Case Note & Summary
(1) Background: The dispute arose between two sets of purchasers who bought adjacent properties bearing Survey Nos. 108/1/1 and 109/2-A near Peth Road, Panchwati Area, Nasik City, from a common owner. The plaintiffs (appellants before Supreme Court) filed a civil suit seeking declaration, permanent injunction, and mandatory injunction in respect of a common road and encroachments. The defendants (respondents) contested the width of the road. The trial court and first appellate court decreed the suit in favour of plaintiffs, but the High Court in second appeal reversed these concurrent findings. The Supreme Court examined whether the High Court's interference was justified. (2) Facts: Both parties purchased from common owner; a common road existed for use of both sides and access to a well. The only dispute was road width: plaintiffs claimed uniform 30 feet; defendants claimed after excluding encroachments the width ranged from 10-15 feet at one point to 20-22 feet at another. The trial court, after considering oral and documentary evidence, declared the road A.B.E.F. in plan Ext. 42 as uniform breadth of 30 feet, common ownership and user, restrained defendants from obstructing, and directed removal of encroachments within 15 days. The appellate court affirmed, holding that plaintiffs were entitled to declaration, mandatory injunction, and permanent injunction. In second appeal, the High Court felt difficulty identifying the land, appointed a Commissioner, and relied on the Commissioner's report to reverse the lower courts. The earlier Commissioner's report from trial had been objected to by both parties and rejected. (3) Legal Issues: Whether High Court in second appeal could interfere with concurrent findings of fact; whether appointment of fresh Commissioner and reliance on report was permissible. (4) Arguments: Appellants argued concurrent findings should not be disturbed; High Court improperly reappreciated evidence; documentary evidence had been considered by lower courts; Commissioner's report was rejected earlier. Respondents argued that appointment of Commissioner prevented appellants from taking excess land; road gave appellants more benefit than share purchased, but this defence was never pleaded or argued earlier. (5) Court's Analysis: The Supreme Court found force in appellants' contention. It held that the High Court was not right in stating that documentary evidence was not considered by both courts; the trial and appellate courts had extensively considered documentary and oral evidence. The effect of evidence is not a question of law. The High Court should not have appointed a fresh Commissioner after the earlier report had been rejected. Since parties went to trial on width and demarcation, High Court could not disturb findings of fact. (6) Decision: Appeal allowed; High Court judgment and decree set aside; trial court and appellate court decrees confirmed; no costs.
Headnote
A) Civil Procedure - Second Appeal - Scope of Interference with Concurrent Findings of Fact - Code of Civil Procedure, 1908 (Second Appeal) - The High Court should not disturb concurrent findings of fact recorded by trial court and appellate court unless they are perverse or based on no evidence; the existence and width of a common road were questions of fact which had been extensively considered by both lower courts - Held that the High Court erred in holding that documentary evidence was not considered and in reappreciating evidence to reverse concurrent findings (Paras not mentioned). B) Civil Procedure - Appointment of Commissioner - Use of Commissioner's Report in Second Appeal - Code of Civil Procedure, 1908 (Second Appeal) - Once a Commissioner's report had been objected to by both parties and rejected by the trial court, the High Court could not appoint a fresh Commissioner in second appeal to localise land and decide existence of road; such report could not form foundation to reverse findings of fact - Held that the High Court was not justified in reversing concurrent findings based solely on Commissioner's report (Paras not mentioned). C) Evidence - Appreciation of Evidence - Documentary and Oral Evidence - Both courts had considered all documentary and oral evidence; High Court's conclusion that they did not consider documents was unjustified - Held that concurrent findings should not be disturbed, and respondents' new contention about unequal benefit was not raised in written statement or argued earlier, so not considered (Paras not mentioned).
Issue of Consideration
Whether the High Court in second appeal was justified in interfering with the concurrent findings of fact recorded by the trial court and the appellate court regarding the existence and width of a common road; and whether the High Court could appoint a Commissioner and reverse findings of fact based on the Commissioner's report after the trial court had rejected an earlier Commissioner's report.
Final Decision
Appeal allowed. Judgment and decree of High Court set aside; judgment and decree of trial court and appellate court restored/confirmed. No costs.
Law Points
- Concurrent findings of fact should not be interfered with in second appeal unless perverse
- High Court cannot reappreciate evidence in second appeal
- Commissioner's report rejected by trial court cannot be relied upon by High Court
- existence and width of common road is a question of fact
- new plea not raised in pleadings cannot be considered
