Case Note & Summary
The present second appeal was filed by the original defendant (Rakesh Engineering, through its proprietor Chandrika Mohan Sharma) against the judgment and decree of the District Judge-7, Nagpur, in Regular Civil Appeal No.428/2014, which upheld the trial court's decree in Regular Civil Suit No.43/1999. The suit was filed by the original plaintiff, Vasantrao s/o Ramchandra Alone, seeking possession of Plot No.5 of Mouza Wathoda, P.H. No.34, Pardi, Field No.75/3, admeasuring 4000 sq.ft. The plaintiff claimed to have purchased the suit property from Chandrashekhar Shankarrao Neralwar. The defendant contested the suit, claiming ownership and possession. The trial court decreed the suit, and the first appeal was dismissed. The defendant then filed the present second appeal. During the pendency of the appeal, both the original appellant and respondent died, and their legal heirs were brought on record. The High Court, after hearing the parties, framed the following substantial questions of law: (i) Whether the lower appellate court erred in upholding the trial court's decree for possession? (ii) Whether any substantial question of law arises? The court noted that the findings of fact by both courts below were concurrent and based on evidence. The court held that the plaintiff had proved his title, and the defendant, being a co-owner in possession, could not be dispossessed except by due process of law. The court further held that no substantial question of law arose, and the second appeal was liable to be dismissed. The court dismissed the appeal with no order as to costs.
Headnote
A) Property Law - Co-owner's Possession - Title Suit - The plaintiff, claiming to be a co-owner of the suit property, sought possession from the defendant who was also a co-owner. The courts below decreed the suit, holding that the plaintiff had title and that the defendant, being a co-owner in possession, could not be dispossessed except by due process of law. The High Court upheld the concurrent findings, dismissing the second appeal. (Paras 2-18)
B) Civil Procedure - Second Appeal - Substantial Question of Law - The High Court held that no substantial question of law arose as the findings of fact by the courts below were concurrent and based on evidence. The court reiterated that the scope of interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908 is limited to questions of law. (Paras 1, 18)
Issue of Consideration
Whether the lower appellate court erred in upholding the trial court's decree for possession in favor of the respondent/plaintiff, and whether any substantial question of law arises in the second appeal.
Final Decision
The High Court dismissed the second appeal with no order as to costs, upholding the concurrent findings of the courts below.
Law Points
- Co-owner's possession
- Title suit
- Possession
- Dispossession
- Due process of law
- Concurrent findings
- Substantial question of law
- Second appeal
Case Details
2023 LawText (BOM) (04) 104
Second Appeal No. 156/2020
Shri S.K. Mishra, Senior Advocate assisted by Shri Vikrant Pandey, Advocate for appellants; Shri R.D. Bhuibhar, Advocate alongwith Shri B.C. Chandrakapure, Advocate for LR's of respondents
Rakesh Engineering (through its proprietor Chandrika Mohan Sharma) (deleted); Legal heirs: Sunita w/d Chandrika Sharma, Mrs. Chanchal Pradip Vishwakarma, Mrs. Anjali Virendra Vishwakarma, Kiran Chandrika Sharma, Pooja Chandrika Sharma, Poonam Chandrika Sharma
Shri Vasantrao s/o Ramchandra Alone (deleted); Legal heirs: Kantabai wd/o Vasantrao Alone, Yogita Vasantrao Alone, Lalit Vasantrao Alone
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Nature of Litigation
Civil suit for possession of immovable property based on title.
Remedy Sought
The plaintiff (respondent) sought possession of the suit property from the defendant (appellant).
Filing Reason
The plaintiff claimed to be the owner of the suit property and alleged that the defendant was in possession without any right.
Previous Decisions
The trial court (7th Junior Civil Judge, Junior Division, Nagpur) decreed the suit on 30/08/2014 in Regular Civil Suit No.43/1999. The first appellate court (District Judge 7, Nagpur) dismissed the appeal in Regular Civil Appeal No.428/2014, upholding the trial court's decree.
Issues
Whether the lower appellate court erred in upholding the trial court's decree for possession?
Whether any substantial question of law arises in the second appeal?
Submissions/Arguments
The appellant argued that the courts below erred in decreeing the suit as the plaintiff failed to prove possession and the defendant was a co-owner in possession.
The respondent argued that the concurrent findings of fact were based on evidence and no substantial question of law arose.
Ratio Decidendi
A co-owner in possession cannot be dispossessed except by due process of law. A decree for possession based on title is maintainable even without proof of actual possession. In a second appeal under Section 100 CPC, the court cannot interfere with concurrent findings of fact unless a substantial question of law arises.
Judgment Excerpts
The present second appeal is filed being aggrieved by the judgment and decree passed by the Court of District Judge 7, Nagpur, in Regular Civil Appeal No.428/2014 upholding the judgment and decree dated 30/08/2014 in Regular Civil Suit No.43/1999 passed by the Court of 7th Junior Civil Judge, Junior Division, Nagpur.
The facts in the present appeal are as under: The plaintiff has purchased the suit property Plot No.5 of Mouza Wathoda, P.H. No.34, Pardi, Field No.75/3 admeasuring 4000 sq.ft. from Chandrashekhar Shankarrao Neralwar.
Procedural History
The original plaintiff filed Regular Civil Suit No.43/1999 in the Court of 7th Junior Civil Judge, Junior Division, Nagpur, which was decreed on 30/08/2014. The defendant filed Regular Civil Appeal No.428/2014 before the District Judge 7, Nagpur, which was dismissed. The defendant then filed the present Second Appeal No.156/2020 before the Bombay High Court, Nagpur Bench. During the pendency of the appeal, the original appellant and respondent died, and their legal heirs were brought on record as per Court's order dated 13/06/2022. The High Court dismissed the second appeal on 10/04/2023.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
