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Judgment
J.N. Sarma, J.—This is an appeal by the Plaintiffs. The Plaintiffs brought a suit being Title Suit No. 117 of 1976 before the Munsiff No. 1 at Barpeta and the suit was decreed. There was an appeal being Title Appeal No. 46 of 1986 before the learned Assistant District Judge, Barpeta and the appeal was allowed and the suit was dismissed. Hence this Second Appeal.
The only substantial question of law formulated is as follows:
Whether the findings of the Lower Appellate Court are vitiated by erroneous interpreting and misleading of the exhibits?
In order to maintain a Second Appeal, a mere question of law is not sufficient. It must be a substantial question of law. In order to be substantial question of law, the test is whether it is of general public importance or whether it directly or substantially effects the rights of the parties or whether the question is still open, i.e. it is not finally settled by the Supreme Court, Federal Court of Privy Council. The High Court cannot interfere in Second Appeal with the findings of fact given by the First Appellate Court based upon an appreciation of relevant evidence. Only a finding of facts by Lower Appellate Court not supported by material evidence can be challenged in Second Appeal. Any error or defect in appreciation of evidence cannot be the subject matter of interference u/s 100 of the Code of Civil Procedure. The finding of facts of the Appellate Court can be interfered with when important evidence has been ignored. Construction of a basic document of a title or of a document which is the foundation of the rights of the parties raises a question of law. Section 100 of the CPC does not permit fresh appreciation of evidence.
In this particular case, let us have a look at the Exhibits on behalf of the Plaintiffs. Exhibit-1 is the record of Misc. Case No. 27/93. Exhibit-2 is the application in that Probate proceedings. Exhibit-3 is the will of Durga Malakar in that Probate proceedings. These three documents of the Plaintiffs have been considered by the Appellate Court. In discussion the issue No. 4, the Appellate Court considered the Will executed by late Durga Malakar of which Probate was obtained in 1973. It was found by the Appellate Court that Durga Malakar during his life time gifted away the suit land altogether with other lands to his wife Gandhari Malakar by way of registered deed executed on 25.5.59. The learned Appellate Court also considered Exhibit-1, the record of Probate proceeding as well as Exhibit-2 and after considering the materials on record came to the findings that the Plaintiffs failed to prove that they acquired title to the land on the strength of the Will executed by Durga Kalita. No doubt the findings regarding limitation arrived at by the Appellate Court at issue No. 8 is an erroneous finding. But that does not change the basic finding of the Appellate Court that the Plaintiffs failed to establish his title on the basis of Exhibit-3, the Will. That being the position, there is no merit in this Second Appeal and the same is dismissed.
I have heard Shri B.M. Sarma, learned Advocate for the Appellants and Shri N. Chakraborty, learned Advocate for the Respondents.
I leave the parties to bear their own costs.