Case Note & Summary
The dispute in this Second Appeal arises from a property boundary and encroachment issue between two adjacent plot owners in Rewatkar Layout, Mouza Dighori, Nagpur. The appellant, Shyamsunder s/o Rambahor Tiwari, purchased Plot No.68 admeasuring about 2000 sq.ft. from Ratanchand Jain, while the respondent, Smt. Pramilabai w/o Dadarao Ugemuge, purchased Plot No.64 admeasuring 2000 sq.ft. (50' x 40') under a registered sale deed dated 15.4.1970. The respondent filed Regular Civil Suit No.2025/1992 before the 8th Joint Civil Judge, Junior Division, Nagpur, seeking possession, damages, and perpetual injunction against the appellant, alleging that he had encroached upon her plot and constructed thereon. The appellant denied the allegations in his written statement dated 5.1.1992. The trial court partly decreed the suit, finding that the appellant had encroached upon the respondent's plot. The appellant's first appeal was dismissed by the District Court, Nagpur. Aggrieved, the appellant filed the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court, at the stage of admission, heard the matter and considered the records. The appellant's counsel argued that the identification and boundaries of the suit plot were in dispute. However, the High Court noted that the boundaries of Plot No.64 as per the sale deed were: East: Plot No.65; West: 30 ft. road; North: Plot No.25; South: Plot No.68. Similarly, Plot No.68's boundaries were: East: Plot No.65; West: 30 ft. road; North: Plot No.64; South: Road. Both plots were admeasuring 50' x 40'. The trial court and first appellate court had concurrently found, based on the sale deed boundaries and the Commissioner's report, that the appellant had encroached upon the respondent's plot. The High Court held that no substantial question of law arose, as the findings were based on evidence and were not perverse. The Second Appeal was dismissed 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 held that the Second Appeal does not involve any substantial question of law as the courts below had concurrently found the identity of the suit plot based on sale deed boundaries and Commissioner's report, and the appellant failed to show any perversity or error of law. (Paras 1-5) B) Property Law - Identification of Property - Boundaries - Sale Deed - The dispute pertained to identification of Plot No.64 and Plot No.68 in Rewatkar Layout. The courts below relied on the boundaries described in the sale deed and the Commissioner's report to conclude that the defendant encroached upon the plaintiff's plot. The High Court upheld these findings as they were based on evidence and not perverse. (Paras 2-5) C) Evidence - Commissioner's Report - Evidentiary Value - The Commissioner's report and map were considered by the trial court and first appellate court to identify the suit property. The High Court found no reason to disbelieve the Commissioner's report, which was not challenged by the appellant. (Paras 4-5)
Issue of Consideration
Whether the Second Appeal involves any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below regarding identification of the suit plot and encroachment.
Final Decision
The Second Appeal is dismissed. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- identification of property
- boundaries
- encroachment
- commissioner's report
- sale deed
