Tripura High Court: In the present case, a second appeal was filed under Section 100 of the Civil Procedure Code, 1908 (‘CPC’), challenging the judgment and order dated 27-07-2023 delivered by Additional District Judge, Khowai, Tripura. A Single Judge Bench of Biswajit Palit, J., held that the appeal filed by appellant under Section 100 of CPC was not maintainable and the same was liable to be dismissed as there was no material in the present case to formulate any substantial question of law.
Background
Appellant had earlier filed a petition under Order XXI, Rule 97–101 of CPC before the Court of Civil Judge, Senior Division, Khowai in connection with a case which arose out of a suit filed by Respondent 7 (decree holder in original plaint) claiming adverse possession over the suit land on the ground that appellant was not made party in the suit filed by Respondent 13 (judgment debtor in original plaint). But the Court below did not consider the evidence on record of appellant and dismissed the petition.
Thereafter, appellant filed an appeal before the Court of District Judge under Order XXI, Rule 103 of CPC, Khowai, which was later transferred to the Court of Additional District Judge, Khowai. The First Appellate Court dismissed the appeal affirming the judgment and order of Civil Judge, Senior Division with modification of exonerating the payment of cost of Rs 20,000 on the ground that the appeal was a statutory right of appellant. Appellant had preferred this appeal on the ground that both the Courts below did not consider the long-standing possession of appellant nor they appreciated the evidence on record and thus, urged for allowing the present appeal by setting aside the judgment of the First Appellate Court and to pass an order for restoration of possession of the suit land, i.e., decreetal land, to her.
Counsel for respondents submitted that the present appeal was not maintainable as under Section 100 of CPC, no decree was passed by the First Appellate Court, so, the present appeal was barred by law.
Analysis, Law, and Decision
The issues for consideration before the Court were:
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Whether the appeal filed by appellant was maintainable under Section 100 of CPC?
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Whether there was any substantial question of law to be formulated in the present appeal?
The Court, to decide whether the order passed under Order XXI, Rule 103 of CPC was a decree or not, relied on Asgar v. Mohan Varma, (2020) 16 SCC 230; and Sameer Singh v. Abdul Rab, (2015) 1 SCC 379, and opined that the order passed under Order XXI, Rule 103 be treated as a decree which was subjected to an appeal. The Court also opined that there was scope for preferring appeal under Section 100 of CPC, if there was material to raise substantial question of law.
Thus, the Court stated that the contention that the present appeal was not maintainable under Section 100 of CPC was not correct and could not be accepted, rather the appeal filed by appellant was maintainable under Section 100 of CPC before the Court as the order of Additional District Judge was a decree.
The Court relied on Nazir Mohamed v. J. Kamala, (2020) 19 SCC 57 (‘Nazir Mohamed Case’); and M. Radheshyamlal v. V. Sandhya, 2024 SCC OnLine SC 318, and stated that appellant had totally failed to establish her right of adverse possession of the decreetal land. Thus, both the Court below, i..e, the Executing Court and the First Appellate Court rightly turned down appellant’s claim in respect of the suit land. Further, in the application filed by appellant before the Executing Court, the quantum of land was shown as 14 ½ gandas in the schedule but factually it should be 0.030 acres and there was no explanation in this regard from appellant’s side.
The Court stated that in view of Nazir Mohamed Case (supra), there was no material in the present case to formulate any substantial question of law. Thus, the Court held that the appeal filed by appellant under Section 100 of CPC was not maintainable and the same was liable to be dismissed. The Court further affirmed the judgment/order delivered by the Additional District Judge.
[Haridasi Paul v. Uma Deb, 2024 SCC OnLine Tri 473, decided on 22-07-2024]
Advocates who appeared in this case :
For the Appellant: D. Deb, D. Debnath, Advocates
For the Respondents: Sankar Deb, Senior Advocate; R. Dasgupta, Advocate