Case Note & Summary
The second appeal was filed by original defendant nos. 1 and 2 challenging concurrent judgments and decrees granting declaration of title and injunction in favor of the plaintiffs (respondents) in respect of the eastern side of the suit property. The suit property originally belonged to Dattatray, father of plaintiff nos. 1 to 7 and husband of plaintiff no. 8. The defendants claimed rights based on two agreements for sale (dated 20th June 1983 and 18th March 1991), a possession receipt dated 7th January 1993, and a Will dated 18th June 1992 allegedly executed by Dattatray. The trial court decreed the suit, and the first appeal confirmed the decree. The second appeal was admitted on a substantial question of law regarding the bar under Section 43 of the Bombay Tenancy and Agricultural Lands Act to transfer tenancy land by Will. However, in view of the Supreme Court decision in Vinodchandra Sakarlal Kapadia v. State of Gujarat, the parties agreed that the question was no longer res integra. Consequently, a new substantial question of law was framed: whether the findings on possession of the eastern side were perverse due to ignoring admissions of PW-1 that defendants had stored heaps of rubble on the eastern side. The appellants argued that this admission showed defendants' possession of the eastern side. The respondents contended that the admission only indicated temporary storage after the suit was filed and did not affect their possession. The High Court examined the evidence, including the oral testimony of PW-1 and the photographs, and found that the admission of storage of rubble did not establish exclusive possession by the defendants. The court noted that the plaintiffs had consistently claimed possession of the eastern side, and the defendants had not proved their title or possession through the alleged documents. The court held that the concurrent findings of fact were based on proper appreciation of evidence and were not perverse. The second appeal was dismissed, and the decree of injunction was upheld.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court framed a substantial question of law under proviso to sub-section (5) of Section 100 CPC regarding perversity of findings on possession - The court held that the concurrent findings of fact based on appreciation of evidence cannot be interfered with unless perverse - The admission of storage of rubble by defendants does not establish their exclusive possession (Paras 4, 11-14). B) Property Law - Possession - Injunction - Burden of Proof - The plaintiffs sought declaration of title and injunction based on their possession of eastern side of suit property - The court held that the plaintiffs' possession was established through oral and documentary evidence, and the defendants' claim based on agreements and Will was not proved - The admission of storage of rubble by defendants after filing of suit does not defeat plaintiffs' possession (Paras 5-10, 15-18).
Issue of Consideration
Whether the findings recorded by both courts regarding the plaintiffs being in possession of eastern side of the suit property would amount to incorrect appreciation of evidence on record and more particularly ignoring the admissions given by PW-1?
Final Decision
Second appeal dismissed; concurrent judgments and decrees granting declaration of title and injunction in favor of plaintiffs are upheld.
Law Points
- Section 100 CPC
- substantial question of law
- perverse findings
- appreciation of evidence
- possession
- injunction
- concurrent findings
