Case Note & Summary
The case involves a second appeal filed by the original defendant No.1, Babasaheb s/o Raosaheb Malba (Kadam), against the judgment and order of the Additional District Judge, Osmanabad, dated 26.4.1988, which dismissed Regular Civil Appeal No. 7 of 1987 and confirmed the judgment and decree of the Civil Judge, Junior Division, Tuljapur, dated 12.12.1986 in Regular Civil Suit No. 5 of 1978. The plaintiffs, Raosaheb s/o Dattatraya Bandgar (since deceased, represented by legal representatives) and others, had filed the suit seeking a declaration of their ownership and possession over agricultural land bearing survey No.7, admeasuring 2 acres 38 gunthas, situated at village Sindhphal. The plaintiffs claimed that they were the owners and in possession of the suit land and had sown crops therein. The defendant No.1 contested the suit, denying the plaintiffs' title and possession. The trial court, after appreciating the evidence, dismissed the suit, holding that the plaintiffs failed to prove their ownership and possession. The first appellate court confirmed this finding. In the second appeal, the appellant (original defendant No.1) argued that the courts below erred in law and that the findings were perverse. The High Court, after hearing the parties, held that no substantial question of law arose in the appeal, as the concurrent findings of fact were based on evidence and were not perverse. The court noted that the plaintiffs had failed to discharge the burden of proof regarding their title and possession. Accordingly, 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 in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found no substantial question of law arose as the plaintiffs failed to prove title and possession. (Paras 1-10) B) Property Law - Burden of Proof - Ownership and Possession - The plaintiffs, claiming ownership and possession of agricultural land, failed to discharge the burden of proof. The courts below concurrently held that the plaintiffs did not establish their title or possession over the suit land. (Paras 3-9) C) Evidence - Appreciation of Evidence - Concurrent Findings - The trial court and first appellate court both dismissed the suit after appreciating oral and documentary evidence. The High Court upheld these findings as they were not shown to be perverse or contrary to law. (Paras 2-10)
Issue of Consideration
Whether the plaintiffs proved their ownership and possession over the suit land, and whether the concurrent findings of the courts below are perverse or suffer from any substantial error of law.
Final Decision
Second appeal dismissed with no order as to costs. The judgment and decree of the trial court and the first appellate court are confirmed.
Law Points
- Burden of proof lies on plaintiff to prove title and possession
- Concurrent findings of fact not interfered with in second appeal unless perverse
- Section 100 CPC limits second appeal to substantial questions of law
