Case Note & Summary
The present second appeal arises from a suit for declaration and injunction filed by the appellants (original plaintiffs) claiming ownership and exclusive possession of a property in Old Goa. The appellants, Shripad Yesso Naik and others, claimed title through a will executed by their father Yesso Naik and a subsequent sale deed. The respondents, including Vasudev Yesso Naik and others, contested the claim, asserting that the property was ancestral and that the appellants were not in exclusive possession. The trial court dismissed the suit, holding that the appellants failed to prove their title and exclusive possession. The first appellate court confirmed the findings. In the second appeal under Section 100 of the Code of Civil Procedure, 1908, the appellants argued that the findings were perverse and that substantial questions of law arose. The High Court examined the evidence and found that the will was not proved as required under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, as no attesting witness was examined. The courts below had concurrently held that the property was ancestral and that the appellants were not in exclusive possession. The High Court held that these were findings of fact based on appreciation of evidence and not perverse. No substantial question of law arose. The appeal was dismissed with no order as to 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, the High Court can interfere only if there is a substantial question of law. Concurrent findings of fact, unless perverse or based on no evidence, cannot be disturbed. The appeal was dismissed as no substantial question of law arose. (Paras 1-55) B) Property Law - Suit for Declaration and Injunction - Burden of Proof - The appellants claimed ownership of suit property based on a will and sale deed, but failed to prove exclusive possession or title. The courts below concurrently held that the property was ancestral and the appellants were not in exclusive possession. The High Court upheld these findings. (Paras 10-30) C) Evidence Act - Will - Proof of Execution - Sections 63 and 68 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 - The will relied upon by the appellants was not proved in accordance with law as the attesting witnesses were not examined. The courts below rightly discarded the will. (Paras 20-25)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 involves any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below.
Final Decision
The second appeal is dismissed. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- perversity
- interference limited to substantial questions of law
- Section 100 CPC
