Case Note & Summary
The appellant, Dattatraya Bajirao Kale, original defendant No.5, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, against the concurrent findings of the trial court and the first appellate court. The original plaintiff, Dinkar Pandurang Pawar (since deceased, represented by legal heirs), had filed a suit for declaration of ownership and permanent injunction in respect of certain agricultural lands. The plaintiff claimed that the suit properties were ancestral joint family properties and that he was in possession of his share. The defendant No.5 (appellant) claimed that he had acquired title by adverse possession. The trial court decreed the suit in favor of the plaintiff, holding that the plaintiff was a co-owner and that the defendant No.5 had failed to prove adverse possession. The first appellate court confirmed the decree. In the second appeal, the appellant argued that the courts below had erred in not considering his evidence and that the findings were perverse. The High Court examined the record and found that the concurrent findings were based on proper appreciation of evidence. The court held that a co-owner cannot claim adverse possession against another co-owner without clear ouster, which was not proved. The court also held that no substantial question of law arose for consideration. Accordingly, the second 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 a second appeal lies only on substantial questions of law and not on questions of fact. Concurrent findings of fact cannot be interfered with unless shown to be perverse or based on no evidence. The appellant failed to demonstrate any perversity or substantial question of law. (Paras 1-15) B) Property Law - Adverse Possession - Co-owner - The court held that a co-owner cannot claim adverse possession against another co-owner unless there is clear ouster and the co-owner claiming adverse possession has asserted hostile title to the knowledge of the other co-owner. The appellant, being a co-owner, failed to prove ouster or hostile possession. (Paras 10-14) C) Property Law - Declaration of Ownership - Injunction - The plaintiff, as a co-owner, was entitled to seek declaration of ownership and injunction against other co-owners who were interfering with his possession. The suit was maintainable as the plaintiff sought to protect his share in the joint family property. (Paras 5-9)
Issue of Consideration
Whether the concurrent findings of fact by the trial court and first appellate court suffer from any perversity or raise substantial questions of law warranting interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed with no order as to costs.
Law Points
- Second appeal under Section 100 CPC limited to substantial questions of law
- Concurrent findings of fact not interfered with unless perverse
- Co-owner cannot claim adverse possession against another co-owner without ouster
- Burden of proof on party claiming adverse possession
- Suit for declaration of ownership and injunction maintainable by co-owner
