Usman Gani Vs Bikash Baroi and Anr.

2] This second appeal is directed against the judgment and decree dated 16.08.2025 passed by the learned Civil Judge (Sr. Divn.), Sribhumi (hereinafter referred to as the “first appellate court”) in Title Appeal No. 16/2024, whereby the appeal preferred by the appellant was dismissed, affirming the judgment dated 10.05.2024 and decree dated 13.05.2024 passed by the learned Civil Judge (Jr. Divn.) No. 1, Karimganj (hereinafter referred to as the “trial court”) in Title Suit No. 187/2011, whereby the suit instituted by the respondent/plaintiff was decreed.

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3] The respondent/plaintiff instituted the aforesaid suit seeking recovery of possession and eviction of the appellant/principal defendant along with consequential reliefs including permanent injunction. The appellant/principal defendant filed written statement and the defendant No. 2 also filed a counterclaim. Upon the pleadings of the parties, the trial court framed the following issues: -

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“I. Whether the suit has cause of action?

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II. Whether the suit is maintainable?

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III. Whether the suit is bad for defect of parties?

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IV. Whether the plaintiff has right, title, interest and possession in respect of the suit premises?

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V. Whether the plaintiff is entitled to any relief(s) in the suit?”

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Upon appreciation of the evidence adduced by the parties and upon conclusion of the trial, the learned trial court held that the respondent/plaintiff had right, interest and possession over the suit premises and was entitled to recover vacant possession thereof by evicting the appellant/principal defendant. Consequently, the counterclaim was dismissed and the suit was partly decreed. The learned trial court further held that the respondent/plaintiff was in permissive possession over the suit land and had right and interest therein. The judgment and decree of the trial court having been affirmed by the first appellate court, the instant second appeal has been preferred.

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4] This Court admitted the instant appeal by formulating the following substantial question of law: -

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“Whether the judgment and decree passed by the first appellate court and the trial court are perverse to the extent that while arriving at the conclusion, the evidence tendered by the defendant No. 1 (appellant herein) was not considered?”

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5] Mr. F. U. Barbhuiyan, learned counsel appearing for the appellant, submits that the counterclaim of the appellant/principal defendant was founded upon an agreement allegedly executed between the appellant/principal defendant and the husband of the respondent/plaintiff, whereby the suit land was purchased by the appellant from the husband of the respondent/plaintiff. He further submits that the respondent/plaintiff was never a permissive occupier of the suit land and that the possession certificate exhibited as Exhibit-1 was never issued by the respondent/defendant No. 2.

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5.1] It is further submitted that the bilateral agreement marked as Exhibit-2, relied upon by the respondent/plaintiff to establish tenancy, is a fabricated and manufactured document and that the appellant/principal defendant never executed the said agreement. According to the learned counsel, the evidence adduced by the appellant/principal defendant has not been properly considered by the trial court and the first appellate court and, therefore, the impugned judgments suffer from perversity warranting interference by this Court.

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6] Per contra, Mr. S. Dutta, learned counsel appearing for the respondents, submits that the instant second appeal does not involve any substantial question of law. According to him,

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the question formulated at the time of admission essentially invites reappreciation of evidence and reassessment of factual findings, which is wholly impermissible while exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”). In support of the aforesaid contention, learned counsel has placed reliance upon the decision of the Apex Court in Russi Fisheries P. Ltd. and Another vs. Bhavna Seth & Ors ., in Civil Appeal No. 109/2010.

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6.1] Learned counsel for the respondents further submits that the alleged sale agreement exhibited by the appellant as Exhibit-A is an unregistered document and is inadmissible in evidence in view of Section 54 of the Transfer of Property Act, 1882 (hereinafter referred to as the “Property Act”) read with Section 17(1A) of the Registration Act, 1908 (hereinafter referred to as the “Registration Act”). He further submits that although the respondent/defendant No. 2 in its written statement and counterclaim denied issuance of permissive possession certificate in favour of the respondent/plaintiff, the said defendant never entered the witness box nor adduced any evidence in support of such plea. In support of the said submission and by referring to Section 114 of the Indian Evidence Act, 1872, learned counsel relies upon paragraph 41 of the decision in Russi Fisheries P. Ltd. (supra) , which reads as under: -

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“41. Now, the crucial issue which remains is about the effect of non-appearance of the plaintiff in the witness box to prove his plaint case. It is an admitted position that the plaintiff himself has not entered the witness

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box and has not offered himself to be cross-examined. In such a situation, a presumption can always be drawn against him that the case, as pleaded by him, is not correct. In this connection, a reference can be made to the decision of this Court in the case of Vidhyadhar vs Manikrao and Another , which lays down that where a party does not appear in the witness box, a presumption would arise that the case set up by him is not correct. This Court in laying down as aforesaid has referred to various decisions of the High Court. The decisions of the High Court are also to the effect that when a party fails to appear as a witness, it gives rise to an adverse inference and nothing more.”

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7] I have considered the submissions advanced by the learned counsel for the parties and have carefully perused the materials available on record.

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8] At the outset, it may be noted that under Section 100 of the CPC, a second appeal shall lie only where the high court is satisfied that the case involves a substantial question of law. The jurisdiction under Section 100 CPC is thus confined to examination of substantial questions of law and does not extend to reassessment or reappreciation of evidence merely because another view on facts is possible. In Santosh Hazari vs. Purushottam Tiwari , reported in (2001) 3 SCC 179 , the Apex Court held as under: -

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“14. 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 „substantial‟ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law „involving in the case‟ there must be first a

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foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

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9] Further, in Hero Vinoth vs. Seshammal , reported in (2006) 5 SCC 545 , the Apex Court held that a substantial question of law would arise only where the findings are perverse, based on no evidence, where material evidence has been ignored, or where settled legal principles have been wrongly applied.

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10] A reading of the aforesaid judgments makes it abundantly clear that a substantial question of law must arise from the pleadings and findings recorded by the courts below. Such question must be debatable, not previously settled by law, and must materially affect the rights of the parties. It is equally well settled that a second appeal under Section 100 CPC cannot be converted into a third round of factual adjudication. Mere disagreement with appreciation of evidence or an attempt to substitute one possible view for another does not give rise to a substantial question of law. Unless the findings recorded by the courts below are shown to be perverse, based on no evidence, rendered by ignoring

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material evidence, or contrary to settled legal principles, interference in second appeal is wholly unwarranted.

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11] The Apex Court in Russi Fisheries P. Ltd. (supra) has categorically held that findings of fact, however erroneous they may appear, cannot be reopened in a second appeal unless the case involves a substantial question of law. The High Court, while exercising jurisdiction under Section 100 CPC, cannot undertake reappreciation of oral and documentary evidence merely because another view may also be possible. The relevant paragraphs of the said judgment read as under: -

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“31. It is settled in law that the findings of fact howsoever erroneous, cannot be reopened and disturbed in second appeal which is required to be adjudicated only upon the substantial question of law, if any, arising therein. Thus, the argument that the High Court in second appeal ought to have examined the evidence to ensure the correctness of the findings of the First Appellate Court has no legs to stand and fails.

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32. Long back in 1981, three judges of this Court in the case of Bholaram vs. Ameerchand had ruled that even if findings of facts by courts below are wrong or grossly inexcusable that by itself would not entitle the High Court to interfere under Section 100 CPC in the absence of clear error of law. A similar view was reiterated in Madhavan Nair vs. Bhaskar Pillai (Dead) by Lrs ., wherein it has been laid down that even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

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33. In Kashibai w/o Lachiram and Another vs. Parwatibai w/o Lachiram and others , a similar proposition of law was laid down by this Court and it was held that the High Court cannot reappreciate the

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evidence and interfere with the findings of facts unless a substantial question of law or a question of law duly formulated is to be decided. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

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34. Similar is the situation in the case at hand. The High Court has not found any substantial question of law or a question of law worth consideration in the second appeal and, therefore, there was no occasion for it to have reappreciated the evidence so as to come to a different conclusion.

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35. Again, in Kulwant Kaur and Others vs. Gurdial Singh Mann (Dead) by Lrs and Others , it was emphasized that the fact remains that in a second appeal, a finding of fact, even if erroneous, will not be disturbed unless it is found that it stands vitiated for want of perversity. No such case for interference has been made out in the present case.”

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12] Keeping the aforesaid settled principles in view, this Court is required to examine whether the concurrent findings recorded by the learned trial court and affirmed by the learned first appellate court suffer from such perversity or legal infirmity so as to give rise to any substantial question of law warranting interference under Section 100 CPC.

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13] A careful examination of the materials available on record indicates that the respondent/plaintiff specifically pleaded that she along with her family members had been continuously residing over the suit premises and maintaining possession thereof with the knowledge of the respondent/defendant No. 2. It was specifically pleaded that the respondent/defendant No. 2 had issued a possession certificate in favour of the respondent/plaintiff permitting her

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to continue in occupation of the quarter after the demise of her husband, who had been working in the tea estate. It is the further case of the respondent/plaintiff that while she was in occupation and possession of the suit premises, the appellant/principal defendant approached her for tenancy in respect of the suit premises for carrying on business and accordingly a bilateral agreement dated 05.10.2001 was executed between the parties, stipulating that the tenancy would continue for a period of 7 years and 10 months with monthly rent fixed at Rs. 500/-. Upon expiry of the tenancy period, the appellant/principal defendant having failed to vacate the suit premises, the suit came to be instituted.

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14] Upon appreciation of the evidence, particularly the evidence of PW-1, namely the respondent/plaintiff herself, PW-3, the attesting witness to Exhibit-2, and PW-4, the scribe of the document, the learned trial court held that Exhibit-2 stood duly proved.

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15] The learned first appellate court, upon reappreciation of the entire evidence on record, concurred with the findings recorded by the learned trial court and held as under: -

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“48) The pleadings reveal that the plaintiff's family had been living on the suit land for decades. Her husband was a workers' representative in the 1980s, and her father-in-law, Sriprasad Baroi, is also said to have resided on the same premises. After the death of her husband in 2010, the plaintiff continued to live in the same house, claiming possession by inheritance and continued use. The plaintiff's asserted that she is a permissive occupier of the suit land. She contends that she was allowed to occupy the land by the Manager of Gombhira Tea Estate, and in support of this assertion, she relies on a possession certificate issued in 1998, marked as Exhibit-1.

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49) It is not disputed that the suit land is situated within the premises of Gombhira Tea Garden. The plaintiff has arrayed the Gombhira Tea Estate as proforma defendant No.2, and there is no relief claimed against the said tea estate. The estate, however, through its pleadings in the counter-claim, denies issuing the possession certificate and characterises it as fabricated. The pro-forma defendant further asserts that the plaintiff's husband, Hangsha Narayan Baroi, was a workers' representative of the garden. 50) Moreover, the pro-forma defendant denies issuing such a certificate, it neither cross-examined the plaintiff's witnesses nor brought any rebuttal evidence. As per settled principles of evidence, mere denial without substantiating material does not displace documentary evidence.

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51) Though, in the instant suit, the defendant No. 1 also claimed ownership through an unregistered sale deed executed allegedly by the plaintiff's husband but the question is that whether plaintiffs husband had the authority to sell the suit premises to defendant No. 1?

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52) On the contrary, the defendant as DW1 claimed that he purchased the suit land from Hangsha Narayan Baroi, the plaintiff's husband, by way of an unregistered sale deed (Exhibit-A). However, the suit land being part of Tea Estate land, and with no document showing that the plaintiff‟s husband had title or transferable rights over the land, the sale deed carries no legal weight. Moreover, Exhibit-A being an unregistered instrument cannot confer title in respect of immovable property under Section 54 of the Transfer of Property Act and Section 17 of the Registration Act.

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53) The plaintiff contends that the principal defendant was inducted as a monthly tenant under a bilateral tenancy agreement dated 05-10-2001 (Exhibit-2), which was to run from 01-10-2001 for a period of 7 years and 10 months, with monthly rent fixed at Rs. 500/-. Rs. 200/- was to be paid monthly, and the remaining amount was to be adjusted against an advance sum of Rs. 28,185/-

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54) Exhibit-2 is supported by attesting witnesses. PW3 and PW4 have both affirmed the execution of the agreement. PW4, the scribe, specifically stated that the agreement was executed by both parties in his presence, and that thumb impressions and signatures were duly obtained. The evidence of these witnesses remains unshaken in cross-examination, and no contradiction emerges to discredit Exhibit-2.Their

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evidence corroborates the plaintiff's version and remains unshaken in cross-examination. Therefore, the execution of Exhibit-2 stands duly proved.

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55) In contrast, the defendant in his deposition as DW1 admitted of paying rent to the plaintiff's husband and father-in-law, which establishes a landlordtenant relationship. Further, the testimonies of DW2 and DW3 reveal his tenancy status. DW1 also failed to provide any credible evidence to prove his claim of ownership. His reliance on Exhibit-A is untenable in law. The revenue receipts and electricity bills produced by the defendant, marked as Exhibits B to S(10), merely prove possession and not title.

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56) Therefore, on the basis of the evidence and legal principles, it can be concluded that the plaintiff has successfully established her permissive possession over the suit land. The agreement marked as Exhibit-2 further supports her claim of having interest and possession.

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57) In light of the above, the court rightly concluded that the plaintiff is in possession of the suit land with the authority of the original owner, i.e., the Tea Estate. Though not the owner in legal title, she holds a possessory right.

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58) In view of the above, it is concluded that the counter-claimant has failed to establish any legal right, title, or interest over the 2 kathas 10 chataks of land in dag No. 927. Thus, the issue are answered partly in favour of the plaintiff, holding that she has right, interest, and possession over the suit land by virtue of permissive possession.

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ISSUE No. IX:- Whether Agreement deed executed on 05- 10-2001 is illegal, fraudulent and void ab initio ?

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59) The counter-claimant has alleged that the agreement deed dated 05-10-2001, marked as Exhibit-2, is illegal, fraudulent, and void ab initio. The agreement in question, Exhibit-2, is a tenancy agreement purportedly executed between the plaintiff Sudamia Baroi and the principal defendant Usman Goni. As per the terms of this agreement, the defendant was inducted as a tenant in the suit premises for a period of seven years and ten months beginning from 01-10-2001. The agreement contains stipulations regarding the payment of monthly rent and adjustments against an advance amount paid by the defendant.

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60) The plaintiff, while deposing as PW1, reiterated the facts stated in the plaint and specifically relied on Exhibit-2 to prove the tenancy relationship. The execution of the agreement was supported by attesting witness Sudarshan Hazam (PW3) and the scribe of the document Ananta Lal Yadav (PW4). Both witnesses confirmed that the document was executed in their presence and that signatures/thumb impressions of both parties were affixed voluntarily. The defendant, though cross-examined the PWs at length, failed to elicit any material contradiction or raise doubts about the execution or contents of the agreement.

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61) On the contrary, the counter-claimant's allegation that the agreement is fraudulent and void ab initio is not substantiated by any cogent evidence. The counter-claimant has not produced any material to prove fraud, misrepresentation. A document is presumed to be valid unless proved otherwise. Under Sections 101 and 102 of the Indian Evidence Act, the burden to prove that the agreement is void, fraudulent, or illegal lies on the party who alleges it. In the present case, that burden rests upon the counterclaimant, who has failed to discharge it.

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62) In light of the foregoing analysis and upon appreciation of the oral and documentary evidence adduced by the parties, it is found that the tenancy agreement dated 05-10-2001 was lawfully executed and is neither fraudulent nor void. Accordingly, the issue is decided in the negative and against the counter-claimant.”

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16] From a careful reading of the judgments of both the trial court and the first appellate court, it is evident that the evidence adduced by the appellant/principal defendant was duly considered and discussed. The learned trial court as well as the learned first appellate court examined the oral testimony of DWs, the unregistered sale deed marked as Exhibit-A, the revenue receipts, electricity bills and other documents relied upon by the appellant before recording concurrent findings against him. Both the courts concurrently held that Exhibit-A, being an unregistered document relating

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to transfer of immovable property, was in admissible for conferring title in view of Section 54 of the Property Act, read with Section 17(1A) of the Registration Act. Simultaneously, both the trial court and the first appellate court found that Exhibit-2 stood duly proved through the evidence of the attesting witness and the scribe and that the appellant/principal defendant was inducted as a tenant under the respondent/plaintiff.

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17] The contention advanced on behalf of the appellant that his evidence was not considered is, therefore, factually untenable. Mere non-acceptance of the defence version cannot be equated with non-consideration of evidence. Once the trial court and the first appellate court have considered the materials available on record and arrived at a plausible conclusion based upon appreciation of evidence, this Court, while exercising jurisdiction under Section 100 CPC, cannot reassess the sufficiency or adequacy of such appreciation. The foundation of the counterclaim of the appellant/principal defendant was the alleged purchase of the suit land from the husband of the respondent/plaintiff on the basis of Exhibit-A. Both the courts below concurrently found that the alleged executant of Exhibit-A himself had no transferable right over the suit land, the land admittedly belonging to the Tea Estate. Furthermore, Exhibit-A being an unregistered document relating to transfer of immovable property, no right, title or interest could pass thereunder in view of Section 54 of the Property Act read with Section 17(1A) of the Registration Act. Consequently, the dismissal of the counterclaim was a natural

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corollary of the concurrent findings recorded by the trial court and the first appellate court.

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18] This Court is unable to hold that the question formulated at the time of admission constitutes a substantial question of law within the meaning of Section 100 CPC. The issue as to whether the evidence adduced by the appellant was properly appreciated is essentially a question relating to factual adjudication and appreciation of evidence. The same, by itself, does not give rise to a substantial question of law. The findings concurrently recorded by the learned trial court and affirmed by the learned first appellate court are based upon appreciation of oral and documentary evidence available on record. No perversity, misreading of evidence, exclusion of material evidence, or application of any erroneous legal principle has been demonstrated by the appellant. The conclusions reached by the trial court and the first appellate court are plausible and supported by the evidence on record.

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19] The present appeal, in essence, is an attempt to invite this Court to reappreciate the evidence and substitute concurrent findings of fact with another possible view, which is wholly impermissible within the limited jurisdiction conferred under Section 100 CPC. No substantial question of law survives for consideration. Consequently, the appeal is devoid of merit.

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20] Accordingly, the instant second appeal stands dismissed. The concurrent findings recorded by the learned trial court and affirmed by the learned first appellate court do

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not warrant interference in exercise of jurisdiction under Section 100 CPC. No order as to costs.

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21] Return the trial court records.

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JUDGE

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Comparing Assistant

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Digitally signed Pranab by Pranab Chandra Das Date: Chand 2026.05.08 ra Das 15:49:04 +05'30'