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Judgment
Heard Mr. S. Biswas, learned counsel appearing for the appellants. Also heard Mr. S. Ali, the learned counsel representing the respondents.
This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) whereby the judgment dated 09.11.2022 passed by the court of learned Addl. District Judge No.3, Kamrup(M), Guwahati in Title Appeal No.05/2020, which affirmed the judgment and decree dated 03.05.2019 passed by the learned Civil Judge No.1, Kamrup(M) at Guwahati passed in T.S. No.354/2019.
The factual matrix leading to filing of this appeal is – late Gopal Dey Choudhury was the owner of 10 lechas of land. He had four daughters and one son. All the four daughters are already married. They live in their matrimonial houses. Only the son Jayanta Dey Choudhury occupied the land of his deceased father.
In the meantime, Jayanta Dey Choudhury expired. One of the married daughters of Gopal Dey Choudhury also expired leaving behind her legal heirs. Now, these legal heirs of the deceased daughter and the other three daughters of Gopal Dey Choudhury have claimed shares in the land left behind by their father.
According to law, the daughters of late Gopal Dey Choudhury are also entitled to equal shares in the property left behind by their father.
The appellants submit that one part of the land of late Gopal Dey Choudhury has a transformer installed by the electricity authorities and this transformer occupies 2 lechas of the said land. According to the appellants, the remaining 8 lechas of lands are to be divided into 5 parts and if it is done, the appellants will have less than 2 lechas of land. The appellants claimed that less than 2 lechas of land is not sufficient for building a house thereon. The appellants referring to Section 2 of the Partition Act, 1893 has pleaded that the other 4 parts of the land should be sold and they will buy the said 4 parts of the land.
This appeal was admitted for hearing upon the following substantial questions of law-
I. Whether Section 6 of the Hindu Succession (Amendment) Act, 2005 is applicable in the present case where the parties are guided by daybhaga school of law?
II. Whether the findings arrived into by both the courts below is perverse having not considered the evidence on record?
Mr. Biswas has submitted that this Court should take a humanitarian approach in this appeal. According to Mr. Biswas, if less than 2 lechas of land is given to the appellants, that will mean that they will have to leave that land because they will not be able to build their house there.
Mr. Ali has submitted that there are, in fact, no substantial questions of law in this appeal. According to Mr. Ali, it is an admitted fact in this appeal the appellants would get equal shares of the land. Mr. Ali has submitted that the size of the land that will devolve upon the appellants is not matter to be considered in this case.
Mr. Ali has relied upon a judgment of the Supreme Court that was delivered in Govindaraju v. Mariamman, (2005) 2 SCC 500. Paragraph 16 of the said judgment is quoted as under:
16.As per settled law, the scope of exercise of the jurisdiction by the High Court in second appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari case [(2001) 3 SCC 179] that 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 a “substantial” question of law it must be debatable, not previously settled by the law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the court. As to what would be the question of law “involving in the case” it was observed that 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 the court of fact and it must be necessary to decide that question of law for a just and proper decision between the parties.
I have considered the submissions made by the learned counsels of both sides.
I have sufficient reasons to hold that the questions of law formulated as substantial questions of law in this appeal cannot, in any way, be termed to be questions of law much less a substantial question of law. The questions formulated, in fact, are questions of facts and in a second appeal, this Court is not entitled to reappreciate the evidence. There are no substantial questions of law in this appeal.
Under the aforesaid circumstances, this court is of the opinion that the instant appeal has no merit at all and stands dismissed accordingly.
Send back the TCR.