Case Note & Summary
The case involves a second appeal filed by the appellants (defendants) against the judgment of the District Judge, Pandharkawada, dismissing their appeal and confirming the decree of the trial court. The original suit was filed by the respondent (plaintiff) for perpetual and mandatory injunction and recovery of possession. The plaintiff claimed that her deceased son Gopal had purchased a plot from Suman Futane on 11/2/1991, who had earlier purchased it from the husband of defendant no.1. Possession was delivered to Gopal, who paid Grampanchayat tax and obtained permission for construction. When construction began, the appellants encroached by constructing a kachcha bathroom on 7 feet x 7 feet of the suit plot. The trial court decreed the suit, and the first appeal was dismissed. In the second appeal, the High Court found no substantial question of law, as the findings of fact were based on evidence and not perverse. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100, Code of Civil Procedure, 1908 - The court examined whether the second appeal raised any substantial question of law. It held that the findings of fact recorded by the lower courts were based on proper appreciation of evidence and were not perverse, and therefore no substantial question of law arose. (Paras 1-5)
Issue of Consideration
Whether the second appeal involves any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- perversity
- appreciation of evidence
Case Details
2010 LawText (BOM) (01) 254
Second Appeal No.486/2009
Mr. S.S. Khadse for appellants
Smt. Shantabai Wd/o Rambhau Chandankhede and Waman S/o Rambhau Chandankhede
Smt. Tulsabai Wd/o Ganeshwmal Varma (dead) through legal representatives Prakash S/o Ganeshmal Varma, Shyam S/o Ganeshmal Varma, Chand W/o Madanlal Varma, Jagdish S/o Ganeshmao Varma
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Nature of Litigation
Civil suit for perpetual and mandatory injunction and recovery of possession.
Remedy Sought
The respondent (plaintiff) sought a decree for perpetual and mandatory injunction and recovery of possession of the suit plot.
Filing Reason
The appellants encroached upon the suit plot by constructing a kachcha bathroom on 7 feet x 7 feet land, and the respondent sought its removal and possession.
Previous Decisions
The trial court decreed the suit on 24/12/1999. The first appeal was dismissed by the District Judge on 16/01/2009.
Issues
Whether the second appeal involves any substantial question of law under Section 100 CPC.
Submissions/Arguments
The appellants argued that the lower courts erred in appreciating the evidence and that the findings were perverse.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court can only interfere if there is a substantial question of law. Concurrent findings of fact based on evidence and not perverse do not give rise to a substantial question of law.
Judgment Excerpts
This is a second filed by the appellants against the judgment dated 16th of January 2009 passed by the learned District JudgeI, Pandharkawada in Regular Civil Appeal No.93/2002.
The suit was filed by the respondents on the ground that her deceased son named Gopal had purchased the plot for the sum of Rs.10,000/ from one Suman Futane on 11/2/1991.
Procedural History
The respondent filed Regular Civil Suit No.20/1999 for perpetual and mandatory injunction and recovery of possession. The trial court decreed the suit on 24/12/1999. The appellants appealed to the District Judge, who dismissed the appeal on 16/01/2009. The appellants then filed the present second appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
