Case Note & Summary
The appellants-defendants filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and order dated 1st April 2013 passed by the learned Ad-hoc District Judge-III, Washim, in Regular Civil Appeal No. 136 of 2010. The first appellate court had partly decreed the suit for perpetual injunction filed by the respondents-plaintiffs, restraining the appellants-defendants from interfering with the possession of the respondents over their fields. The parties were agriculturists with adjacent lands. The plaintiffs owned Survey No. 33/1 (plaintiff No.2) and Survey Nos. 28/1 and 27/1 (plaintiff No.1), while the defendants owned Survey Nos. 27/2, 25/1, and 27/3. The plaintiffs alleged that there was no cart way or foot way through their lands for the defendants to access their fields, and that the defendants were quarrelsome and had filed a false application before the Tahasildar claiming a right of way. The Tahasildar, after spot inspection, found no such way existed. The plaintiffs sought perpetual injunction and damages for obstruction and damage to crops. The trial court dismissed the suit, but the first appellate court reversed the decision and granted the injunction. In the second appeal, the High Court considered whether any substantial question of law arose. The court noted that the first appellate court had reappreciated the evidence and recorded findings that the plaintiffs were in possession and the defendants had no right of way. The High Court found that these findings were not perverse and were based on evidence. Consequently, the court held that no substantial question of law was involved and dismissed the second appeal, confirming the decree of perpetual injunction.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court examined whether the first appellate court's judgment and decree granting perpetual injunction against interference with possession raised any substantial question of law. Held that the findings of fact by the first appellate court were based on evidence and not perverse, and no substantial question of law arose for consideration in the second appeal (Paras 1-13).
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 involves any substantial question of law, particularly regarding the first appellate court's findings on possession and right of way.
Final Decision
The second appeal is dismissed. The judgment and order dated 1st April 2013 passed by the learned Ad-hoc District Judge-III, Washim in Regular Civil Appeal No. 136 of 2010 is confirmed. No order as to costs.
Law Points
- Substantial question of law
- Section 100 CPC
- Perpetual injunction
- Right of way
- Concurrent findings
- Perversity
Case Details
2022 LawText (BOM) (06) 70
Second Appeal No. 259 of 2013 with Civil Application No. 519 of 2013
Mr. S. S. Dhengale for the Appellants, Shri V. K. Paliwal for Respondent Nos. 1 and 2
Dattaram s/o. Namdev Ingole, Gajanan Motiram Ingole, Nilkanth s/o. Namdev Ingole, Santosh S/o. Raghunath Ingole
Vishwambhar Bapurao Ingole, Laxmanrao Vithoba Ingole
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Nature of Litigation
Civil suit for perpetual injunction and damages regarding right of way and interference with possession.
Remedy Sought
The plaintiffs sought a decree of perpetual injunction restraining the defendants from interfering with their possession over suit lands and damages of Rs.21,000/-.
Filing Reason
The defendants allegedly obstructed and interfered with the plaintiffs' peaceful possession and caused damage to crops, and claimed a right of way through plaintiffs' lands which was rejected by the Tahasildar.
Previous Decisions
The trial court dismissed the suit; the first appellate court allowed the appeal and partly decreed the suit granting perpetual injunction.
Issues
Whether the second appeal under Section 100 CPC involves any substantial question of law.
Whether the first appellate court's findings on possession and right of way are perverse.
Submissions/Arguments
Appellants argued that the first appellate court erred in reversing the trial court's judgment without proper appreciation of evidence.
Respondents supported the first appellate court's findings and contended that no substantial question of law arises.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court can interfere only if a substantial question of law arises. The first appellate court's findings of fact, if based on evidence and not perverse, are binding and do not give rise to a substantial question of law.
Judgment Excerpts
By this Appeal filed under Section 100 of the Civil Procedure Code, 1908, the appellants-defendants have impugned the judgment and order dated 1st April, 2013 passed by learned Ad-hoc District Judge-III, Washim thereby allowing Regular Civil Appeal No. 136 of 2010 filed by appellants-plaintiffs.
The court found that the first appellate court had reappreciated the evidence and recorded findings that the plaintiffs were in possession and the defendants had no right of way. These findings were not perverse and were based on evidence.
Procedural History
The plaintiffs filed R.C.S. No. 06 of 2008 (old R.C.S. No. 91 of 2007) for perpetual injunction and damages. The trial court dismissed the suit. The plaintiffs appealed in Regular Civil Appeal No. 136 of 2010, which was allowed by the first appellate court on 1st April 2013, granting perpetual injunction. The defendants then filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
