JUDGMENT
Radha Mohan Prasad, J.
1. This appeal is directed against the judgment and decree in affirmance passed in Tital Appeal No. 19 of 1996/21 of 1998 by the 7th Additional District Judge, Munger arising out of Title Suit No. 57 of 1985.
2. Defendant 1st party are the appellants.
3. Plaintiff filed the suit for declaration of title over Schedule A property of the plaint and, further, sought for eviction of the defendants from the property mentioned in Schedule C of the plaint and also for mesne profit of Rs. 500 for wrongful possession of defendant 1st party over the portion of the suit property taken in delivery of possession in Title Execution Case No. 33/74 along with the cost of the suit.
4. It is not in dispute that this the property originally belonged to Udit Narayan Sah and his son Raj Kumar Sah, defendant 3rd party.
5. The admitted case of the parties is that one Udit Narayan Sah and his son Raj Kumar Sah were the owner of the entire suit house in which different tenants were in occupation and there was a delivery of possession on eviction in favour of the original owners against some tenants, namely, Nashim Bano and others. Consequently there was Title Execution Case No. 33 of 1974 instituted by the decree holders, who, according to the plaintiffs, transferred the entire suit property for Rs. 10,000 to Raj Kumari Devi on 28-9-1977 and put her in possession. She has also been mutated in the Municipality, vide order dated 2-7-1978 in Mutation Case No. 1/78-79. Thereafter said Raj Kumari Devi transferred the suit properties to the plaintiff for a sum of Rs. 15,000 through registered sale-deed dated 21-12-1978 which was executed in pursuance of an agreement dated 16-1-1978 and at that time Rs. 9,000 was paid in advance. In the Execution Case Raj Kumari Devi filed Misc. No. 60/78 for substitution as a decree holder. Contesting defendants also filed a petition for substitution claiming to have purchased the suit house, Schedule B of the plaint, for Rs. 18,000 from the original owner which on rejection gave rise to Misc. Case No. 4/81 in the execution case. Ultimately, they were disposed of by common order dated 8-5-1984 rejecting the prayer of the plaintiff and allowing the contesting defendants to be substituted. The aforesaid order was affirmed in the appeal. The plaintiff after getting knowledge of the alleged agreement and sale-deeds executed in favour of the contesting defendants challenged their validity in the suit.
6. The questions raised before the lower appellate Court were that (i) Since after the alleged purchase, prayer of the plaintiff for substitution as decree-holder has already been dismissed on contest and the order is upheld in appeal, the same operates as res judicata in any subsequent proceeding and, further, that (ii) undisputedly the suit house is Khas Mahal property and the claim of purchase and transfer of the same by the plaintiffs without appropriate permission of the competent authority is outright a nullity and since the defendants are admittedly in possession of the suit house cannot be removed unless the persons seeking their removal have better title than of them.
7. The lower appellate Court has considered the first question in paragraph 9 of the impugned judgment and has held that the Courts in regard to the earlier proceeding have simply considered the matter for limited purpose and confined it to the question of substitution in place of original decree-holder for the purposes of continuance of Execution Case No. 33 of 1974. According to the lower appellate Court, none of the Courts has gone into the complete question of title and decided the same and as such the question of res judicata does not arise despite the scope of principle of res judicata was widened in the year 1976.
8. As regards the second question regarding the lack of permission of purchase of Khas Mahal property, the lower appellate Court has fully dealt with it in paragraph 12 of its judgment. Lower appellate Court having found that though in the documents of the year 1919 there is mention of permission of Khas Mahal authorities, but undisputedly in no deed executed by Udit Narayan Sah or his son in favour of Raj Kumari Devi or the contesting defendants or by Raj Kumari Devi in favour of the plaintiff there is any whisper of such permission. The lower appellate Court has also considered that in Khas Mahal Manual there is nothing to show that any transfer by the lessee shall be nullity if transfer is effected without permission of the leaseholder, who has every right to deal with the lease hold. The maximum which can be done is that the Government shall determine the lease and come upon the land. The lower appellate Court has also found that Khas Mahal properties are transferable.
9. The same point has been reiterated before this Court by the learned Counsel for the appellants. Having considered the same, I do not find any infirmity in the said findings of the lower appellate Court, which is based on the evidence on record and also on law.
10. Learned Counsel for the appellants has ventured to submit that in second appeal this Court cannot dismiss the appeal without formulating substantial question of law. In support of this he has relied upon the decision of the Supreme Court in the case of Santosh
Hazari v. Purushottam Tiwari AIR 2001 S.C. 965.
11. I am unable to accept the said submission. Sub-section (4) of Section 100 of the C.P.C. itself provides that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question and subsection (5) provides that the appeal shall be heard on the question so formulated and not that where the Court does not find any substantial question of law involved and dismisses the appeal in limine, yet is required to formulate the substantial question of law. According to the decision of the Apex Court in the case of Santosh Hazariv. Purushottam Tiwari (Supra), 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. But when the Court finds no reason to interfere with the judgment of the lower appellate Court much less involving a substantial question of law as per the said decision of the Apex Court, there cannot be any question of formulating the substantial question of law.
12. On merits also, this Court does not find any infirmity in the reason given by the lower appellate Court for dismissal of the appeal. The only dispute between the two sets of transferor from Udit Narayan Sah and his son is that the plaintiffs, being the earlier purchaser, have better title than the contesting defendants and in no way lack of permission or sanction can come as a hurdle in the way of the plaintiff insofar as it relates to the present controversy, especially when the sale-deed executed in favour of defendants was also not on taking appropriate sanction or approvareven subsequent to their purchase from Khas Mahal authorities.
13. This Court, thus, does not find any merit in the appeal and the same is dismissed in limine.