LANKESWAR MALAKAR Vs. R DEKA

JUDGEMENT

(1.) 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.

(2.) 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 ?

(3.) 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 under Section 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 Code of Civil Procedure does not permit fresh appreciation of evidence.