NURAL AZAM SARKAR v. BHIKAM CHAND SETHIA & Ors

of brief fact of the case. For the purpose of convenience the parties before this Court are referred to in the same status as they were before the Trial Court.

4. The case of the plaintiff in brief is that the plaintiff had instituted the suit stating inter alia that one Dharendra Nath Brahma (since deceased), the father of the Defendant Nos.1 to 4 was the occupancy tenant under Jotedar, Jayashree Barua in respect to a plot of land measuring 10 Bighas 4 Kathas 2 Lechas covered by Dag No.238 of Khatian No.106 situated at Gauripur Town. Out of the aforesaid land, the said Dharendra Nath Brahma sold about 8 Bighas 3 Kathas 14¼ Lechas to different persons and delivered possession of the same to them. Thereafter, the said Dharendra Nath Brahma expired and his legal heirs sold the remaining 2 Bighas 0 Katha 7¾ Lechas of land to different persons. According to the Plaintiffs, the father of Plaintiff Nos.1 to 4 namely Tez Karan Sethia had purchased the land measuring 2 Kathas 10 Lechas and 1 Katha from Dharendra Nath Brahma out of the aforesaid referred tenanted land vide registered Deed of Sale bearing No.5717 dated 26.05.1972 and 7528 dated

15.09.1971 and started to possess the aforesaid total land measuring 3 Kathas 10 Lechas by constructing in a residential houses thereon. Page No.# 5/21

5. It was further pleaded that one Rup Chand Sethia thereafter purchased 1 Katha 6¼ Lechas (Schedule-A) of the land from Dharendra Nath Brahma vide the registered Sale Deed No.5716 dated 26.05.1972 and later on he again purchased another plot of land measuring 2 Kathas 10 Lechas from one Alakesh Chandra Barua bearing Sale Deed No. 3085 dated 26.02.1971 which land is contiguous to the aforesaid 1 Katha 6¼ Lechas and thus Rup Chand Sethia became the owner of the total land measuring 3 Katha 16¼ Lecha. After the death of Rup Chand Sethia, the father of the Plaintiff No.1 to 4 namely Tez Karan Sethia and Smt. Kalkati Devi (Plaintiff No.5) purchased the aforesaid total land measuring 3 Kathas 16¼ Lechas from the legal heirs of Rup Chand Sethia vide Sale Deed No. 922 & 923 both dated 30.01.1985. Thereafter, Tez Karan Sethia and Kalkati Devi mutually partitioned the above Schedule-A land whereby land measuring 13¼ Lechas fell in the share of Tez Karan Sethia and land measuring 13 Lechas fell in the share of Kalkati Devi and accordingly they started to possess their respective plots of land. Later on the land which fell in the share of Tez Karan Sethia and Kalkati Devi in the Schedule-A land was included in Patta No.150 of Dag No.1290 and Patta No.88 of Dag No.1294.

6. The Plaintiffs further averred in the plaint that the Defendant Nos.1 to 4 who were the legal heirs of Dharendra Nath Brahma colluded with the Defendant No.5 and tried to dispossess the Plaintiff from a portion of Schedule- A land on 12.03.2000 but could not succeed; and as such the Defendant Nos.1 to 4 executed the registered Sale Deed in favour of the Defendant No.5 in Page No.# 6/21 respect to the land measuring 1 Katha 5 Lechas (Schedule-B) which is part of the Schedule-A land by showing a wrong boundary and on the basis of the aforesaid Sale Deed No.575 dated 24.03.2000 and the amended Sale Deed No.871 tried to dispossess the plaintiff. It is for that reason that the plaintiffs filed the suit praying for declaration that the Defendant Nos.1 to 4 had no right, title and interest over 10 Bighas 4 Kathas 2 Lechas of land under Dag No.238 of Khatian No.106; for declaration that the Defendant Nos.1 to 4 had right, title or interest and possession over the Schedule-A land for cancellation of the Sale Deed No.575 and 871 and for permanent injunction restraining the defendants from entering the Schedule-A land.

7. The Defendant No.5 filed his written statement stating therein that the suit was not maintainable on the ground that the same was bad for non-joinder of necessary parties. It was admitted in the written statement that Dharendra Nath Brahma was originally the owner of the land measuring 10 Bighas 4 Kathas 2 Lechas. It was pleaded in the written statement that the suit land was never purchased by Tez Karan Sethia, the plaintiff never possessed the suit land and as such the plaintiff does not have any right, title and interest and possession over the suit land. The Defendant No.5 pleaded in his written statement that there was 1 Bigha 0 Katha 1¼ Lecha land and out of which the plaintiffs had purchased 3 Katha 16¼ Lecha and the remaining portion i.e. 1 Katha 5 Lecha was purchased by Defendant No.5. The Defendant No.5 further stated that the land measuring 2 Katha 11¼ Lecha is covered by Dag No.238 of Khatian No.106 even though the plaintiff had wrongly stated as 1 Katha 6¼ Lecha. The Defendant No.5 admitted that he had purchased the land measuring 1 Katha 5 Lechas from the Defendant Nos.1 to 4 vide registered Sale Deed Page No.# 7/21 No.575/2000 and rectification Deed No.871/2000 and after purchasing the same, he came in possession of the said land and was residing therein by constructing his house thereon. It was further specifically averred in the written statement that the land purchased by Defendant No.5 does not fall within the land purchased by the plaintiffs or their predecessors and they were never in possession of the same; hence prayed for dismissal of the suit.

8. Upon the pleadings as many as 9 issues were framed which are as hereinunder. (I) Is this suit maintainable in law? (ii) Is this suit bad for mis joinder and non joinder of parties? (iii) Is this suit under valued and this Court lacks jurisdiction to entertain this suit? (iv) Is this suit barred by limitation? (v) Whether the plaintiffs have got any right, title, interest and possession over the B schedule land? (vi) Whether the defendant No.1 to 4 had any right and title for executing the sale deed in respect of B schedule land? (vii) Whether the defendants collusively and fraudulently got the sale deed No.575 dated 24/3/2000 executed and correction deed No.871 executed? (viii) Whether the plaintiffs are entitled to the decree as prayed for? (ix) To what relief, if any, the plaintiffs may be entitled to? Page No.# 8/21

9. On behalf of the plaintiffs, 5 witnesses were examined and on behalf of the Defendant No.5, 9 witnesses were examined. The Trial Court after hearing the parties decreed the suit on contest with cost. It was decreed and declared that the Defendant Nos.1 to 4 had no right, title and interest and possession over the Schedule-A land. It was decreed and declared that the sale of 1 Katha 5 Lechas of land out of the Schedule-A land by the Defendant Nos.1 to 4 to the Defendant No.5 was void. The Defendant Nos.1 to 5 were restrained by way of permanent injunction from entering into the Schedule – A and B land.

10. Being aggrieved and dissatisfied, the Defendant No.5 preferred an appeal before the Court of the Civil Judge, Dhubri which was registered and numbered as Title Appeal No.22/2012. On the basis of the contentions so raised, the First Appellate Court framed two points of determination which are quoted hereinbelow. “ POINTS FOR DETERMINATION Point for determination No.1: Whether the learned Trial Court had rightly decided the Issue Nos.5, 6 and 7 wherein it held that plaintiffs have the right, title and interest over the schedule A land and that the defendant No.1 to 4 had no transferrable right over the schedule B land, which is a part of schedule A land and thus the Sale Deed No.575 and 871 are liable to be cancelled ? Point for determination No.2: Whether the learned Trial Court had rightly decided the Issue Nos.1, 2, 3 and 4 wherein it held that the suit is maintainable and that the same is not bad for non-joinder of any other persons and is not undervalued and is not barred by limitation ?”

11. The First Appellate Court while deciding the first point of determination Page No.# 9/21 which pertain as to whether the Court below has rightly decided the Issue Nos. 5, 6 and 7 wherein it was held that plaintiffs have the right, title and interest over the schedule A land and that the defendant Nos. 1 to 4 had no transferrable right over the Schedule-B land, which is a part of schedule A land and thus the Sale Deed Nos. 575/2000 and 871/2000 were liable to be cancelled, the First Appellate Court took into consideration that the submissions made by the learned counsel for the parties as well as the evidence on record. In doing so, the First Appellate Court took into consideration Exhibit-4(8) which was the registered Deed of sale bearing Deed No.5716 dated 26.05.1972. The First Appellate Court taking into consideration that the said document was a registered document in original which was 30 years old, drew the statutory presumption in terms with Section 90 of the Indian Evidence Act, 1872. The First Appellate Court further also took into consideration that Late Dharendra Nath Brahma never challenged the aforesaid Sale Deed during his life time nor his legal heirs ever challenged the same. The learned First Appellate Court also took into consideration that the name of Tez Karan Sethia was mutated in respect to the suit land way back in the year 1990 but neither Dharendra Nath Brahma nor the Defendant Nos.1 to 4 ever challenged the mutation before the authority. Further to that, the First Appellate Court below also took into consideration the certified copy of the petition filed by the Defendant No.5 before the Assistant Settlement Officer which was marked as Exhibit-5. In Exhibit-5, the Defendant No.5 had admitted about the execution of Exhibit-4(8) and had also admitted that Rup Chand Sethia had purchased the land measuring 1 Katha 6¼ Lecha by way of registered Sale Deed No.5716 dated

26.05.1972 from Dag No.238 and he had further purchased the land measuring 2 Kathas 10 Lechas from the adjoining Dag No.239 from Alakesh Chandra Page No.# 10/21 Baruah and thus Rup Chand Sethia had purchased total land measuring 3 Kathas 16¼ Lechas in two Dags, i.e. Dag No.238 and 239. The learned First Appellate Court further took into consideration while appreciating Exhibit-F that thereafter Tez Karan Sethia and Smt. Kalkati Devi purchased the above referred 3 Kathas 16¼ Lechas from the legal heirs of Rup Chand Sethia by way of Sale Deed No.923 dated 30.01.1985 and 922 dated 30.01.1985 which were exhibited by the plaintiffs as Exhibits 7 and 8.

12. On the basis of Exhibits 4(8), 7 and 8 as well as Exhibit-F, the learned First Appellate Court came to a finding that the plaintiffs have sufficiently proved that Dharendra Nath Brahma has sold the suit land i.e. Schedule-A land to Rup Chand Sethia and thereafter Tez Karan Sethia and Kalkati Devi purchased the said suit land i.e. the Schedule-A land from the legal heirs of Rup Chand Sethia. On the basis thereof, the learned First Appellate Court held that one Dharendra Nath Brahma had sold the Schedule-A land and the Defendant Nos.1 to 4 could not have again sold the same land to the Defendant No.5 by way of the Sale Deed No.575/2000 and the rectification Deed No.871/2000.

13. Further to that the learned First Appellate Court had also taken into consideration the Report of the Assistant Settlement Officer, Dhubri (Exhibit-C) wherein it was mentioned that there existed three chali house belonging to the Defendant Nos. 1 to 4 over the suit land. It was the finding of the learned First Appellate Court even if it was held that there were existed three chali houses over the suit land as on 09.10.2001 (Exhibit-C), then also the same cannot be a conclusive proof of the fact that the Defendant Nos.1 to 4 were in continuous possession of the suit land to the exclusion of the plaintiff. It was also take note Page No.# 11/21 of that the Defendant Nos.1 to 4 were not examined and there was absolutely no material on record to show as to how and when the said houses were constructed and as such the continuous possession of Defendant Nos.1 to 4 could not have been presumed. On the basis of the above, the learned First Appellate Court held that the Trial Court had rightly discussed the materials on record and had rightly decided the Issue No. 5, 6 and 7 and the point of determination was accordingly decided in favour of the plaintiffs.

14. The second point for determination was as to whether the learned Trial Court had rightly decided the Issue Nos. 1, 2, 3 and 4 wherein it has been held that the suit is maintainable, the suit is not bad for non-joinder of any other party, is not under valued and is not barred by limitation. The learned First Appellate Court held that the learned Trial Court had decided the said Issue Nos. 1, 2, 3 and 4 in accordance of law and thereby affirmed the said findings. On the basis of the said decision reached in respect to the points of determination so framed, the learned First Appellate Court dismissed the appeal and upheld the judgment and decree dated 08.02.2012 passed by the Court of Munsiff No.1, Dhubri in Title Suit No.226/2000. Being aggrieved and dissatisfied, the instant appeal has been filed under Section 100 of the Code.

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 Page No.# 12/21 defined in the Code. Black’s Law Dictionary (7 Edition) defines an appeal as “a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority”. 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 extent”. 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 law”. Therefore for entertaining an Appeal under Section 100 of the CPC, it is immaterial as to whether it is against “concurrent findings” or Page No.# 13/21 “divergent findings” 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 the High 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 when a Second Appeal is dismissed in limine, the High Court has to record reasons. 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 law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “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. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of Page No.# 14/21 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.” 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.”

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 Page No.# 15/21 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.”

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 case”, 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 both the parties.

21. Mr. K. M. Haloi, the learned counsel appearing on behalf of the Page No.# 16/21 Appellant submits that although initially at the time of filing the instant appeal, certain substantial questions of law were proposed however, during the course of hearing, he submitted that he is not relying upon the said proposed substantial question of law but would rely upon the following 3 substantial question of law which are mentioned hereinunder. (I) Whether the learned Trial Court as well as the First Appellate Court below are correct in arriving into the findings that the appellant/Defendant No.5 has admitted the facts pleaded by the plaintiffs about the execution of Exhibit- 4(8) sale deed executed by Dharendra Nath Brahma in favour of one Rup Chand Sethia and Exhibit 7 and 8 executed by the legal heirs of Rup Chand Sethia in favour of Tez Karan Sethia and Kalkati Devi and holding these facts need not be proved as per the provision of Section 58 of the Indian Evidence Act, 1872 ? (ii) Whether the learned Trial Court as well as the First Appellate Court below are correct in arriving into the findings that the Defendant No. 1, 2, 3 and 4 legal heirs of Dharendra Nath Brahma did not have any right to sell the suit land to the appellant/Defendant No.5 as the same was sold to one Rup Chand Sethia by their predecessor in interest without proving this fact by the plaintiffs on the basis of which they were claiming a decree in their favour ? (iii) Whether the learned Trial Court as well as the First Appellate Court below are correct in not taking into account Exhibit-H document issued by the Assistant Settlement Officer, Dhubri submitted in a proceeding under Section 145 Cr.P.C. about the suit land ?

22. The learned counsel for the appellant submits that the first substantial Page No.# 17/21 question of law arises and involved in the instant case is as to whether the concurrent findings of fact arrived at by the Court below on the basis of Exhibit- 4(8), Exhibit-7 and Exhibit-8 could have been proved as per the provisions of Section 58 of the Indian Evidence Act, 1872. He further submits that the learned Courts below in arriving at the finding of fact that the Defendant Nos.1, 2, 3 and 4 i.e. the legal heirs of Dharendra Nath Brahma did not have any right to sale the suit land to the Defendant No.5 as the same was sold to Rup Chand Sethia by their predecessor suffers from perversity as the said aspect of the matter was not proved by the plaintiffs in accordance with law. He further submits that the findings of both the Courts below are perverse for not taking into account Exhibit-H document issued by the Assistant Settlement Officer who submitted the said report in a proceeding under Section 145 Cr.P.C.

23. On the other hand Mr. S. Sharma, the learned Senior Counsel submits that from Exhibits 4(1) to 4(13) which were the registered Deeds of Sale, it would be seen that 8 Bigha 3 Katha 14¼ Lecha were sold by Late Dharendra Nath Brahma during his life time. The remaining 2 Bighas 0 Katha 7¾ Lechas were sold vide Exhibit-4(11) to 4(13) by the legal heirs of Late Dharendra Nath Brahma. Specifically referring to Exhibit 4(4) and 4(9), the learned counsel submits that 2 Kathas 10 Lechas of land were sold vide registered Deed No.7528 dated 15.09.1971 and 1 Katha vide Deed No.5717 dated 26.05.1972 to the father of the plaintiff i.e. Late Tez Karan Sethia. He further submitted that vide Exhibit 4(8), which is the registered Deed of Sale No. 5716 dated

26.05.1972, a plot of land measuring 1 Katha 6¼ Lechas was sold by Late Dharendra Nath Brahma. The learned counsel further draws the attention to Exhibits-7 and 8 which were the registered deed of sale by which the legal heirs Page No.# 18/21 of Rup Chand Sethia sold 3 Kathas 16¼ Lechas to the father and mother of the plaintiff. These documents would clearly show that legal heirs of Late Dharendra Nath Brahma did not have any land to be sold and as such the sale of 1 Katha 5 Lechas of land to the Defendant No.5 by the Defendant Nos. 1 to 4 was no sale at all in the eyes of law as the legal heirs of Late Dharendra Nath Brahma did not have a saleable right to execute the registered Deed of Sale No. 575 as well as 871 in favour of the Defendant No.5. He further submitted that the questions of law which have been proposed by the learned counsel for the appellant does not arise in the facts and circumstances of the instant case. The question of perversity in the concurrent findings of fact also does not arise.

24. After hearing the parties and on perusal of the materials on record, let this Court take into consideration the contentions raised by the learned counsel for the Appellant. The first contention so raised is as to whether Exhibit-4(8), Exhibit-7 and Exhibit-8 were proved as per the provisions of Section 58 of the Indian Evidence Act, 1872. Section 58 of the Indian Evidence Act, 1872 stipulates the facts admitted need not be proved. It would further appear from a perusal of the said Section that no fact need be proved in any proceedings which the parties thereto or their agents agreed to admit at the hearing, or which, before the hearing, they agreed to admit by any writing under their hands or which by any rule of pleadings in force at the time they are deemed to have been admitted by their pleadings.

25. The said substantial question of law so proposed cannot be a substantial question of law involved in the instant case inasmuch as a perusal of both the Trial Court’s judgment as well as the First Appellate Court’s judgment would show that the Courts below did not only on the basis of the pleadings Page No.# 19/21 took into consideration of Exhibit-4(8), 7 and 8 but the said Exhibits were duly exhibited. A perusal of the First Appellate Court’s judgment further would go to show that the Court below have drew presumption on the authenticity of Exhibit-4(8) on the ground that the said document was a registered document which was 30 years old. The said presumption could not be dislodged by the Appellant herein during the Trial. Under such circumstances, the question of law so proposed cannot be a question of law which can be formulated in the instant case.

26. The second question of law so proposed was as to whether there was perversity in the concurrent findings of fact that the Defendant Nos. 1, 2, 3 and 4 did not have a saleable right to transfer the suit land to the appellant/Defendant No.5 as the same was sold to one Rup Chand Sethia. In the opinion of this Court the same also cannot be a substantial question of law as it is a question fact which has been already conclusively held by the learned First Appellate Court which is the final Court on facts. Be that as it may, a perusal of the impugned judgment and decree passed by the First Appellate Court would show that on the basis of the pleadings as well as the evidence on record, the First Appellate Court on the basis of Exhibit- 4(8) which was never challenged by either Late Dharendra Nath Brahma nor the Defendant Nos.1 to 4 at any point of time, came to a finding that the plaintiffs have right, title and interest over the Schedule-A land. It further appears that the First Appellate Court had also gone into the question as regards the boundaries as mentioned in Exhibit-4(8) and compared the same with the Deed of Sale No.575 dated

24.03.2000 and the correction Deed No. 871 (Exhibit-E)) and came to a finding that the boundary of the land sold by Exhibit-4(8) and the Schedule-A land as well as the land purchased by the Defendant No.5/Appellant vide Exhibit-E is Page No.# 20/21 one and the same and as such the Defendant Nos.1 to 4 did not have a saleable right to execute the registered Deed of Sale bearing No.575 dated 24.03.2000 as well as correction Deed No.871. Under such circumstances, as the final Court of facts have already on the basis of the materials on record had come to a finding that the Defendant Nos. 1, 2, 3 and 4 did not have a saleable right to transfer the suit land in favour of the Defendant No.5/Appellant and the learned counsel for the appellant have not been able to show any perversity in the said findings of the judgment and decree passed by the First Appellate Court, the said question of law proposed cannot be formulated as a substantial question of law involved in the instant appeal.

27. The learned counsel for the Appellant submitted that a substantial question of law arises in the instant appeal on the ground of perversity inasmuch as both the Courts below did not take into account Exhibit-H which is a document issued by the Assistant Settlement Officer, Dhubri in a proceedings under Section 145 Cr.P.C. as regards the suit land. A perusal of Paragraph 36 of the impugned judgment and decree passed by the First Appellate Court would reveal that the said document was duly taken into consideration and the First Appellate Court came to a finding that the said document cannot be a conclusive proof of fact that the Defendant Nos.1 to 4 were in continuous possession of the suit land exclusive of the plaintiffs. The First Appellate Court also had taken into consideration that the Defendant No.5 who was the DW-1 had further admitted in his cross-examination that prior to the institution of the proceedings under Section 145 Cr.P.C., the Defendant No.3 had no house over the suit land which shows that the Defendant No.3 or for that matter the Defendants did not possess the suit land prior to the institution of the proceedings under Section 145 Cr.P.C. The learned counsel appearing on behalf Page No.# 21/21 of the Appellant could not show any perversity in respect to the said findings arrived at by the Court below as regards Exhibit-C. Under such circumstances the said question of law so proposed cannot be also a substantial question of law involved in the instant appeal which can be formulated.

28. In view of the above, as there is no substantial question of law which arises in the instant appeal, this Court therefore dismisses the instant appeal for the reasons above mentioned. The Respondent shall be entitled to the costs of the instant proceedings. JUDGE Comparing Assistant