Case Note & Summary
The plaintiff, Kisanlal Maniklal Rathi, filed a suit for possession of 2 gunthas of land from survey no. 75/4-A at Nandura, claiming ownership through purchase from Motisingh Bankatsinha under sale deeds dated 02/07/1974, 29/08/1974, 04/10/1974, and 05/02/1975. He alleged that the defendant, Dinkar Yashwant Patil, encroached upon the suit land in Summer 1976 and constructed a hut. The defendant denied the claim, asserting that he had purchased the suit land from the same previous owner under an oral sale and had been in possession for over 12 years, thereby acquiring title by adverse possession. The Trial Court dismissed the suit on 20/09/1984, and the First Appellate Court confirmed the dismissal on 19/07/1987. The plaintiff filed a second appeal before the Bombay High Court. The High Court framed a substantial question of law regarding the perversity of the findings. Upon examination, the court found that the plaintiff failed to prove his title to the suit land and the alleged encroachment. The courts below had concurrently held that the defendant had acquired title by adverse possession. The High Court concluded that there was no perversity in the findings and dismissed the second appeal, upholding the concurrent judgments.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court held that the plaintiff failed to prove his title and the alleged encroachment, and the defendant's claim of adverse possession was accepted by the courts below. (Paras 1-2) B) Property Law - Adverse Possession - Title by Possession - The defendant claimed possession of the suit land from the previous owner under an oral sale and continued possession for over 12 years, thereby acquiring title by adverse possession. The courts below accepted this defense. (Paras 3-5) C) Evidence - Burden of Proof - Title and Encroachment - The plaintiff, as the party seeking possession, must prove his title and the encroachment. The plaintiff failed to produce sufficient evidence to establish his ownership of the suit land or that the defendant encroached upon it. (Paras 4-6)
Issue of Consideration
Whether the judgment and decree passed by the First Appellate Court confirming the dismissal of the suit for possession on the ground of title and encroachment suffers from any substantial question of law?
Final Decision
Second appeal dismissed. The judgment and decree of the First Appellate Court confirming the dismissal of the suit are upheld.
Law Points
- Second appeal limited to substantial question of law
- concurrent findings of fact not interfered with unless perverse
- adverse possession
- burden of proof on plaintiff to prove title and encroachment
