Case Note & Summary
The case involves a second appeal filed by the legal representatives of the original sole defendant against the judgment and decree passed by the lower appellate court in a suit for possession and mesne profits. The plaintiff-respondent had filed a suit for possession of the suit property, claiming that the defendant was a licensee and had failed to vacate despite termination of license. The defendant contended that he was in possession under an agreement of sale and had performed part performance under Section 53A of the Transfer of Property Act, 1882. The trial court decreed the suit, and the first appellate court confirmed the decree. In the second appeal, the appellants sought framing of substantial questions of law regarding non-framing of an issue on Section 53A and the order dated 3rd July 2009 being per incuriam. The High Court, after hearing both sides, held that the findings of fact by both courts below were concurrent and based on evidence. The court noted that the plea of part performance was not supported by evidence and that the order dated 3rd July 2009 had become final as the writ petition challenging it was dismissed for default. The court concluded that no substantial question of law arose and dismissed the appeal.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court considered whether the proposed questions regarding non-framing of an issue under Section 53A of the Transfer of Property Act, 1882 and the order dated 3rd July 2009 being per incuriam constitute substantial questions of law. The court held that the findings of fact by both lower courts were concurrent and not perverse, and no substantial question of law arose. (Paras 1-11)
B) Transfer of Property Act - Part Performance - Section 53A - The appellants contended that the lower courts erred in not framing an issue on Section 53A despite pleadings. The court held that the evidence did not support the plea of part performance and the concurrent findings did not warrant interference. (Paras 2-10)
Issue of Consideration
Whether the proposed substantial questions of law regarding non-framing of issue under Section 53A of the Transfer of Property Act, 1882 and the order dated 3rd July 2009 being per incuriam warrant admission of the second appeal.
Final Decision
The second appeal is dismissed. No substantial question of law arises. The concurrent findings of fact are not perverse. The order dated 3rd July 2009 has become final. No order as to costs.
Law Points
- Substantial question of law
- Section 100 CPC
- Section 53A Transfer of Property Act
- 1882
- Part Performance
- Perverse findings
- Concurrent findings of fact
Case Details
2022 LawText (BOM) (08) 116
SECOND APPEAL NO.280 OF 2021 WITH INTERIM APPLICATION NO.3358 OF 2020
Mr. S. N. Chandrachood for the Appellants, Mr. Sujay H. Gangal for the Respondent
Dilip Dagdoba Zadbuke & Ors.
Sadanand Arvind Khandagle
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Nature of Litigation
Second appeal against concurrent decrees for possession and mesne profits in a suit for possession based on termination of license.
Remedy Sought
Appellants sought admission of the second appeal on substantial questions of law regarding non-framing of issue under Section 53A of the Transfer of Property Act, 1882 and the order dated 3rd July 2009 being per incuriam.
Filing Reason
Appellants challenged the concurrent findings of the trial court and first appellate court decreeing the suit for possession.
Previous Decisions
Trial court decreed the suit; first appellate court confirmed the decree; writ petition challenging the order dated 3rd July 2009 was dismissed for default on 2nd July 2013.
Issues
Whether the lower courts erred in not framing an issue on Section 53A of the Transfer of Property Act, 1882 despite pleadings?
Whether the order dated 3rd July 2009 excluding the counter claim of part performance is per incuriam in view of the later Supreme Court decision in Sumtibai v. Paras Finance Co.?
Submissions/Arguments
Appellants argued that the lower courts failed to frame an issue on Section 53A despite clear pleadings in the additional written statement, and that the order dated 3rd July 2009 excluding the counter claim was per incuriam.
Respondent argued that the evidence and findings by both courts below do not warrant framing of any substantial question of law.
Ratio Decidendi
A substantial question of law under Section 100 CPC must be a question of law that is substantial and not merely a question of fact. Concurrent findings of fact cannot be interfered with unless perverse or based on no evidence. The plea of part performance under Section 53A of the Transfer of Property Act, 1882 must be supported by evidence; mere pleadings are insufficient. An order that has become final cannot be challenged collaterally as per incuriam.
Judgment Excerpts
The law on point of framing substantial question of law is well settled. The substantial question of law is different from question of law.
If particular piece of evidence is not considered by both the Courts below or wrongly considered by ignoring the principles of law then it can be said that the findings are perverse.
Procedural History
The plaintiff filed a suit for possession and mesne profits. The trial court decreed the suit. The first appellate court confirmed the decree. The defendant's legal representatives filed a second appeal. During the pendency of the appeal, the appellants sought framing of substantial questions of law. The High Court heard arguments on admission and dismissed the appeal.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 100
- Transfer of Property Act, 1882: Section 53A
