Page No.# 1/22 GAHC010096702023 2026:GAU-AS:7524 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/79/2023 ON THE DEATH OF MOFIDUL HOQUE, HIS LEGAL HEIRS NAMELY- 1.1: MEHSHID HAQUE D/O LATE MODIFUL HAQUE RESIDENT OF K.B ROAD WARD NO. 13 PO AND PS LAKHIMPUR DIST LAKHIMPUR ASSAM 787001 1.2: SHADABUL HAQUE S/O LATE MODIFUL HAQUE RESIDENT OF K.B ROAD WARD NO. 13 PO AND PS LAKHIMPUR DIST LAKHIMPUR ASSAM 78700 VERSUS HANIF ALI AND 6 ORS. S/O LATE ADOM ALI, RESIDENT OF VILLAGE KASIKATA BAGAN GAON, PO AND PS BIHPURIA, DIST LAKHIMPUR, ASSAM 784161 2:MD. HAJROT ALI S/O LATE ADOM ALI RESIDENT OF VILLAGE KASIKATA BAGAN GAON PO AND PS BIHPURIA Page No.# 2/22 DIST LAKHIMPUR ASSAM 784161 3:MD. MATIN ALI S/O LATE ADOM ALI RESIDENT OF VILLAGE KASIKATA BAGAN GAON PO AND PS BIHPURIA DIST LAKHIMPUR ASSAM 784161 4:MD. MOIJUT ALI S/O LATE ABDUL SAMAD RESIDENT OF VILLAGE KASIKATA BAGAN GAON PO AND PS BIHPURIA DIST LAKHIMPUR ASSAM 784161 5:MD. MAJID ALI S/O LATE ABDUL SAMAD RESIDENT OF VILLAGE KASIKATA BAGAN GAON PO AND PS BIHPURIA DIST LAKHIMPUR ASSAM 784161 6:MD. AHED ALI S/O LATE KASOM ALI RESIDENT OF VILLAGE KASIKATA BAGAN GAON PO AND PS BIHPURIA DIST LAKHIMPUR ASSAM 784161 7:MD. MUJAM ALI S/O LATE ABDUL RAHMAN RESIDENT OF VILLAGE KASIKATA BAGAN GAON PO AND PS BIHPURIA DIST LAKHIMPUR ASSAM 78416 Page No.# 3/22 - B e f o r e- HON’BLE MR. JUSTICE ROBIN PHUKAN Advocates for the appellant : Mr. T. H. Hazarika, Advocate for the respondents : Dr. P. K. Goswami, Date of which Judgment is reserved : 05.03.2026 Date of pronouncement of Judgment : 29.05.2026 Whether the pronouncement is of the : N/A operative part of the Judgment? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) Heard Mr. T. H. Hazarika, learned counsel for the appellant and Dr. P. K. Goswami, learned counsel for the respondents. 2. In this appeal, under Section 100 of the Code of Civil Procedure, the appellant, namely, Md. Mofidul Hoque, has challenged the Judgment, dated 02.02.2023, and the Decree, dated 09.02.2023, passed by the learned Additional District Judge (F.T.C.), Lakhimpur, North Lakhimpur, Assam, in Title Appeal No. 01/2021. 3. It is to be noted here that vide impugned Judgment, dated 02.02.2023, and Page No.# 4/22 Decree, dated 09.02.2023, the learned Additional District Judge (F.T.C.), Lakhimpur, North Lakhimpur, Assam (hereinafter, learned First Appellate Court), has partly allowed the appeal and dismissed the counter claim preferred by him as defendant No. 1, and thereby, affirmed the Judgment, dated 16.03.2020 and also, the Decree, dated 22.03.2020, in T.S. No. 17/2016, to the extent indicated above. 4. For the sake of convenience, and also to avoid confusion, the parties will be referred to by their original status in the suit, before the learned trial court. Background facts :- 5. The background facts, leading to filing of the present appeal, are briefly stated as under - “The plaintiffs’ case is that their predecessors, namely, Adom Ali, Amud Ali, Ibrahim Ali, Abdul Rahman were recorded tenants under Bajlul Haque, the father of the defendant No. 1. A ‘Rioty Kutcha Khatian’ was also issued in their favour by the revenue authority in the year 1967, as tenants, under the father of defendant No.1. Since then the predecessor in interest of the plaintiffs’ had obtained Khatian No. 9 of Kachikata Bagan, under Bihpuria Mouza, was issued in favour of the predecessors of the plaintiffs, as per Assam (Temporarily settled Areas) Tenancy Act 1971, in respect of the suit land, described in the schedule to the plaint. Thus, being agriculturists, the predecessors of the plaintiffs, used the suit land as occupancy tenants and delivered one fifth share of the crops to the owner as rent, for their occupation. The predecessors of the plaintiffs, by dint of their status as tenants, had been occupying their respective shares and also residing over their shares by constructing houses and living there on with their families, till their death. Page No.# 5/22 Thereafter, the plaintiffs herein had inherited the suit land and in the meantime, the father of the defendant No. 1 also suffered demise and then defendant No. 1 became the owner of the suit property and the plaintiffs have been regularly paying their rent, i.e., one fifth share of crops or its value, to the defendant No. 1, since the date of death of his father. Thereafter, suddenly, the defendant No. 1 tried to evict the plaintiffs by threatening them and for that purpose; he had also lodged a false case against the plaintiff Nos. 1, 3, 4 and 12, alleging that they attempted to occupy the suit land illegally. Then, being aggrieved, the plaintiffs had instituted one Title Suit, being T.S. No. 17/2016, before the Court of the learned Civil Judge, Lakhimpur, North Lakhimpur, Assam, for a decree, declaring their right, title and interest and to confirm their possession over the suit land and also for permanent injunction restraining the defendant No. 1, and also upon all the defendants. The defendant No. 1 has contested the suit by filing written statement, wherein he had taken a stand that the suit is not maintainable, there is no cause of action and the suit is bad for non-joinder of necessary parties; and his father had developed Kashikata Tea Estate. But, due to some unforeseen reason, the tea estate could not be continued as planned, for which his father had allowed some people to cultivate some portion of the land and they continued to cultivate by giving due share of crops to his father and after the death of his father, to him. He allowed the plaintiffs only to cultivate the land and not to construct houses over the land and thereby, he had denied the status of the plaintiffs as occupancy tenant and he had admitted that the father of the plaintiffs were tenants under his father. He had also not disputed the claim of Page No.# 6/22 the plaintiffs that their fathers were occupancy tenants under his father. Further case of the defendant No. 1 is that the Government had acquired 486 Bighas 2 kathas 12 lessas of land, out of the total land of Kackikata tea estate, as ceiling surplus land and that the plaintiffs are occupying his large chunk of ceiling surplus land and have their permanent dwelling houses in addition to cultivation of various crops at different season. It is the further contention of the defendant No. 1 that from the year 2012, the plaintiffs stopped paying one fifth share of the crops in respect of the land described in schedules A, B, C, D, E, F and G, thereby causing huge loss to him, and in spite of his repeated demand, for which they had lost the status of tenant. The defendant No.1 further contended that plaintiff Nos.1, 2, 3 had stopped paying the one fifth share of the crops to him in respect of the land described in schedule A, and the plaintiff Nos. 4 and 5 stopped giving the crops in respect of the land described in schedule B and the defendant Nos. 4 and 5 encroached the land described in schedule C and D forcibly, in the year 2014. Earlier the schedule C and D land was cultivated by one Mohuruddin and Qurban Munchi as tenants of the defendant No. 1 and both of them had left the land 15 years back, by delivering possession of the same to the defendant No. 1. Since then, the defendant No. 1 engaged cultivators to cultivate the land, till it was dispossessed. The plaintiff No. 6 stopped giving share of the crop in respect of schedule E land. The plaintiff Nos. 7 and 8 stopped giving their share of crops in respect of schedule F land and the plaintiff Nos. 9 and 10 stopped giving share of crops in respect of land described in schedule G and H, respectively, and therefore, the defendant No. 1 had put up counter-claim, seeking the following reliefs: i) Declaration that the plaintiffs are ceased to be tenants of Page No.# 7/22 defendant No. 1, since 2012; ii) For evicting the plaintiffs Nos. 1, 2 and 3 from the land described in schedule A and for realization of Rs. 57,600/- from them; iii) For evicting the plaintiffs Nos. 4 & 5 from the land described in schedule 'B', 'C' and 'D and for realization of a sum of Rs. 2,61,600/- from them; iv) For evicting the plaintiff no. 6 from the land described in schedule E and for realization of a sum of Rs.9,600/- from him; v) For evicting the plaintiffs Nos. 7 & 8 from the land described in schedule F and for realization of a sum of Rs.21,600/- from them; vi) For evicting the plaintiff No. 9 from the land described in schedule G and for realization of a sum of Rs. 16,800/- from him; vii) For evicting the plaintiff No. 10 from the land described in schedule H and for realization of Rs.16,800/- from him; viii) For delivering possession of the schedule land to the defendant no. 1 by demolishing all the structures erected thereon; and ix) Also, for granting permanent injunction. Thereafter, the plaintiff Nos. 1, 2, 3, 4, 5, 9 and 10 have filed written statement against the counter claim and challenged the case of the defendant No. 1, to the effect that plaintiffs defaulted in paying rent to him and contended inter-alia that the counter claim is not maintainable and liable to be dismissed. It is to be noted here that the upon the aforementioned pleadings, the learned Trial Court has framed the following issues- (i) Whether the suit is maintainable? (ii) Whether the plaintiffs are occupancy tenants under the Page No.# 8/22 defendant No. 1 in respect of the suit land? (iii) Whether the plaintiffs have right, title and interest over the suit land? (iv) Whether the counter claim of the defendant No. 1 is maintainable? (v) Whether in the year 2012 the plaintiffs lost the status of tenant for non-payment of rent as alleged by the defendant No. 1? (vi) Whether the plaintiffs are entitled to the decree as prayed for? (vii) Whether the defendant No.1 is entitled to the decree as prayed for by way of counter claim? (viii) To what other relief/reliefs the parties are entitled? Thereafter, by examining the five witnesses of the plaintiff and the documents exhibited by them and also, by examining two witnesses of the defendant No. 1 and the documents exhibited by him, the learned Trial Court has decided the Issue No. 1 & 4 in affirmative, Issue No. 2 in favour of the plaintiff, Issue No. 3 partly in favour of the plaintiff, Issue No. 5 in negative and Issue Nos. 6, 7 & 8 in favour of the plaintiff and thereafter, decreed the suit on contest with cost, declaring plaintiff’s right to use as an occupancy tenant over the suit and confirmed their possession over the suit land as well as permanent injunction. Being aggrieved, the defendant had preferred an appeal, being Title Appeal No. 01/2021, before the Court of the learned Additional District Judge (F.T.C.), Lakhimpur, North Lakhimpur. And thereafter, vide impugned Judgment, dated 02.02.2023 and Decree, dated 09.02.2023, the learned Page No.# 9/22 First Appellate Court had affirmed the Judgment and Decree, so passed by the learned Trial Court and it has held that the plaintiffs do not have the title over the suit land, as the same is owned by the defendant No. 1 and also, affirmed dismissal of the counter claim filed by the defendant No. 1. Being aggrieved, the appellant has approached this Court, by filing the present appeal under Section 100 of the Code of Civil Procedure, which was admitted for hearing on the following substantial question of law- (I) Whether occupancy tenant is mandatorily liable to pay rent/proceeds out of the land so used belonging to the landlord?’ Submissions of learned counsel for the appellant:- 6. Mr. Hazarika, learned counsel for the appellant/defendant No. 1 submits that the plaintiffs had instituted the suit under the Assam (Temporarily settled Areas) Tenancy Act 1971, and the defendant has also filed counter claim for recovery of the possession. Of the suit land. Referring to Sections 23, 24 & 25 of the Assam (Temporarily settled Areas) Tenancy Act 1971, Mr. Hazarika submits that their names have been reflected in the final Khatian and that the learned First Appellate Court has rightly observed that the plaintiffs could not produce any evidence for claiming their ownership over the land. 6.1. Mr. Hazarika further submits that the plaintiffs have acknowledged that they are tenants and they have failed to prove that they paid rent to the defendant and on such ground; they are liable to be evicted, even if their names are entered in the Khatian. 6.2. Mr. Hazarika also submits that as provided under Section 37 of the Act, they have no document to show that the plaintiffs had paid rent. However, Mr. Page No.# 10/22 Hazarika submits that till 2012, they have paid their rent, but after 2012, they have stopped payment of their rent and that the onus is upon the plaintiffs to prove that they have paid the rent to the landlord. 6.3. Referring to paragraph No. 29 of the Judgment of the learned First Appellate Court, Mr. Hazarika submits that the learned First Appellate Court had recorded a finding that due to old age and ailment, the appellant herein, could not initiate any legal action against the plaintiff in the year 2012, and the said explanation is not plausible and acceptable as he failed to produce any document, in support of such contention, and it had held that the defendant No. 1 has fully participated in the trial and even adduced evidence and as such, it is difficult to believe that due to old age and ailment in the year 2012, he had failed to initiate any legal action. Mr. Hazarika further submits that the DW-1 has admitted that when the plaintiffs had constructed house under Indira Awaas Yojna, it did not take any legal action against them, and this finding of the learned First Appellate Court, according to Mr. Hazarika, is perverse. 6.4. Referring to Section 38 of the Act, Mr. Hazarika submits that it is not the case of the plaintiffs’ that they are paying rent and that they had deposited the rent with the Revenue Officer, under the said section. He also submits that as required by Section 58(4) of the Act, the plaintiffs have failed to prove that they are occupancy tenants. 6.5. And under such circumstances, Mr. Hazarika submits that the substantial question of law, as formulated by this Court, is involved herein and accordingly, he has contended to answer the same in affirmative and then to allow this appeal, by setting aside the impugned judgment and decree, so passed by the learned First Appellate Court. Page No.# 11/22 Submissions of learned counsel for the respondents:- 7. Per contra, Dr. Goswami, learned counsel for the respondents, submits that none of the grounds mentioned in Section 51 of the Act is applicable in the case in hand. According to him the only relief the defendant is entitled to is rent. He also points it out that in view of Sections 27, 35 & 36 of the Act, the appellant herein ought to have preferred Rent Suit; but having not preferred the Rent Suit, he had filed a suit for eviction of the plaintiffs, which is not at all maintainable. 7.1. Mr. Goswami has also pointed out that though, the burden is always on the tenant to prove the payment of rent, as submitted by the counsel for the appellant, yet, Section 37 of the Act does not provide for any mode for payment of rent. ‘Clause IV’ of Section 37 provides that a receipt should be issued by the landlord to the tenant upon receipt of rent, but the landlord has not issued any such receipt. 7.2. Mr. Goswami has also pointed out that rent for the year 2015 was paid and that in the year 2016 also, the appellant herein went to collect the rent. 7.3. It is the further contention of Mr. Goswami that claiming of rent for the aforementioned period, is barred by limitation and both the Courts below have discussed this issue of limitation and there is concurrent finding of fact; and sitting in second appeal, this Court is not entitled to re-appreciate the evidence again. 7.4. Further, Mr. Goswami has pointed it out that Section 38 of the Act applies only in respect of a refusal to accept rent by the landlord and under such circumstances; Mr. Goswami has pointed out that the substantial question of Page No.# 12/22 law, as formulated by this Court, is not at all involved herein and therefore, he has contended to dismiss the appeal. 8. It is to be noted here that during the course of hearing, to a pointed query put by this Court, Mr. Hazarika, learned counsel for the appellant fairly submitted that none of the grounds for ejectment of tenant, under the Act 1971 is made out. However, he submits that the appellant herein is entitled to recover the rent, since the year 2012 Consideration and Analysis:- 9. Having heard the submissions, so advanced by the learned counsel for both the parties, this Court has carefully gone through the memo of appeal and the grounds mentioned therein and also gone through the documents placed on record; the substantial question of law; the impugned Judgment, dated 02.02.2023 and Decree, dated 09.02.2023, passed by the learned First Appellate Court, in Title Appeal No. 01/2021; and also, the Judgment, dated 16.03.2020 and, the Decree, dated 22.03.2020, passed in T.S. No. 17/2016, by the learned Trial Court. Also gone through the Assam (Temporarily settled Areas) Tenancy Act 1971. 10. Though, the learned counsel for the parties have advanced extensive arguments covering several issues, for the purpose of deciding this appeal, the discussion will be confined only to the substantial question of law. At the cost of repetition also, this court reminds itself that the substantial question is- Whether an occupancy tenant is mandatorily liable to pay rent/proceeds out of the land so belonging to the land lord? 10.1. Section 12 of the Assam (Temporarily Settled Areas) Tenancy Act, Page No.# 13/22 1971 deals with the obligation to pay fair rent. It read as under:- “12. Any occupancy tenant shall pay rent for his holding at fair and equitable rate, subject to the maximum rate of rent laid down under the provisions of Section 28 of this Act. Provided that if the tenant has been holding his land for a continuous period of not less than 10 years (i) at a rate of rent never exceeding the revenue rate or (ii) at less than the revenue rate in addition to service to be rendered by him then the rent at the revenue-rate shall be deemed to be the fair and equitable rent.” 10.2. This obligation appears to be mandatory. An occupancy tenant acquires strong rights which are permanent, heritable, and transferable right of use and occupancy after continuous possession for 3+ years. But, they remain liable to pay rent to the landlord. As per Section 28, the rent may be of following types:-  Cash rent: Not exceeding 3 times the land revenue payable for the land.  Crop rent/share: Not exceeding 1/5th (20%) of the produce of the principal crop.  Special rules apply in cases of natural calamities or inability to pay in kind (e.g., equivalent to double the annual land revenue in some cases). 10.3. This rent must be fair and equitable, and enhancement is restricted (only on specific grounds under Chapter VII of the Act). If the tenant has held the land for 10+ years at or below revenue rate, the rent at revenue rate is deemed fair. 10.4. Thus, it appears that occupancy tenant and non-occupancy tenant both classes of tenants have a duty to pay rent. It also appears that occupancy tenants have stronger protections against eviction, which can be only Page No.# 14/22 on limited grounds. It also appears that failure to pay can lead to legal action for recovery of arrears, and in some cases, affect tenancy rights though eviction is heavily restricted. 11. In the instant case, it is an admitted fact that the fathers of the plaintiffs were tenants under the father of the defendant No.1. The defendant No.1 had also not disputed the claim of the plaintiffs that their fathers were occupancy tenants under his father. After the death of their fathers, and also after the death of father of the defendant No. 1, the plaintiffs’ became the tenants under the defendant No.1. 12. In view of aforesaid provision factual and legal position, the substantial question of law as formulated herein above has to be answered as affirmative to the extent that an occupancy tenant is mandatorily liable to pay rent or a share of the produce/proceeds) to the landlord under the relevant law in Assam i.e. the Assam (Temporarily Settled Areas) Tenancy Act, 1971. 13. So far the present case is concerned, what is to be looked into is whether, the plaintiffs, being occupancy tenants, are mandatorily liable to pay rent or a share of the produce/proceeds to the defendant No. 1. 13.1. It is to be noted here that it is the categorical contention of the defendant No.1 that plaintiff Nos.1, 2, 3 had stopped paying the one fifth share of the crops to him in respect of the land described in schedule A, and the plaintiff Nos. 4 and 5 stopped giving the crops in respect of the land described in schedule B and the defendant Nos. 4 and 5 encroached the land described in schedule C and D forcibly, in the year 2014. His further contention is that earlier the schedule C and D land was cultivated by one Mohuruddin and Qurban Munchi as tenants of the defendant No. 1 and both of them had left the land 15 Page No.# 15/22 years back, by delivering possession of the same to the defendant No. 1. Since then, the defendant No. 1 engaged cultivators to cultivate the land, till it was dispossessed. The plaintiff No. 6 stopped giving share of the crop in respect of schedule E land. The plaintiff Nos. 7 and 8 stopped giving their share of crops in respect of schedule F land and the plaintiff Nos. 9 and 10 stopped giving share of crops in respect of land described in schedule G and H, respectively. 13.2. Under such circumstances he had put up counterclaim, seeking several relief(s) amongst other, a sum of Rs. 57,600/ from plaintiffs No. 1, 2, and 3, and a sum of Rs. 2,61,600/- from the plaintiffs Nos. 4 & 5 and Rs.9,600/- from plaintiff No. 6 and a sum of Rs.21,600/- from the plaintiffs Nos. 7 & 8 and a sum of Rs. 16,800/ from the plaintiff No. 9 and a sum of Rs. 16,800/ from the plaintiff No. 10. 13.3. However, the contention of the plaintiffs is that the story of defaulting on delivery of crops to the defendant No -1 is a story to evict the plaintiffs and had they been defaulter, the defendant No -1 would have filed any suit/proceeding claiming the share of rent in time. It is their further contention that they used to pay their respective share of rent to the defendant No -1 year after year without any default and the defendant No-1 did not take recourse to recover the defaulting rent in proper time. Finding of the learned Trial Court:- 14. The learned trial court had dealt with this aspect of the matter in Issue No. (V). It had held that it is evident from the evidence of both the parties that there was nothing in writing regarding the mode of payment of rent as well as receipt and payment of rent. 14.1. Thereafter, discussing the evidence of the defendant (D.W.1) and the Page No.# 16/22 documents exhibited by him, the Court had arrived at a finding that though, the D.W.1 had testified that from the year 2012, the plaintiffs stopped giving the crops to him without any reason and though he has issued legal notices to the plaintiffs’ demanding rent the same were only after institution of suit by the plaintiffs and in this respect, though the he had, in his evidence, given the explanation that due to his old age and ailments he could not initiate any legal action against the plaintiffs in the year 2012 or thereafter, the same is found not acceptable as there is no evidence regarding his ailment. 14.2. It has also held that when D.W.1 and his clerk visited the plaintiffs in that connection, they took different pleas and hence he/Dw1 asked the plaintiffs to vacate the suit land, that lastly, in the month of July 2016, he/Dw1 along with his clerk Mohibat Ali went to the plaintiffs and asked them to vacate the suit land whereupon the plaintiffs abused them and threatened them with dire consequences in the event of their coming there seeking possession of the suit land, yet, in his cross examination, Dw2, Mohibat Ali, the said clerk of Dw1, had said that he could not say as to when the plaintiffs had given the share of the crops to the defendant No.1/Dw1. Moreover, Dw2 could not say as to when he had gone to the plaintiffs to ask them to pay the rent. 14.3. Thereafter, it was held that though, D.W.1 had claimed that from the year 2012, the plaintiffs stopped paying the rent, the evidence adduced in this respect is not at all sufficient and cogent Hence preponderance of probability is not in favour of the defendant No. 1/counter claimant. And thereafter, it has decided the issue No. (v) in negative. Finding of learned First Appellate Court :- 15. The learned First Appellate Court has held that though, the defendant No. Page No.# 17/22 1 claimed that from the year 2012, the plaintiffs had stopped paying the rent and that he had issued legal notice on 28.09.2016, demanding payment of rent, the same was issued only after institution of the Title Suit by the plaintiffs. And though, he had taken a stand that due to old age and ailments, he could not initiate any legal action against the plaintiffs in the year 2012 or thereafter, yet, the said explanation is not plausible and acceptable, as he failed to support his stand by any documentary evidence. Rather, his participation in the suit speaks otherwise; which makes it difficult to believe that due to old age and ailments in the year 2012, he had failed to initiate any legal action against the plaintiffs. 15.1. It has also been held that in the month of July, 2016, the defendant No. 1, along with his clerk, namely, Manimat Ali, went to the plaintiffs to ask them to vacate the suit land, whereupon, the plaintiffs abused them and also threatened them. But, cross-examination of the DW-1 reveals that there was no written agreement between the parties and he cannot say when the plaintiffs had given share of the crops to the defendant No. 1. And D.W.2 could not say as to when he had gone to the plaintiffs to ask them to pay rent. 15.2. Thereafter, it has held that the evidence adduced by defendant No.1/appellant regarding the non-payment of rent since 2012 by the plaintiff is not supported by any cogent evidence, the preponderance of probability is not in favor of the defendant No.1/counter claimant. Then, it has decided the Issue no.(v) against the defendant no.1/appellant. Finding of this Court :- 16. It is to be noted here that admittedly, the defendant No. 1 has not initiated any legal steps against the plaintiffs for non-payment of rent, though he had Page No.# 18/22 alleged that the plaintiffs had stopped payment of rent since the year 2012. Instead, he had taken a false plea that due to old age and ailments; he could not initiate any legal action against them. 17. Thus, it appears that both the courts below had recorded a concurrent finding of fact to the effect that the evidence adduced by defendant No.1/appellant regarding the non-payment of rent since 2012 by the plaintiff is not supported by any cogent evidence, the preponderance of probability is not in favor of the defendant No.1/counter claimant. It is well settled that concurrent finding of fact is by both the courts below is binding upon this court. Reference in this context can be made to a decision of Hon’ble Supreme Court in Narayanan Rajendran v. Lekshmy Sarojini, reported in (2009) 5 SCC 264, where in it has been held as under:- 27. “51. Again in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] another three-Judge Bench of this Court correctly delineated the scope of Section 100 CPC. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court the word substantial, as qualifying ‘question of law’, means—of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with— technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of ‘substantial question of law’ by suffixing the words ‘of general importance’ as has been done in many other provisions such as Section Page No.# 19/22 109 of the Code and Article 133(1)(a) of the Constitution. 52. In Kamti Devi v. Poshi Ram [(2001) 5 SCC 311 : 2001 SCC (Cri) 892] the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. 53. In Thiagarajan v. Venugopalaswamy B. Koil [(2004) 5 SCC 762] this Court has held that the High Court in its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible. 54. In the same case, this Court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible. 55. This Court again reminded the High Court in Commr., Hindu Religious & Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. 56. Again, this Court in State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139] has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Page No.# 20/22 Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure. 57. Again, in Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553] this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled 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. 58. Again, in Harjeet Singh v. Amrik Singh [(2005) 12 SCC 270] this Court with anguish has mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 CPC. This Court, while setting aside the judgment of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the courts below. 59. In H.P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered on 6-2-2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside.” [Ed. : As observed in Gurdev Kaur v. Kaki, (2007) 1 SCC 546 at pp. 560-62, paras 51-59.] 28. In Chandrika Singh v. Sarjug Singh [ (2006) 12 SCC 49] this Court again reiterated the legal position that the High Court under Section 100 CPC has limited jurisdiction. To deal with cases having a substantial Page No.# 21/22 question of law, this Court observed as under: (SCC p. 51, para 12) “12. … While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the courts below are binding on the High Court.” 29. In Chacko v. Mahadevan reported in [(2007) 7 SCC 363] while dealing with the jurisdiction of Sections 96 and 100 CPC, this Court laid down as under: (SCC p. 365, para 6) “6. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law.” 18. It is also to be noted here that the limitation for recovery of rent is 3 years under the Limitation Act and though, the defendant No. 1 has taken a plea that since the year 2012, no rent was paid to him; yet, the suit appears to be instituted in the year 2016 and he has filed written statement cum counter-claim in the said suit only on 09.12.2016. On this count also the claim of the defendant No.1 is barred by the limitation up to 2015. Conslusion :- 19. Under the given facts and circumstances on the record, this Court is of the view that the substantial question of law, as framed by this Court; has to be answered in negative and accordingly the same stands answered. Page No.# 22/22 20. In the result, this Regular Second Appeal stands dismissed, leaving the parties to bear their own costs. JUDGE Comparing Assistant