Case Note & Summary
The judgment pertains to two second appeals filed by the same appellant, Pandurang Dharma Gaikwad, against the respondent, Mahamudmuya Ahmadsaheb Patil, concerning disputes over adjacent properties. The first appeal (Second Appeal No.504/1991) arises from Regular Civil Suit No.96/1984, where the respondent (plaintiff) sought a mandatory injunction for removal of encroachment and possession. The trial court dismissed the suit on 29th July 1987, but the first appellate court allowed the appeal on 21st August 1991, setting aside the trial court's decree. The appellant challenged this in the second appeal. The second appeal (Second Appeal No.620/2010) arises from Regular Civil Suit No.30/1995, where the respondent sought a perpetual injunction against the appellant from interfering with his possession over a piece of land measuring 7.4 M x 3.3 M. The trial court decreed the suit on 16th February 1998, and the first appellate court dismissed the appellant's appeal on 9th July 2012, confirming the decree. The appellant then filed the second appeal. The court noted that both appeals involved the same parties and similar substantial questions of law. The appellant's counsel argued that the lower courts erred in their findings. However, the court observed that the findings of fact were concurrent and not perverse. The court held that no substantial question of law arose in either appeal, as the appellant failed to demonstrate any error of law or jurisdiction. Consequently, both second appeals were dismissed. The court also disposed of the pending civil application.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC, 1908 - The court examined whether the second appeals raised any substantial question of law. Held that the appeals did not involve any substantial question of law as the findings of fact by the lower courts were concurrent and not perverse. (Paras 5-7) B) Property Law - Mandatory Injunction - Encroachment - Regular Civil Suit No.96/1984 - The suit was filed for removal of encroachment and possession. The trial court dismissed the suit, but the first appellate court reversed the decision. The second appeal against that reversal was dismissed as no substantial question of law arose. (Paras 1, 5-7) C) Property Law - Perpetual Injunction - Possession - Regular Civil Suit No.30/1995 - The suit was for perpetual injunction against interference with possession. The trial court decreed the suit, and the first appellate court confirmed the decree. The second appeal against concurrent findings was dismissed. (Paras 2, 5-7)
Issue of Consideration
Whether the second appeals involve any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
Both second appeals are dismissed. Civil Application No.1620 of 2010 is disposed of accordingly.
Law Points
- substantial question of law
- concurrent findings of fact
- perversity
- mandatory injunction
- perpetual injunction
- encroachment
- possession
