Point of Law: Section 100 of Code provides for a right of Second Appeal by approaching a High Court and invoking its aid and interposition to redress error(s) of Sub-Ordinate Court, subject to limitations provided therein.

JUDGMENT :

1. Heard Mr. S.D. Purkayastha, the learned counsel appearing on behalf of the Appellant and Mr. G. N. Sahewalla, the learned Senior counsel assisted by Ms. S. Todi, the learned counsel appearing on behalf of the Respondents.

2. This is an appeal under Section 100 challenging the judgment and decree dated 28.09.2021 passed by the Court of the Civil Judge No.1, Cachar at Silchar whereby the Title Appeal No.39/2016 was dismissed thereby upholding the judgment and decree dated 31.10.2016 passed by the Court of the Munsiff No.2, Cachar, at Silchar in Title Suit No.52/2013.

3. The instant appeal was listed for hearing at the stage of Order XLI Rule 11 of the Code and the questions involved therefore is as to whether the substantial questions of law as proposed can be formulated in terms with Section 100(4) of the Code. To appreciate the substantial questions of law so proposed, it would be required to take into consideration the brief facts of the case. For the purpose of convenience, the parties herein are referred to as the same status as they stood before the Trial Court.

4. The predecessor of the Appellant herein as the plaintiff had instituted a suit before the Court of the Assistant District Judge No.1, Cachar at Silchar. In the said suit, it is the case of the plaintiff that the Defendant Nos.1, 2 and 3 held title (foraiz interest) over the properties described in the Schedule to the plaint. The said properties were inherited by the said Defendant Nos.1, 2 and 3 being share holders in homestead and tank and other lands. It is the specific case of the plaintiff that the Defendants were not in possession of the land as they were residents of distant villages under Udhadharband P.S. and elsewhere. The Defendant Nos.1 and 2 had entered into an agreement with the plaintiff to sale and dispose of the land mentioned in Schedule to the plaint alongwith their sister, Defendant No.3 for a consideration of Rs.42,000/-and out of which an amount of Rs.8,000/-was received by the said two defendants. Accordingly, a Bainapatra was executed on 11.02.1991 in respect to the said transaction whereby the Defendant Nos.1 and 2 promised that within 2 months from the said date they alongwith their sister, i.e. the Defendant No.3 would execute the Deed of Sale in respect to the said properties described in the Schedule to the plaint upon receipt of the balance consideration of Rs.34,000/-.

5. It was the further case of the plaintiff that the Defendant No.4 who had knowledge of the aforesaid Bainapatra dated 11.02.1991 had approached the plaintiff to give at least 3 Kathas of the road side land at Sohabarighat for construction of a shop. The plaintiff refused for which the Defendant No.4 has put a challenge to him. It was mentioned in the plaint that out of the two witnesses to the Bainapatra dated 11.02.1991, one Badiujjaman Laskar was one of the attesting witnesses which was won over by the Defendant No.4. The plaintiff approached the Defendant Nos.1, 2 and 3 to take permission for sale of the land in terms with Bainapatra dated 11.02.1991 but the said defendants did not apply for the permission of sale. Thereafter on 14.03.1991, the plaintiff could come to learn that a Sale Deed was executed in favour of the Defendant No.4 by Defendant Nos. 1, 2 and 3.

6. Upon enquiry, it was found that the Defendant Nos.1, 2 and 3 for a consideration of Rs.21,000/- have sold an area of 7 Kathas 12 Chataks 5 Gondas of land within a specific boundary being roadside land. It was the case of the plaintiff that he had two houses in the said land and in one of the said houses had got 4 monthly bharatias in different rooms within the boundary of the land so sold by the Defendant Nos.1, 2 and 3 to the Defendant No.4. It was mentioned that the said sale which was made subsequent to the Bainapatra dated 11.02.1991 was bad inasmuch as the Defendant No.4 was bound by the Bainapatra dated 11.02.1991. It was also mentioned that the Defendant Nos.1 and 2 held title and inte