Case Note & Summary
The applicant, Smt. Rosy Noronha, filed a Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 14 December 2022 passed by the learned District Judge, South Goa, in Regular Civil Appeal No. 20/2019. The appeal arose from a suit for declaration and permanent injunction filed by the original plaintiff, Vitorino D. Travasso (since deceased, represented by his legal heirs), against the applicant and others, claiming a right of way over the applicant's property. The trial court decreed the suit, and the lower appellate court confirmed the decree. The applicant contended that the findings of the courts below were perverse, based on no evidence, and that the lower appellate court failed to re-appreciate the evidence as required under Order 41 Rule 31 CPC. The High Court examined the evidence, including the oral testimony of witnesses and the documentary evidence, and found that the lower appellate court had not applied its mind to the crucial aspects, such as the existence of the alleged easement and the applicability of res judicata. The High Court held that the concurrent findings were vitiated by perversity and non-application of mind, and therefore, set aside the impugned judgment and decree, allowing the revision application with costs.
Headnote
A) Civil Procedure - Revision under Section 115 CPC - Perversity - The High Court can interfere with concurrent findings of fact if the findings are perverse, i.e., based on no evidence or misreading of evidence, or if the court below has acted with material irregularity or without jurisdiction. (Paras 1-63) B) Civil Procedure - Res Judicata - Applicability - The principle of res judicata under Section 11 CPC applies only when the matter in issue was directly and substantially in issue in a former suit between the same parties and was heard and finally decided. A mere finding in a previous proceeding not necessary for the determination of the suit does not operate as res judicata. (Paras 1-63) C) Property Law - Easement - Right of Way - Burden of Proof - The plaintiff claiming a right of way by easement must prove the existence of the easement and that the user was as of right, without interruption, for the statutory period. The court must consider the evidence on record and not rely on conjectures. (Paras 1-63)
Issue of Consideration
Whether the lower appellate court's judgment affirming the trial court's decree is perverse and suffers from non-application of mind, warranting interference under Section 115 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the Civil Revision Application, set aside the impugned judgment and decree of the lower appellate court and the trial court, and dismissed the original suit with costs.
Law Points
- Civil Procedure Code
- 1908
- Section 115
- Revision
- Perversity
- Re-appreciation of evidence
- Res judicata
- Concurrent findings
- Jurisdictional error
