A second appeal under Section 100 of the Code of Civil Procedure is restricted to established substantial questions of law. New claims, such as co-ownership, cannot be introduced if absent from the original pleadings, and the appellate court will not re-appreciate evidence absent perversity.

JUDGMENT & ORDER :

KAUSHIK GOSWAMI, J.

Heard Mr. O. P. Bhati, learned counsel appearing for the appellants. Also heard Mr. A. C. Sarma, learned Senior Counsel assisted by Mr. G. Bharadwaj, learned counsel and Mr. S. Barman, learned counsel, appearing for the respondent.

2. Factual Matrix

2.1. The appellants, as plaintiffs, instituted Title Suit No. 14/2004 before the Civil Judge (Sr. Div.) Nalbari (hereinafter referred to as the “trial court”), seeking declaration that Sale Deed No. 1907/2002 dated 12.08.2002 is forged, fraudulent and collusive, along with consequential reliefs including cancellation of mutation.

2.2. The defendants contested the suit by filing written statements. Upon trial, the learned trial court decreed the suit in favour of the plaintiffs.

2.3. Aggrieved thereby, the respondent No. 1 preferred Title Appeal No. 15/2007 before the District Judge, Nalbari, (hereinafter referred to as the “first appellate court”). The learned first appellate court, being the final court of facts, re-appreciated the evidence and reversed the findings of the trial court.

3. Issues Framed by the Trial Court

3.1 The learned trial court framed the following issues:

“1. Whether the Suit is maintainable in the present form?

2. Whether there is any cause of action for the Suit?

3. Whether the Suit is barred by limitation?

4. Whether the Suit is bad for non-joinder of necessary parties?

5. Whether the Suit is bad for mis-joinder of parties?

6. Whether the Deed of Sale is liable to be cancelled?

7. Whether the Plaintiff is entitled to get a declaration about the title by issuing precept to Sub-Registrar, Nalbari for cancellation of the Deed of Sale in the concerned Register book?

8. Whether the Plaintiff is entitled to get a declaration for cancellation of the mutation of Defendant No. 1 over the D/L?

9. Whether the Plaintiff is entitled to get a decree for confirmation of possession or permanent injunction?

10. What relief/reliefs the parties are entitled to?”

4. Substantial Question of Law

4.1. This Court, while admitting the appeal, framed the following substantial question of law:

“Whether the learned lower appellate court erred in fundamentals of law relating to transfer of immovable property jointly owned in entertaining the sale deed (Ext. 4), admittedly executed only by the appellant No. 1 and not by the co-owners, i.e., the appellant Nos. 2 and 3?”

5. Submissions

5.1. Mr. O. P. Bhati, learned counsel for the appellants contends that appellant Nos. 2 and 3, being co-owners, their rights could not have been transferred by appellant No. 1 alone, and their signatures as witnesses do not amount to execution.

5.2. Per contra, Mr. A. C. Sarma, learned senior counsel for the respondents submits that no substantial question of law arises and the appeal seeks re-appreciation of evidence, which is impermissible.

6. Scope of Interference under Section 100 of the CPC.

6.1. The law governing second appeals is no longer res integra. The jurisdiction under Section 100 CPC is confined to substantial questions of law.

6.2. In Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179, the Apex Court held as under:

“14. A point of law which admits of no two opinions may be a proposition of law but 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