RSA 100/2010 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA This regular second appeal is taken up for hearing under order 41 rule 1 1 of the Code of Civil Procedure (hereinafter referred to as the ’CPC’ in short) in order to determine as to whether the appellant herein has made out a case un der section 100 of the CPC and/or has made out a case by formulating the substan tial question of law requiring the court to interfere with the decision of the f irst appellate court. 2. The brief facts of the case is narrated hereunder: The appellants herein are the defendants in Title Suit No. 153 of 2006 on the f ile of the learned Civil Judge (Sr. Division) No. 1 Karimganj wherein the respon dent No.1 herein is the plaintiff. The plaintiff brought the suit against the de fendants seeking for a decree: - A) For a declaration that plaintiff is owner of the schedule proper ty land by purchase and maliki right in respect of semi permanent house standing thereon the schedule land and is entitled to get khas possession of the suit pr operty by evicting the principal defendants; B) For a declaration that defendant No. 1 was/is a caretaker of the plaintiff and that defendants have No right, title, interest over the schedule land and its standing houses; C) For a declaration that defendants are bound by law and equity to hand over possession of the suit property in favour of the plaintiff and that i f the plaintiff failed to vacate the possession of the suit property in favour o f the plaintiff then the plaintiff is entitled to get recovery of khas possessio n of the suit property through court of law. D) For a perpetual mandatory injunction restraining the principal d efendants from an attempt and threatening to alienate the suit property or regis ter any sale deed in favour of any third party or hand over the possession of th e suit property to any third party and from attempting to create any disturbance in respect of title of the plaintiff over the suit property and from attempting to change the nature and feature of the suit property or any way cause loss and injury to the plaintiff, E) For any other relief or reliefs to which the plaintiff is entitled, F) For cost and compensation of the suit. 3. The defendants on receipt of summons from court have entered appearance and contested the suit by filing written statement contending inter alia raising various grounds as common in all the suits as provided under Order VIII of the CPC. Their case is that one Late Khan Bahadur Mahmud Ali and his brothers late M ussabbir Ali, Late Idris Ali and Ahmudur Rahman were in ejmali the owners of the land under Dag No. 409 and other vast landed properties and were partitioned am icably amongst their legal heirs. Therefore, the suit land and some other land f alls in the share of Sumsun Nehar Khanam, mother of the defendant No. 1, i.e. hi s grandmother and widow of late Khan Bahadur Mahmud Ali and since 1968 the said Sumsun Nehar Khanam got the suit land and possessed the same after constructing the residential Katcha house with the help and costs of expenditure borne by her son Abdul Mumit. The defendant No. 1 while possessing the suit land, Samsum Neh ar gifted the suit land orally to her daughter-in-law Halima Khatoon, defendant No. 2 in 1984 and subsequently said Samsun Nehar Khanam died in the year 1986 an d since then the defendant No. 2 became the absolute owner and possessing the sa me by constructing a house on the suit land in 1988 and her name was mutated in the record of rights accordingly and prayed for dismissal of the suit. 4. On pleadings of the parties the learned trial court has framed as many a s 8 (Eight) issues which are quoted hereunder- 1) Is there any cause of action for the suit? 2) Is the suit maintainable in its present form and manner? 3) Is the suit barred by limitation? 4) Is the suit bad for defect of parties? 5) Is the suit properly valued and stamped? 6) Whether the plaintiff is entitled to decree as prayed for? 7) Any other relief? 8) Whether the suit is bad for waiver, estoppel and acquiescence? 5. During the trial, the plaintiff examined as many as seven witnesses and exhibited certain documents whereas the defendant side though examined two witne sses but the evidence of DW 1 has to be expunged since he expired before he was cross-examined and therefore the defendant No. 2 remained in the fray. The defen dants also submitted certain documents. The learned trial court after considerin g the entire evidence on record decreed the suit in favour of the plaintiff. 6. Being aggrieved the defendants have assailed the judgement and decree on the file of the appellate court which culminated in dismissal and hence the pre sent regular second appeal. 7. Heard Mr. BR Dey, learned Sr. counsel assisted by Mrs. R Choudhury, lear ned counsel appearing for the appellants. 8. Mr. Dey, learned Sr. counsel has formulated the following substantial qu estions of law :- a) Substantial question of law arises whether non-consideration of Ext-7 re ad with Ext-A and C has vitiated the findings of the courts below. b) Substantial question of law arises when in paragraphs 9 and 10 of the wr itten statements the defendants mentioned inter alia that they constructed the K utcha House in 1982 and are in continuous possession adverse the title of the pl aintiffs vendor and No core issue regarding possession/adverse possession having been formed, the judgement and decree of the courts below on that point is liab le to be set side and quashed. c) Substantial question of law arises when in the plaint the plaintiff has given false boundary of the suit land in clear disregard of Exhibit-7 whether fr aud has been played by the plaintiffs to get the land of the defendants as fraud and justice cannot dwell together and for the ends of justice whether impugned judgement and decree passed by the courts below can be legally sustained. d) Substantial question of law arises when Sub-Registrar has been made a pa rty, whether the suit is maintainable without 80 CPC notice. 8. Admittedly the parties to the suit went for trial knowing well their res pective cases and accordingly evidences were recorded in support of their respec tive claims. The facts pleaded and established by documentary evidence is that t he defendant appellant, since deceased Adbul Mumit was a caretaker under the pla intiff. He was asked to look after the suit land for and on behalf of the plaint iff and only on 30.06.95 the defendant No. 1 was asked to vacate the land and on refusal the suit was filed within the period of limitation and therefore the qu estion of adverse possession though No issue was framed would not disentitle the plaintiff to get a decree when he has proved his right, title and interest duri ng the trial. 9. Relating to Ext-7 read with Exts A and C as raised as one of the substan tial question of law would not non-suited the plaintiff since the plaintiff has proved Ext-7 whereby he has purchased the suit land which has no relevancy to Ex t-A and C and hence it can be conclusively proved that No ground for interferenc e is made out since the question raised are not the substantial question of law as provided under Section 100 of the CPC. 10. Moreover, the High Court in exercise of its power under Section 100 of t he CPC cannot make a fresh appraisal of the evidence and come to a different fin ding contrary to the finding recorded by the first appellate court. The finding on the question of limitation alongwith Ext-7, Ext-A, and C and Notice under Sec tion 80 of the CPC on appraisal of evidence after taking into consideration the entire circumstances in the case are concurrent findings of fact arrived at by b oth the courts below which cannot be set aside by the High Court in exercise of power under Section 100 of the CPC. 11. For the reasons stated above, I do not find any substantial question of law involved to be adjudicated upon. Consequently thereupon no interference is c alled for in exercise of power under Section 100 of the CPC. 12. In the result, the Regular Second Appeal stands dismissed. Parties are l eft to bear their own costs.