court is not inclined to impose any costs.
