Case Note & Summary
The plaintiff, Bhagwatrao Randive, filed a suit for possession and permanent injunction against his brother, Panditrao Randive, alleging encroachment upon his land Gut No.79. The plaintiff claimed that after the death of their father, the defendant managed the properties and in 1969 allotted him a separate share, including Survey Nos.27 and 28-A, which were later consolidated into Gut No.79 under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. The plaintiff alleged that the defendant encroached upon 40 Are of Gut No.79 in 1979-80. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that the courts below had concurrently found that the plaintiff failed to prove his title and the alleged encroachment. The High Court held that the findings were not perverse and did not warrant interference under Section 100 CPC. 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, interference with concurrent findings of fact is permissible only if the findings are perverse or based on no evidence. The appellant failed to demonstrate any perversity or error of law in the judgments of the trial court and first appellate court. (Paras 1-10) B) Property Law - Title and Encroachment - Burden of Proof - The plaintiff, claiming exclusive title and possession over Gut No.79, failed to prove his title or that the defendant encroached upon his land. The courts below concurrently held that the plaintiff did not establish his case. (Paras 3-8) C) Evidence - Consolidation Scheme - Bombay Prevention of Fragmentation and Consolidation of Holdings Act - The plaintiff relied on consolidation records (Ex.44) but failed to prove that the defendant encroached upon his consolidated land. The courts below found that the plaintiff's evidence was insufficient to establish encroachment. (Paras 4-6)
Issue of Consideration
Whether the second appeal 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
- interference limited to perversity
- burden of proof
- title
- encroachment
- consolidation scheme
- Bombay Prevention of Fragmentation and Consolidation of Holdings Act
