Manojit Bhuyan, J. –

Heard Mr. GN Sahewalla, learned Senior counsel assisted by Ms. SS Bauri, learned counsel for the appellants. Also heard Mr. BR Dey, learned Senior counsel assisted by Mr. S Deb, learned counsel for the respondents.

2. Title Suit No.315/1993 as well as Title Appeal No.72/2002 filed by the appellants herein did not find favour of the courts below. Besides the findings on interpolation of Ext-8 and the authority of PW-1 to depose on behalf of all the appellants/plaintiffs, the crux of the matter revolved round the issue as to whether the appellants/plaintiffs have right, title and interest over the suit land. The courts below proceeded to try the case on the premises as to whether the appellants/plaintiffs could establish title over the suit land. Be it mentioned that the respondents/defendants had filed written statement and counter claim. In the additional issue No.3 pertaining to appellants' right, title and interest over the suit land, learned courts below took note of the document at Ext-8 being the jamabandi vis-a-vis description of the suit land as in the schedule to the plaint. The courts below held that said Ext-8 pertaining to periodic patta No.129 (old) and 458/10 (new) covered by Dag No.80 did not tally with the schedule to the plaint where the suit land has been described as pertaining to I lam Patta No.3(old) and 458/10 (new) covered by Dag No.80. While looking at the said document at Ext-8, the courts below also noticed interpolation in the said document. Finally, the courts below upon appreciation of the materials on record held that the appellants/plaintiffs have no right, title and interest over the suit land. On the other hand, with regard to additional issue No.5 pertaining to right, title and interest over the land claimed in the counter claim, the same was found in favour of the respondents/defendants. As a result, the suit was dismissed and the claim over land as described in the counter claim was decreed.

3. On 13.6.2005, this Court while admitting the second appeal for hearing had formulated the following substantial questions of law,

"1. Since the suit land and the land in question claimed in the counter claim, are different plots of land, whether the respondents can claim and file counter in terms of Order 8, Rule 10 CPC?

2. Whether the findings arrived at by the learned courts below suffer from perversity."

4. In so far as the first substantial question of law is concerned, both the courts below have rendered concurrent finding to the effect that the document relied upon by the appellants/plaintiffs, i.e. Ext-8 to establish title over the suit land and description of land so given in the said document did not tally with the description in the schedule to the plaint. To that extent, this Court in exercise of power under Section 100 of the CPC refrains from going into the adequacy and sufficiency of evidence and/or to re-appreciate or make fresh appraisal of the evidence. In so far as the question as to whether the respondents/defendants can file counter claim in respect of any other land which does not involve the suit land, is a question of law which, in the present context, does not involve a substantial question of law to be gone into.

5. In any event, in so far as the appellants'/plaintiffs' claim of title over the suit land is concerned, there are no compelling reasons for this Court to make any interference, more so, when there is no substantial error resulting in error in the decision. The evidence and materials on record do not disclose any perversity in order that this Court may be called upon to interfere with the concurrent findings of the courts below.

6. Since the existence of substantial question of law is a sine-qua-non for exercise of power and jurisdiction under Section 100 CPC, and there being no such question involved in this appeal, the conclusion thereof is that this appeal must fail.

7. Accordingly, this appeal stands dismissed, however, without any order as to costs.

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