Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Gau) 16615

GAUHATI HIGH COURT
Robin Phukan, J
Manju Devi – Appellant
Versus
Jyotirmoy Dey – Respondent
RSA No. 139/2019

Advocates:
For the Appellants/Petitioners: G.N. Sahewalla, S. Todi
For the Respondents: S. Ali, A. Ikbal, R. Barua

In a second appeal under Section 100 of the Code of Civil Procedure, the court is limited to substantial questions of law. Parties cannot raise new jurisdictional grounds for the first time if they were not argued during earlier proceedings, and concurrent factual findings regarding tenancy default are binding.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Jurisdiction is confined to substantial questions of law formulated at the time of admission - Appellate court cannot interfere with concurrent findings of fact based on evidence - An entirely new point raised for the first time cannot be considered unless it goes to the root of the matter. (Paras 9, 13.1)

(B) Rent Control Laws - Applicability - Tenant having submitted to the jurisdiction of lower courts by filing written statements and participating in trial cannot challenge the jurisdiction for the first time in second appeal - Doctrine of Merger - The decree of the trial court merges into the decree of the first appellate court upon disposal of an appeal. (Paras 12.1, 12.4, 13.3)

(C) Transfer of Property Act, 1882 - Section 114 - Relief against forfeiture for non-payment of rent - This equitable relief is applicable only in cases of lease determined by forfeiture - Cannot be claimed as double protection where provisions of rent control acts apply. (Paras 15, 15.1, 15.2)

Facts of the case:
A landlord initiated a suit seeking eviction and recovery of rental arrears against a tenant. The trial court decreed the suit in favor of the landlord, finding the tenant to be in default of rent payments. An appeal before the first appellate court affirmed the trial court's decision. The tenant subsequently filed a second appeal, for the first time arguing the non-applicability of the local rent control legislation and seeking the benefit of relief against forfeiture of the lease.

Findings of Court:
The court observed that the lower courts recorded concurrent findings regarding the tenancy and default in payment of rent, which cannot be re-appreciated in a second appeal. The court held that the decree of the trial court merged with that of the first appellate court, and the absence of specific observations regarding the local rent control legislation did not render the findings illegal. Furthermore, the court held that a party cannot introduce new jurisdictional arguments at the stage of a second appeal after having submitted to the jurisdiction of the forums below.

Issues: Whether the appellate decree was illegal for failing to address the application of specific rent control legislation; whether the tenant is permitted to raise new legal arguments for the first time in second appeal; and whether the tenant is entitled to relief against forfeiture of the lease under property law.

Ratio Decidendi: Second appellate jurisdiction is strictly confined to substantial questions of law. Where a litigant fails to raise jurisdictional or statutory objections before the trial and first appellate courts, they are precluded from agitating such points for the first time in a second appeal unless they involve the fundamental competence of the court. Additionally, concurrently established facts cannot be disturbed through the re-evaluation of evidence by a superior court.

Result: Appeal dismissed.

Table of Content
1. procedural history and factual background of the title suit. (Para 1 , 2 , 3 , 4)
2. identification of substantial questions of law and party arguments regarding statutory applicability. (Para 5 , 6 , 7)
3. scope of second appeal under section 100 cpc and finality of concurrent findings of fact. (Para 8 , 9 , 10 , 11 , 12)
4. prohibition against raising new issues for the first time in second appeal. (Para 13 , 14)
5. inapplicability of section 114 tpa on forfeiture in the absence of an express lease agreement. (Para 15 , 16)

JUDGMENT AND ORDER

Heard Mr. G.N. Sahewalla, learned Sr. counsel assisted by Ms. S. Todi, learned counsel for the appellants and also heard Mr. S. Ali, learned counsel for the respondent.

2. This second appeal, under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree, dated 22.04.2019, passed by the learned Civil Judge, Sivasagar (hereinafter Appellate Court), in Title Appeal No.4/2018. Notably, vide impugned judgment and decree, dated 22.04.2019, the learned Civil Judge, Sivasagar, has affirmed the judgment and decree, dated 13.03.2018, passed by the learned Munsiff, Charaideo, Sonari, in Title Suit No.15/2010.

3. For the sake of convenience and also to avoid confusion, the status of the parties, will be referred to by their original status in the suit, before the learned Trial Court.

Background Facts:-

4. The background facts leading to filing of the present appeal are briefly stated as under:-

“The respondent/plaintiff had filed one title suit, being Title Suit No.15/2010, before the learned Munsiff, Charaideo, Sonari, against the defendant, alleging inter alia amongst others that the father of the plaintiff and the proforma defendant was the original owner of the plot of land measuring 3 katha 15 lecha covered by Dag No.1158 of periodic patta No.26 of Sapekhati Mouza, No.1 Kathiakhunda village, under Sivasagar district together with one Assam type pucca house standing thereon. After the death of their father, the plaintiff and the proforma defendant, became the absolute owners of the aforesaid plot of land and the house thereon. But, after the family settlement in the year 1994, only the plaintiff became the owner of the tenanted premises, described in the schedule of the plaint, which is the part of the house of the Assam type house, standing behind the shop house. The defendant No.1 started to pay rent to the plaintiff through the defendant No.2 irregularly. Thereafter, in the year 2001 the plaintiff was compelled to serve legal notice for the payment of rent and the defendants started to breach the conditions of the tenancy. The defendants again stopped the payment of monthly rent from January, 2009 and the defendants became defaulter. The defendants also raised false claim before the Inspecting Authority of Land Acquisition Department, showing the entire tenanted premises to be his own, and tried to grab the plaintiff’s right over the tenanted premises and then the plaintiff had instituted the suit seeking following relief(s):-

(a) Decree be awarded by declaring that the Defendants are Tenants under the Plaintiff in respect of the Tenanted premises (Suit Premises) and they have already became the Defaulter, and unauthorized occupier, and liable to be evicted for no payment of rents, and for ante Tenancy activities etc.

(b) Decree be awarded by declaring that the Tenants/Defendants are not entitle to retain the possession of the Tenanted shop house if it remains un used and without being demolishing the existing houses after due acquisition.

(c) Decree be awarded by evicting, and by removing all such fixtures, tools and equipments, goods and utensils etc. of the Defendants from the Suit premises and deliver the khas and vacant possession to the Plaintiff.

(d) Decree be awarded for recovery of Rs.13,200/- (Rupees Thirteen thousands and Two Hundred Only) against arrear of rents with simple interest accrued thereon, and with compensatory cost.

(e) D

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2026 Supreme(Online)(Gau) 16615

GAUHATI HIGH COURTRobin Phukan, JManju Devi – AppellantVersusJyotirmoy Dey – RespondentRSA No. 139/2019

Cases Referred (10)

GAUHATI HIGH COURT
Robin Phukan, J
Manju Devi – Appellant
Versus
Jyotirmoy Dey – Respondent
RSA No. 139/2019