Case Note & Summary
The present second appeal was filed by the original defendant No.4, Vikrant s/o Vilasrao Patil (since deceased, through legal heirs), challenging the concurrent judgment and decree passed by the trial court and the first appellate court in a suit for declaration, partition and possession. The original plaintiff, Uttam s/o Nivrati Langade (respondent No.1), had filed Regular Civil Suit No.106 of 1077 before the Civil Judge, Junior Division, Kallam, District Osmanabad, seeking a declaration of his 1/4th share in the suit lands and mango trees, partition, and possession. The trial court decreed the suit on 31-01-1983, declaring that the plaintiff had a 1/4th share and directing that the sale deed executed by defendant No.1 on 11-05-1976 in favour of defendant No.4 stood cancelled to the extent of the plaintiff's 1/4th share. The separation of share was directed to be effected through the Collector. The defendant No.4 appealed to the District Court, but the Regular Civil Appeal No.105 of 1983 was dismissed on 28-04-1993 by the learned Additional District Judge, Osmanabad. Aggrieved, the defendant No.4 filed the present second appeal. The High Court admitted the appeal on 11-09-2006, framing the substantial question of law: whether the concurrent findings of the courts below could be interfered with in second appeal under Section 100 of the Code of Civil Procedure, 1908. The appellant argued that the courts below erred in holding that the sale deed was not binding on the plaintiff to the extent of his share, and that the appellant was a bonafide purchaser for value without notice. The respondents supported the concurrent findings. The High Court, after hearing the parties, held that the concurrent findings of fact were based on proper appreciation of evidence and were not perverse. The appellant failed to discharge the burden of proving that he was a bonafide purchaser without notice. The court found no substantial question of law involved and dismissed the second appeal. The civil application also stood disposed of.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings of fact cannot be interfered with in second appeal unless shown to be perverse or based on no evidence - The appellant failed to demonstrate any perversity or error of law in the concurrent findings of the trial court and first appellate court regarding the plaintiff's 1/4th share and cancellation of the sale deed to that extent - Held that the second appeal was devoid of merit and liable to be dismissed (Paras 1-10). B) Transfer of Property Act - Bonafide Purchaser - Burden of Proof - Sections 41, 43 - A person claiming to be a bonafide purchaser for value without notice must prove that he acted in good faith and took due care to ascertain the title - The appellant, as purchaser, failed to discharge this burden - The courts below rightly held that the sale deed was not binding on the plaintiff to the extent of his 1/4th share - Held that the concurrent findings on this issue were correct and did not warrant interference (Paras 5-9).
Issue of Consideration
Whether the concurrent findings of the courts below regarding the plaintiff's 1/4th share and cancellation of the sale deed to that extent can be interfered with in second appeal under Section 100 of the Code of Civil Procedure, 1908
Final Decision
The second appeal is dismissed. The concurrent judgment and decree passed by the trial court and first appellate court are confirmed. The civil application also stands disposed of. No order as to costs.
Law Points
- Concurrent findings of fact cannot be interfered with in second appeal under Section 100 CPC unless perverse or based on no evidence
- Bonafide purchaser for value without notice must prove absence of notice
- Burden of proof on purchaser to show good faith and due diligence
