Case Note & Summary
The present second appeal arises from a suit for possession based on title filed by the original plaintiff (respondent No. 1) against the original defendant (appellant) and others in respect of land bearing Survey No. 261 at Village Dhanora. The trial court decreed the suit, and the first appellate court confirmed the decree. The appellant-defendant filed this second appeal under Section 100 of the Code of Civil Procedure, 1908. The appellant contended that the courts below had failed to consider the compromise decree dated 30-11-1964 and the mutation entries in the revenue records which showed that the appellant was in possession of the suit land. The High Court held that the concurrent findings of the courts below were perverse as they had ignored crucial evidence. The court framed substantial questions of law regarding the perversity of the findings and the failure to consider the compromise and mutation entries. The High Court allowed the appeal, set aside the judgments of the courts below, and remanded the matter to the trial court for fresh consideration after giving both parties an opportunity to lead evidence on the compromise decree and mutation entries.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court can interfere with concurrent findings if they are perverse or based on no evidence. In the present case, the courts below failed to consider the compromise decree and mutation entries which were crucial to the appellant's defence. Held that the findings were perverse and the appeal raised substantial questions of law (Paras 3-5).
B) Evidence - Appreciation of Evidence - Compromise Decree and Mutation Entries - The trial court and first appellate court ignored the compromise decree dated 30-11-1964 and the mutation entries in the revenue records showing the appellant's possession. Held that such omission vitiates the findings and warrants interference (Paras 4-5).
Issue of Consideration
Whether the concurrent findings of the courts below are perverse and whether the second appeal raises substantial questions of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the trial court and the first appellate court, and remanded the matter to the trial court for fresh decision after giving both parties an opportunity to lead evidence on the compromise decree and mutation entries.
Law Points
- Second appeal
- substantial question of law
- concurrent findings
- perversity
- compromise decree
- mutation entries
- evidence appreciation
Case Details
2010 LawText (BOM) (10) 4
Second Appeal No. 1435 of 2005
A.S. Abhyankar for appellants, S.K. Shinde for respondent No. 1, A.R. Kale for respondent Nos. 3 & 5
Khandu Shankar Choudhari (since deceased, through L.Rs. Vimlabai Khandu Chaudhari, Magan Khandu Chaudhari, Vasant Khandu Chaoudhari, Shailabai Madhukar Chaudhari)
Yeshwant Dhaku Khatri, Vasudeo Dhaku Patil (since deceased, through L.Rs. Bhaskar Vasudeo Daneje, Gotya Vasudeo Daneje), Dhaudibai @ Dhudkibai W/o Tulshiram Choudhari, Dhanabai W/o Makkan Chaudhari, Kamalabai W/o Santosh Choudhari
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Nature of Litigation
Civil suit for possession of land based on title.
Remedy Sought
The plaintiff (respondent No. 1) sought possession of land Survey No. 261 from the defendant (appellant).
Filing Reason
The plaintiff claimed title to the suit land and sought possession from the defendant who was in possession.
Previous Decisions
The trial court decreed the suit in favor of the plaintiff. The first appellate court confirmed the decree. The defendant filed the present second appeal.
Issues
Whether the concurrent findings of the courts below are perverse?
Whether the courts below failed to consider the compromise decree and mutation entries?
Submissions/Arguments
The appellant argued that the courts below ignored the compromise decree dated 30-11-1964 and mutation entries showing his possession.
The respondent supported the concurrent findings.
Ratio Decidendi
Concurrent findings of fact can be interfered with in a second appeal if they are perverse, i.e., based on no evidence or ignoring material evidence. The failure of the courts below to consider the compromise decree and mutation entries rendered the findings perverse, warranting interference under Section 100 CPC.
Judgment Excerpts
The present respondent No.1/Ori. Plaintiff instituted Regular Civil Suit No. 85 of 1972 against the present appellant and the respondent No. 2 for possession of land bearing Survey No. 261 at Village Dhanora.
The Trial Court decreed the suit of the plaintiff.
The learned counsel for the appellant strenuously contends that the Courts below have not considered the compromise decree dated 30-11-1964 and the mutation entries.
The concurrent findings of the Courts below are perverse.
The appeal is allowed. The judgments and decrees passed by the Courts below are set aside. The matter is remanded back to the Trial Court for fresh decision.
Procedural History
The original plaintiff filed Regular Civil Suit No. 85 of 1972 for possession. The trial court decreed the suit. The defendant appealed to the first appellate court, which confirmed the decree. The defendant then filed Second Appeal No. 1435 of 2005 in the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
