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Judgment
Heard Mr. K. Sarma, learned counsel appearing for the appellants. Also heard Mr. R. Sarma, learned counsel representing Respondent No.1 as well as Mr. T.R. Gogoi, the learned Government Advocate, Assam representing Respondent Nos.2, 3 and 4.
This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) whereby the judgment dated 21.07.2014 passed by the learned Civil Judge, Nalbari in Title Appeal No.07/2014 affirming the judgment and decree dated 23.12.2013 passed by the learned Munsiff No.1, Nalbari in Title Suit No.61/2009, has been challenged.
The appellants being the legal heirs of Late Baliram Kumar, are the owner of a plot of land covered by Dag No.411 of N.K.P. No.5 under Katain No.105. A portion of the land was acquired by the State for construction of the National Highway. They were given the compensation of the land. The appellants, now, claim that they had a house over the said land and they should get compensation for the loss of that house also.
The appellants had admitted before the trial court that on the basis of an advice of the concerned Circle Officer, they had already demolished that house on their own.
The trial court dismissed the suit of the plaintiff on the ground that the plaintiff failed to prove that there was, in fact, a house over the land. The appellate court also agreed with the decision of the trial court and dismissed the first appeal.
The second appeal was admitted for hearing upon the following substantial question:
Whether the learned court below committed error in not declaring the title of the plaintiff over the suit house on the basis of the proved documents?
I have considered the submissions made by the learned counsels of both sides.
The so-called substantial question of law framed in this appeal, is a question of fact dependent upon evidence. The appellants adduced evidence in this case and failed to prove that there was, in fact, a house over his land.
In Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134, the Hon’ble Supreme Court has held as under:
“7.Section 100 of the Code of Civil Procedure (hereinafter referred to as “the Code”) was amended by amending Act 104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved a substantial question of law. Such question of law has to be precisely stated in the memorandum of appeal and formulated by the High Court in its judgment, for decision. The appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. The amending Act was introduced on the basis of various Law Commission reports recommending making of appropriate provisions in the Code of Civil Procedure which were intended to minimise the litigation, to give the litigant a fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the courts to be substantial question of law. We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi [AIR 1959 SC 1204] held: (AIR p. 1205, para 3)
“It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact.”
Unlike the second appellate court, the first appellate court is the final court of facts. Pure findings of fact remain immune from challenge before the High Court in second appeal. The first appellate court is also a final court of law in the sense that it’s decision on a question of law, even if erroneous, may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has ceased available to correct the errors of law or the erroneous findings of first appellate court even on question of law, unless such question of law be a substantial one.
In the case in hand, the appellants had to prove that there was a house over the land and they failed to do so. This is a finding of fact by the trial court and affirmed by the first appellate court.
In this appeal, there is no substantial question of law to be decided by this Court. Under the circumstances, this Court is of the opinion that this appeal has no merit at all and stands dismissed accordingly.
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