Case Note & Summary
The appellant-plaintiff, Suresh Namdeorao Wankhade, filed a second appeal challenging the concurrent judgments of the trial court and the first appellate court dismissing his suit for declaration, permanent injunction, and possession of a portion of a suit plot. The plaintiff claimed ownership based on a registered sale deed dated 15.05.2004 executed by the late husband of the respondent-defendant, Smt. Meena w/o Arun Jayale (Patil), for a consideration of Rs.77,000/-. He alleged that the defendant had encroached upon a portion of the plot by erecting permanent construction. The defendant denied the execution of the sale deed and the encroachment, asserting her own possession. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The High Court admitted the second appeal on two substantial questions of law: whether the findings on ownership and possession were perverse in light of the registered sale deed, and the effect of the Supreme Court's decision in Anthula Sudhakar v. P. Buchi Reddy. The High Court held that the concurrent findings were not perverse. The plaintiff failed to prove delivery of possession under the sale deed, as he did not examine the vendor or any independent witness. The defendant's long-standing possession was established through her testimony and documentary evidence. The court distinguished Anthula Sudhakar, noting that in that case, the plaintiff had proved possession, whereas here the plaintiff did not. The court dismissed the second appeal, confirming the dismissal of the suit.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court in second appeal can interfere with concurrent findings of fact only if they are perverse or based on no evidence. The court held that the findings of the courts below were not perverse as they were based on proper appreciation of evidence, including the failure of the plaintiff to prove delivery of possession under the registered sale deed. (Paras 4-10) B) Property Law - Sale Deed - Delivery of Possession - Transfer of Property Act, 1882, Section 54 - A registered sale deed does not automatically prove possession; the plaintiff must adduce evidence of delivery of possession. The court held that the plaintiff failed to prove possession, and the defendant's long-standing possession was established by evidence. (Paras 5-9) C) Evidence - Burden of Proof - Perversity - The plaintiff's failure to examine the vendor or any independent witness to prove possession rendered the concurrent findings sustainable. The court held that the findings were not perverse and no interference was warranted. (Paras 8-10)
Issue of Consideration
Whether the findings of the courts below on ownership and possession were perverse in the face of a registered sale deed, and what is the effect of the law laid down in Anthula Sudhakar v. P. Buchi Reddy on the sustainability of concurrent judgments.
Final Decision
Second appeal dismissed. The judgment and decree of the first appellate court dated 24.11.2017 confirming the trial court's dismissal of the suit are upheld.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- perversity
- registered sale deed
- delivery of possession
- burden of proof
- Section 100 CPC
