Case Note & Summary
The appellant, Sitaram son of Mahagu Bandabuche, filed a second appeal before the Bombay High Court, Nagpur Bench, against the judgment and order dated 22.3.1999 passed by the Additional District Judge, Bhandara in Regular Civil Appeal No. 117 of 1997. The appellate court had set aside the judgment and decree dated 10.9.1997 in Regular Civil Suit No. 62 of 1994 passed by the Civil Judge, Junior Division, Mohadi, and dismissed the suit. The appellant was the original plaintiff who had sought a declaration of ownership and permanent injunction against the respondents, Ashok and Jaipal, sons of Gopalrao Bhongade. The trial court had decreed the suit in favor of the plaintiff. The respondents appealed, and the lower appellate court reversed the decree. The appellant contended that the appellate court failed to appreciate the evidence properly and that its findings were perverse. The High Court, after hearing the appellant's counsel (respondents were absent), framed a substantial question of law regarding the perversity of the appellate court's findings. The court examined the evidence, including the sale deed (Exh. 33) and the will (Exh. 34), and found that the appellate court had not considered the documentary evidence and had merely reversed the trial court's decree without proper reasoning. The High Court held that the appellate court's judgment was perverse and set it aside, restoring the trial court's decree. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court in second appeal can interfere if the lower appellate court's findings are perverse or based on no evidence. The court held that the appellate court failed to consider the documentary evidence and the reasoning of the trial court, thus the judgment was set aside (Paras 1-10).
Issue of Consideration
Whether the lower appellate court was justified in reversing the trial court's decree without properly appreciating the evidence on record, and whether the findings of the appellate court are perverse.
Final Decision
The appeal is allowed. The judgment and order dated 22.3.1999 passed by the Additional District Judge, Bhandara in Regular Civil Appeal No. 117 of 1997 is set aside. The judgment and decree dated 10.9.1997 passed by the Civil Judge, Junior Division, Mohadi in Regular Civil Suit No. 62 of 1994 is restored. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- concurrent findings
- appreciation of evidence
- declaration of title
- permanent injunction
Case Details
2010 LawText (BOM) (06) 144
Second Appeal No. 321 of 1999
Ms Shilpa O. Tapadiya holding for Mr A.M. Quazi for appellant; None appears for respondents
Sitaram son of Mahagu Bandabuche
Ashok son of Gopalrao Bhongade and Jaipal son of Gopalrao Bhongade
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Nature of Litigation
Civil suit for declaration of ownership and permanent injunction
Remedy Sought
Appellant (original plaintiff) sought declaration of ownership and permanent injunction against respondents
Filing Reason
Appellant claimed ownership and possession of suit property based on sale deed and will; respondents allegedly interfered with possession
Previous Decisions
Trial court decreed suit in favor of plaintiff on 10.9.1997; lower appellate court set aside decree and dismissed suit on 22.3.1999
Issues
Whether the lower appellate court's judgment reversing the trial court's decree is perverse and based on no evidence?
Whether the High Court can interfere in second appeal under Section 100 CPC when findings are perverse?
Submissions/Arguments
Appellant argued that the appellate court failed to consider documentary evidence such as sale deed (Exh. 33) and will (Exh. 34) and merely reversed the trial court's decree without proper reasoning.
Respondents did not appear despite service.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court can interfere if the findings of the lower appellate court are perverse, i.e., based on no evidence or ignoring material evidence. The appellate court must consider the evidence on record and cannot reverse a well-reasoned decree without proper analysis.
Judgment Excerpts
This appeal is filed at the instance of original plaintiff aggrieved by the judgment and order dated 22.3.1999 passed by the Additional District Judge, Bhandara in Regular Civil Appeal No. 117 of 1997 whereby the judgment and decree passed on 10.9.1997 in Regular Civil Suit No. 62 of 1994 by the Civil Judge, Junior Division, Mohadi was set aside and the suit was dismissed.
The appellate court has not considered the documentary evidence such as sale deed (Exh. 33) and will (Exh. 34) and has merely reversed the trial court's decree without proper reasoning.
The judgment of the appellate court is perverse and cannot be sustained.
Procedural History
The appellant filed Regular Civil Suit No. 62 of 1994 before the Civil Judge, Junior Division, Mohadi, which was decreed on 10.9.1997. The respondents appealed to the Additional District Judge, Bhandara in Regular Civil Appeal No. 117 of 1997, which allowed the appeal and dismissed the suit on 22.3.1999. The appellant then filed the present second appeal before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
