Case Note & Summary
The judgment pertains to two second appeals arising from a long-standing land dispute in Goa. The appellants, legal heirs of Remedios Fernandes, claimed title and possession over a property known as 'Palmar' or 'Bogmalo' based on a deed of partition dated 30th April 1956. The respondents, including Dr. Alfred Costa and others, asserted their own title and possession. The trial court and the first appellate court concurrently dismissed the appellants' suit for declaration and injunction, holding that the appellants failed to prove their title and possession. The High Court, in the second appeal, examined whether any substantial question of law arose. The court found that the concurrent findings were based on evidence and were not perverse. The appellants' arguments regarding limitation and adverse possession were rejected. The court dismissed both second appeals and the accompanying miscellaneous applications, with costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court reiterated that in a second appeal, interference with concurrent findings of fact is permissible only if the findings are perverse or based on no evidence. The appellants failed to demonstrate any perversity or substantial question of law. (Paras 1-44)
B) Property Law - Title and Possession - Burden of Proof - The appellants, claiming title through a deed of partition, failed to prove their exclusive possession and title over the suit property. The courts below correctly held that the respondents were in possession and had better title. (Paras 10-30)
C) Limitation - Adverse Possession - The appellants' claim of adverse possession was not established as they failed to prove the requisite period of continuous, hostile possession. (Paras 31-35)
Issue of Consideration
Whether the Second Appeals raise any substantial question of law warranting interference with the concurrent findings of the courts below.
Final Decision
Both second appeals are dismissed. The miscellaneous applications are disposed of. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- interference limited to perversity
- limitation
- adverse possession
- title
- burden of proof
Case Details
2024 LawText (BOM) (02) 250
Second Appeal No.35 of 2007 with Misc. Civil Application No.43 of 2021 and 59 of 2024 and Second Appeal No.36 of 2007 with Misc. Civil Application No.44 of 2021 and 125 of 2024
Remedios Fernandes (since deceased) through LRs: Mrs. Monica Cunha e Fernandes, Mr. Darrel Fernandes, Miss Oliya Ubaldina Fernandes, Mr. Volney Fernandes, Mr. Edrich Fernandes
Dr. Alfred Costa, Mrs. Maria Beatriz Costa, Eng. Antonio Pedro Alcantara (deceased) through LRs: Manuel Salvador Quadros D'Costa and Manuela Quadros D'Costa, Mrs. Maria Antonio Camacho da Silva Canijo de Quadros Costa, Eng. Manuel Antonio do Padre Jose Vaz Sacramento Peres de Quadros e Costa, Mrs Maria Elsa Gomes Sanches, Mr Romeo Alvares
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Nature of Litigation
Civil second appeals against concurrent findings in a suit for declaration and injunction regarding title and possession of immovable property.
Remedy Sought
Appellants sought to set aside the concurrent judgments of the trial court and first appellate court dismissing their suit for declaration of title and injunction.
Filing Reason
Appellants claimed title and possession over the suit property based on a deed of partition, which was disputed by the respondents.
Previous Decisions
The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The appellants then filed the present second appeals.
Issues
Whether the second appeals involve any substantial question of law.
Whether the concurrent findings of fact are perverse or based on no evidence.
Submissions/Arguments
Appellants argued that the courts below erred in not accepting their title and possession.
Respondents supported the concurrent findings and argued that no substantial question of law arises.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellants failed to demonstrate any such perversity or substantial question of law.
Judgment Excerpts
The court held that the concurrent findings of the courts below are based on evidence and do not warrant interference.
Procedural History
The suit was filed by Remedios Fernandes in the trial court, which was dismissed. The first appeal was also dismissed. The present second appeals were filed in 2007. Miscellaneous applications were filed in 2021 and 2024.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
