Gujarat High Court
Rabari Govindbhai Prabhatbhai vs Dr. Natvarlal Khodidas Shah on 1 May, 2024
NEUTRAL CITATION
C/SA/95/1991 ORDER DATED: 01/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 95 of 1991
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RABARI GOVINDBHAI PRABHATBHAI & ORS.
Versus
DR. NATVARLAL KHODIDAS SHAH & ORS.
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 6
DELETED for the Respondent(s) No. 7,8,9
MR KJ VYAS(993) for the Respondent(s) No. 1,2,3,5
UNSERVED WANT OF TIM for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/05/2024
ORAL ORDER
1. The present Second Appeal is preferred under Section 100 of the C.P.C. by the present appellants - original defendants challenging the impugned order dated 11.03.1988 passed below Exh.15 application in Regular nd Civil Appeal No.190 of 1984 by the learned 2 Joint District Judge, Ahmedabad (Rural) at Narol by confirming the judgment and decree passed by the learned Joint Civil Judge, Dholka in Regular Civil Suit No.239 of 1979, whereby the trial court has decreed the suit for possession of agricultural land from the defendants.
Page 1 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined 2. Brief facts of the case are as such that the plaintiffs are the trustees and Vahivatdar of Dholka
Khoda Dhor Panjarapole Trust, which is registered under Bombay Public Trust Act, having its number 429. The said trust is the owner of agricultural lands including S.No.1680/1 and 1680/2 admeasuring A-2-13 gs. ench respectively. The plaintiff-Trust has come out with a case that they have obtained certificate under sec.88-B of Bombay Tenancy and Agricultural Lands Act. On that basis, the notice was served to the occupants of the above survey numbers, who are yearly tenants of the said lands, and sought possession of the rate of Rs.40/- p.a. The suit notice was served on 23.12.1977 for terminating the tenancy, which was replied by the defendants. The plaintiff has, therefore, filed the present suit to recover possession and arrears of rent, which came to be rejected by the trial court. Subsequently, the lower appellate court has also confirmed the order of trial court. Hence, the present petition has been preferred.
3. Heard Mr. Satyam Y. Chhaya, learned advocate for the appellants and Mr. K.J. Vyas, learned advocate for Page 2 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined the respondent Nos.1 to 3 and 5.
4. The following framed suggested substantial questions of law are as under:
"(1) Whether the decree passed by both the courts below can at all be sustained in view of the provisions of the B.T.& A.L.Act and the Gujarat Devasthan Inami Abolition Act?
(2) Whether in view of sec.85 and 85A of the B.T.& A.L.Act the findings on point Nos.3 and 4 can at all be sustained and are without jurisdiction and whether the decree for possession of suit lands can at all be sustained as in the suit, no reference is made to the competent authority who has exclusive jurisdiction to deal and decide the point Nos.3 and 4 and when the jurisdiction of the Civil Court is barred?
(3) Whether the decree passed is vitiated as no proper and legal procedure is followed ?
(4) Whether the construction placed in the matter of Section 88-B, 88-E of the B.T.& A.L.Act and the Gujarat Devasthan Inami Abolition Act is a correct construction and whether the certificate u/s. 88-B can at all be relied upon as the tenants were not heard when it was granted and whether in view of the Gujarat Devasthan Inami Abolition Act certificate u/s.88-B of the Tenancy Act stands cancelled?Page 3 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024
NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined (5) Whether the suit notice is legal and valid? (6) Whether the facts and circumstances of the case the defendants can be granted relief against forfeiture?" 5.1 Mr. Satyam Y. Chhaya, learned advocate for the appellants has submitted that the impugned order passed by the lower appellate court is bad in the eyes of law and in not in consonance with the provisions of law. Furthermore, he has submitted that the record suggests that the entire basis of the case of the plaintiffs was upon certificate issued by the competent authority under Section 88-B of the Gujarat Tenancy and Agricultural Lands Act, 1984 (hereinafter referred to as "the Tenancy Act"). Furthermore, he has submitted that as per Sections 85 and 85A of the Tenancy Act, it is clear that no Civil Court shall have jurisdiction to settle, decide or deal with any question, which is by under this Act, required to be settled, decided or dealt with by Mamlatdar, Tribunal, Manager, Collector, Gujarat Revenue Tribunal or the State Government. Furthermore, he has submitted that as per Section 85A, if any question involving nicety of Tenancy Act cropped up in Page 4 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined the civil litigation before any civil court, the issue should be referred to tenancy authority exercising powers under the Tenancy Act and after receiving the decision thereon, the suit proceedings can proceed further. Admittedly, in the present case, the moot question is about validity of certificate under Section 88-B, which was the basis of principal contention of the plaintiffs, is sought to be interpreted by the Civil Court and thus, both the courts below have committed an error, which is apparent on the face on the record. Furthermore, he has submitted that on a conjoint reading of provisions of Section 88-B, 88-E of Tenancy Act r/w Section 31 and Schedule-I of the Gujarat Devasthan Inams Abolition Act, 1960 (hereinafter referred to as "the Abolition Act"), it is absolutely clear that after enactment of the Abolition Act, any certificate issued under Section 88-B in favour of Gaushala would cease and the same shall stand revoked. Therefore, even if the certificate under Section 88-B was validly issued in favour of plaintiff - Trust, then also, the same is deemed to have been revoked. These crucial aspects are not considered by the trial court as well as the lower appellate court and thus, both the courts below have committed an error, which is apparent on the face of the Page 5 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined record while passing the impugned orders. Furthermore, he has submitted that any certificate issued under Section 88-B without giving any opportunity of being heard to the tenant cannot hold the field. However, these crucial aspects emerge from the record are also ignored by both the courts below. The trial court as well as lower appellate court have failed to appreciate that the appellants original defendants become deemed purchaser on 8.4.1957 as per the provisions contained in the Tenancy Act. The judgments referred to and relied upon by the defendants are not considered in proper perspective by the trial court as well as the lower appellate court. Thus, both the courts below have committed an error apparent on the face of record, which requires interference by this Court while exercising powers under Section 100 of the CPC. Furthermore, he has submitted that in the present case, both the courts below more particularly lower appellate court has failed to appreciate that the suit was instituted in the year 1979 and, therefore, reliance placed upon the authority by the lower appellate court regarding non-applicability of the Gujarat Devasthan Inami Abolition Act to the suits already instituted is bad in law.
Page 6 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined 5.2 Furthermore, he has relied upon the decision of this Court in the case of Patel Narottambhai
Ranchhodbhai v. State of Gujarat, reported in 2001 (1) GLH 446, and has submitted that the provision of the Tenancy Act vis-à-vis the Abolition Act and held that all the lands in possession of the tenant on or after 15.11.1969 would deem to have been purchased by the tenant and the exemption granted under Section 88-B of the Tenancy Act would stand revoked w.e.f. 15.11.1969. In the present case, no litigation was pending in the year 1969 and, therefore, interpretation by the lower appellate court in this regard is erroneous and thus, both the judgment and decree passed by the trial court as well as lower appellate court. In view of the above, he has prayed to allow the present Second Appeal.
6. Per contra, Mr. K.J. Vyas, learned advocate for the respondent Nos.1 to 3 and 5 has submitted that both Courts below has concurrently found that the suit land is not covered under Gujarat Devasthan Inami Abolition Act, 1969. Furthermore, he has submitted that both the courts below have concurrently held that Plaintiff Trust Page 7 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined is registered trust and has obtained exemption certificate u/s 88B of Tenancy Act on 16.02.1959 which includes the suit lands. Furthermore, he has submitted that both the Courts below have concurrently found that defendant is tenant-at-will & is not permanent tenant. Defendant did not paid SANTH from year 1996-97 & hence Plaintiff Trust has terminated the lease, as per the provisions of Transfer of Property Act, 1882 and has issued legal notice terminating the lease legally and the said notice is validly served on the defendant. Furthermore, he has submitted that provisions both the Acts, B.T. & A.L. Act 1948 and Gujarat Devsthan Inami Abolition Act, 1969 are not applicable to the lease in question. Furthermore, he has submitted that from the above facts and circumstances it can be seen that both the both the courts below have given concurrent findings relying on documentary evidence and has while arriving in the findings given cogent reasons for the same. He has relied upon the decision of the Hon'ble Supreme Court in (i) Civil Appeal no. 3575 of 2012 (Special Leave Petition (C) no. 5990 of 2009) in Ghisalal M. Agrawal (D) thr. LRS. & Ors. versus Rameshwar @ Ramu Jawaharlal & Anr.
(ii) C. Doddanarayana Reddy (Dead) by Lrs. and Ors. v.
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C. Jayarama Reddy (Dead) by Lrs. and Ors., reported in AIR 2020 SC 1912. In view of the above facts and position of law, he has prayed to dismiss the present Second Appeal by vacating the interim relief granted earlier.
7.1 I have considered the rival submissions made at the bar by the respective parties. I have gone through the materials available on the record. It transpires that both the courts below have concurrently found against the present appellants. It transpire that the present appellants have relied upon the provisions of Section 88(E) of the Tenancy Act and also some provisions of the Abolition Act. It also transpires that the original plaintiffs are trustees and Vahivatdar of Dholka Khoda Dhor Panjarapole Trust, which is registered under Bombay Public Trust Act. The said trust is the owner of agricultural lands including S.No.1680/1 and 1680/2 admeasuring 2 acres and 13 guntas of village Dholka. 7.2 It transpires that the present suit i.e. Regular Civil Suit No.239 of 1979 is filed by the original plaintiffs on the ground that plaintiffs trustees have obtained Page 9 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined certificate on the ground that the plaintiff trust has obtained certificate under the provision of Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948. On that basis, notice was served to the occupants i.e. appellants, who were claimed yearly tenants of the said land and the plaintiffs sought possession of the agricultural land with rent due from 1977 to 1978 at the rate of Rs.40 per annum. It also transpires that in the written statement filed by the appellants before the trial court, it was contended that the suit is barred on the ground of jurisdiction and the suit notice is not legal and as per the provision of the Gujarat Devasthan Inami Abolition Act, the defendants are the deemed purchaser of the suit land as per the written statement filed by the defendants. It also transpires that in the written statement filed by the appellants before the trial court, it was also contended that certificate obtained under Section 88-B of the Tenancy Act is nullified as per the provision contained in Section 31 of the Abolition Act. It also transpires that the trial court has framed the issues at Exh.21 and after recording the evidence and after considering the arguments of both the sides, the Court has after giving the findings about the issues, the trail Page 10 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined court has found that the suit is required to be decreed by upholding the suit notice, and the suit for possession of the agricultural land in favour of the plaintiff is decreed and arrears of rent from 1977- 1978 is granted. Being aggrieved by that, the Regular Civil Appeal No.190 of 1984 has been preferred by the lower appellate court. The lower appellate court has also confirmed the findings of the trial court by giving detailed reasons. 7.3 It also transpires that the the trial court has considered the provisions of Section 111 of the Transfer of Property Act and also considered the judgments relied on by the present appellants reported in 9 (1969) G.R.T. 28, whereby the arguments has been made on the basis of this decision that the Civil Court can make a reference to a tenancy court for decision of the question about tenancy right, even though certificate under Section 88B of Tenancy Act was obtained by the landlord. The lower appellate court has found that though the landlord has obtained 88B certificate, a reference can be made by the Civil Court, but it is left to the Civil Court whether in a fit case, such reference is not necessary, when every thing is on record, then it is not necessary to refer the Page 11 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined matter to the competent court under Section 85 (a) of Tenancy Act. It is also also observed by the lower appellate court that it is not necessary that the Civil Court is bound to make reference even though there appears to be no genuine dispute about the tenancy right, and therefore, in view of above observation, the lower appellate court has found that the authority cited by the advocate for the appellants wound not be such helpful to the defendants, who are appellants before the lower appellate court. The lower appellate court has also considered the judgment in the case of Chhatrapati Charitable Devasthan Trust Vs. Parisa Appa Bhoskeand others reported in A.I.R. 1979 Bom. 218 and the court has found that in the present case, it is not the case on record wherein the plaintiffs were registered subsequently after 01.04.1957, and the plaintiff Trust obtained 88B certificate from the Assistant Collector, Dholka Prant, Dholka on 16.02.1959, and actually, the plaintiff-Trust was registered 29.04.1953. The lower appellate court has also considered that the certificate granted by the Collector under Section 88B, is a conclusive evidence and the certificate obtained was regarding the trust property and the inquiry is between the Collector and Trust, and Page 12 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined the tenant is not at all in the picture. The lower appellant court has also considered the decision in the case of Maneksha Ardeshir Irani and others Vs. Manekji Edulji Mistry and others reported in A.I.R. 1974 S.C. 2123, and has observed the following paragraphs:
"A contention was a advanced on behalf of appellant that the appellant was entitled to a notice when the collector held an inquiry under section 88-B (2) of the Act for the purpose of granting a certificate to the respondent of granting. The Collector under section 88-B (2) of the Act grants a certificate after holding an inquiry that the conditions in the provision to section 88-B (1) are satisfied by any trust. The Trust has to satisfy two conditions. First, the Trusts is registered under the Bombay Public Trust Act, 1950 Second the entire income of the lands which are the property of the Trust is appropriated for the purpose of such Trust. The certificate granted by the Collector shall be conclusive evidence. The appellant raised this contention in the High Court that the appellant was entitled to a notice. The High Court did not accept the contention. The High Court held that the appellant at no stage denied the fact that the lands are the property of a trust The inquiry is between the Collector and the Trust. The conclusive evidence clause in the section means that it is a rule of evidence which would not render it necessary for it to prove again the compliance with the requirements."Page 13 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024
NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined After discussing in detail, the Court has held that there is no retrospective effect of newly added Section 88-B to the Tenancy Act, which came into force by Gujarat Act, 16 of 1969. That means, landlord Trust who obtained 88B certificate prior to 1969 will not be affected by newly introduced section, and in that case, the properties of the plantiff-Trust cannot be covered under the prevision of Gujarat Devasthan Inami Abolition Act, 1969. Lastly, the lower appellate court has discussed the judgment reported in the case of Motibhai vs. Trustees of Ramji Mandir reported in 15 GLR 18, and has observed that "substantive rights of landlords, who have already instituted suits when the exception certificates were valid, are not disturbed. Sec.88-E has no retrospective effect and it does not hit a validly instituted action". In light of this, the lower appellate court has confirmed the judgment of the trial court. 7.4 Considering the above-mentioned facts and contentions raised in the present Second Appeal, it transpires that in the view that the judgment cited by the learned advocate for the appellants in the case of Patel Narottambhai Ranchhodbhai (supra), whereby it is Page 14 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined sought that the provision of the Tenancy Act is interpreted vis-à-vis the Abolition Act and held that all the lands in possession of the tenant on or after 15.11.1969 would deem to have been purchased by the tenant and the exemption granted under Section 88-B of the Tenancy Act would stand revoked w.e.f. 15.11.1969. In the present case, the litigation was pending in the year 1969, which does not help the case of the present appellants on the facts of the case. The facts of that case are different than the facts of the present case. Both the courts below have dealt with the issues raised in the present matter, more particularly, by considering the provisions of the Abolition Act as well as the provisions of the Tenancy Act. Both the courts below have given cogent and convincing reasons while coming to the concurrent findings against the present appellants. 7.5 It is required to refer the scope of Section 100 of the Civil Procedure Code, which is as under:
"Section 100.
100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from Page 15 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
7.6 In view of this, this Court cannot re-appreciate the entire evidence while exercising the power under Section 100 of the C.P.C. This Court can only examine the matter based on whether any substantial question of law has arisen in the matter or not. In the present matter, as such, no substantial question of law has arisen.Page 16 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024
NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined 7.7 It is relevant to note that this Court, while admitting the appeal vide order dated 04.07.1991 has framed the following substantial question of law, as under:
"In the fact and circumstances of the case whether the courts below committed substantial error of law in interpretation and application of Section 88-E of the Bombay Tenancy and Agricultural Lands Act read with relevant provision of Gujarat Devasthan Inams Abolition Act, 1960?
7.8 Considering this and considering the submission made at the bar, whereby Mr. K.J. Vyas, learned advocate for the respondent Nos.1 to 3 and 5 has strongly contended that in the concurrent finding of fact, which are otherwise in consonance with law, the courts below have not committed any error. Hence, by referring the judgment of the Hon'ble Apex Court, he has submitted that this Court should not interfere in the findings of fact and dismiss the Second Appeal. I have considered the submissions in detail and taken into account the above-mentioned provisions of law. I found that both the courts below have rightly come to the conclusion that Section 88-E has no retrospect effect in Page 17 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined the facts and circumstances of the present case and the findings given by both the courts below are in consonance with law and materials available on the record. I found no perversity or illegality in the findings of both the courts below, more particularly, regarding the fact that interpretation and application of the provisions of the Abolition Act as well as the provisions of the Tenancy Act, which are perfectly justified in the judgment of both the courts below.
7.9 It is fruitful to refer the judgment in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others. reported in 2023 SCC Online SC 875 paragraphs 7, 14 and 15 which are reproduced as under:
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of Page 18 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC 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 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 Page 19 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 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.
In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] 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 [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) '5. ... when 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 Page 20 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined 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.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--
"(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where Page 21 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity"
the court will be justified in interfering with such findings."
7.10 It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Nazir Mohamed vs J. Kamala reported in AIR 2020 SC 4321, wherein, it is observed in paragraphs 56, 57 and 59 as under:
"56.As held by the Privy Council in Peri v. Chrishold reported in (1907) AC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world Page 22 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.
57.The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.
59.When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC."
7.11 In view of the above-discussion and in totality, I am of the opinion that both the courts below have not committed any error and the substantial question of law, which is framed by this Court in answered accordingly.
Page 23 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024 NEUTRAL CITATION C/SA/95/1991 ORDER DATED: 01/05/2024 undefined Interpretation and application the provisions of the
Abolition Act as well as the provisions of the Tenancy Act are perfectly justified in the facts and circumstances of the present case. Both the courts below have given cogent and convincing reasons, which are acceptable in the eyes of law and, therefore, no interference is required to be called for by this Court.
8. As a result, the present Second Appeal is dismissed with no order as to costs. Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 24 of 24 Downloaded on : Fri May 10 21:12:27 IST 2024