Point of Law : Merely giving suggestions and not adducing any evidence to substantiate the same, cannot entitle the plaintiff to a decree as prayed for.

JUDGEMENT :

Heard Mr. G. P. Bhowmik, the learned Senior Counsel assisted by Mr. M. Hore for the appellant and Mr. A.K. Purkayastha, the learned counsel representing the respondent Nos. 1, 2 & 3.

2. Both these appeals i.e. RSA No. 62/2021 and RSA No. 78/2021 were listed before this Court under the provisions of Order XLI Rule 11 of the Code of Civil Procedure, 1908 (for short “the Code) and are directed against the judgment and decree dated 20/01/2015 passed in Title Appeal No. 54/2013, whereby the judgment and decree dated 29/06/2013 passed by the Munsiff, Bilasipara in Title Suit No. 78/2009 was affirmed. It is relevant to note that the trial court vide the judgment and decree dated 29/6/2013 dismissed the suit and the counter claim filed by the principal defendants/the principal respondents herein was decreed.

3. This Court vide an order dated 17/11/2021 in both the Second Appeals had granted the liberty to the appellant to insert the proposed substantial questions of law as are required under Section 100(3) of the Code and in pursuance thereof, four substantial questions of law were proposed to be involved in both the appeals which were as herein under :-

“1. Whether the lower Appellate Court is justified for not holding that location of the suit land mentioned in the Schedule A & B of the plaint of T.S. No. 78/2009 and location of the land mentioned in the Exhibit-A registered sale deed i.e., in Schedule C & D of the counter claim of the defendants/respondents are of different place ?

2. Whether the lower Appellate Court is justified for not taking the learned Trial Court committed illegality for nor framing an issue namely “whether location of the suit land described in Schedule A & B and the land described in Exhibit-A, registered sale dee i.e., the Schedule C & D of counter claim are of different locality ?

3. Whether the lower Appellate Court is justified for not holding that appointment of an Amin Commission under Order XXVI Rule 9 CPC to survey location of the land described in the suit land of Schedule A & B and the land described in Ext. A sale deed i.e. the Schedule C & D of counter claim of defendants/respondents is necessary to resolve the controversy involve in the case ?

4. Whether there is perversity in finding of facts and land involve in the case in deciding the issue No. 12, 13 and 14 on counter claim of the defendants/respondents ?”

4. Before dealing with the said substantial questions of law so proposed, it would be apposite herein to take note of the contours of the jurisdiction under Section 100 of the Code.

5. At this stage, it would be relevant herein to take note of, that both the appeals arise out of the concurrent findings of the courts below. Section 100 of the Code permits the High Court to exercise jurisdiction against an appellate decree only when there arises a substantial question of law. The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case nor intended to refer only to question of law of general importance but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial question of law’ means not only ‘substantial question of law’ of general importance but also a substantial question of law arising in a case as between the parties. In the context of Section 100 of The Code any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome will not be a substantial question of law. Where there is a clear and settled enunciation of a ‘question of law, it cannot be said that a case involves a substantial question of law’. It is said that a substantial question of law arises when a question of law which is not finally settled, arises for consideration in the case but this statement has to be understood in the correct perspective meaning thereby that when