In this appeal under Section 100 of the CPC, the High Court examined whether the non-registration of a document claiming rights under Section 53A of the Transfer of Property Act constitutes a substantial question of law to interfere with a decree for delivery of possession.
The instant appeal is dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010159822021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/98/2021
MD. TOYJAL HOQUE @ TOYZAL HOQUE AND 2 ORS. S/O- NABUR UDDIN, P.S. MANKACHAR, DIST.- DHUBRI, ASSAM, PIN783348.
2: LOKMAN SK @ LOKMAN HOQUE S/O- ROHIM UDDIN R/O- VILL.- BAUSHKATA P.O. KALAPANI P.S. MANKACHAR DIST.- DHUBRI ASSAM
3: ROHIM UDDIN S/O- LATE HOSEN ALI SK R/O- VILL.- BAUSHKATA P.O. KALAPANI P.S. MANKACHAR DIST.- DHUBRI ASSAM PIN- 783348
VERSUS
MD. NAJAT ALI AND 3 ORS. S/O- ROHIM UDDIN, R/O- VILL.- BAUSHKATA, P.O. KALAPANI, P.S. MANKACHAR, DIST.- DHUBRI, ASSAM
2:THE ASSTT. SETTLEMENT OFFICER MANKACHAR CIRCLE P.O. AND P.S. MANKACHAR DIST.- DHUBRI ASSAM
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HATSINGIMARI P.S. SOUTH SALMARA DIST.- DHUBRI ASSAM
4:THE STATE OF ASSAM REP. BY THE COLLECTOR OF DHUBRI P.O. AND DIST.- DHUBRI ASSA
Advocate for the Petitioner : MR. K K DEY
Advocate for the Respondent : GA, ASSAM
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 23-11-2021
Heard Mr. K K Dey, learned counsel appearing on behalf of the appellants.
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question of law’ as between the parties. A question of law which arises incidentally or collaterally having no bearing in the final outcome will not be a substantial question of law. Where there is a clear and settled enunciation of a “question of law”, it cannot be said that the case involves a ‘substantial question of law’. It is said that a substantial question of law arises when a question of law, which is not finally settled, arises for consideration in the case but this statement has to be understood in the correct perspective meaning thereby that where there is a clear enunciation of law and the Lower Court has followed or rigidly applied, such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law, but the Lower Court had ignored or misinterpreted or misapplied the same, and the correct application of the law as declared or enunciated by the Supreme Court or this Court would have led to a different decision, the appeal would involve a ‘substantial question of law’ as between the parties. Even where there is an enunciation of law by the Supreme Court or this Court and the same has been followed by the Lower Court, if the appellant is able to persuade this Court i.e. that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two different viewpoints, it can be said that a substantial question of law arises for consideration. In that view of the matter, there cannot, therefore be a straight jacket definition as to when a substantial question of law arises in a case, it shall depend on the facts of each case along with the decision rendered by the Courts below.
“12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means
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the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
..[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
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substantial question of law.”
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committed in the outcome of the litigation whereby there had been a decree for delivery of possession.
“[1(A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A].”
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the non-registration of an unregistered transfer document negates the defense of part performance under Section 53A of the Transfer of Property Act.
Whether a substantial question of law exists for adjudication in a second appeal under Section 100 of the CPC regarding appreciability of evidence.
Whether the lower courts erred in law by not appreciating Exhibit B to support the appellants' claim under Section 53A of the Transfer of Property Act.
Colour shows how this judgement treated each authority
Santosh Hazari Vs. Purushottam TiwariReferred¶25
Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRs reported in (2001) 3 SCC 179 · Who else cites this
Guran Ditta & Anr. Vs. T. Ram DittaReferred¶27
Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172 · Who else cites this
Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co. Ltd.Referred¶29
Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549 · Who else cites this
Rimmalapudi Subba Rao Vs. Noony VeerajuReferred¶29
Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264 · Who else cites this
Deputy Commr., Hardoi Vs. Rama Krishna NarainReferred¶34
Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors., AIR 1953 SC 521 · Who else cites this
3 provisions across 3 enactments
Md. Toyjal Hoque @ Toyzal Hoque and 2 Ors.
Md. Najat Ali and 3 Ors.
The Asstt. Settlement Officer Mankachar Circle
The Sub-Registrar
The State of Assam Rep. by the Collector of Dhubri
Devashis Baruah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
