Case Note & Summary
The present second appeal was filed by the Municipal Council, Amalner (original defendant) challenging the judgment and decree passed in Regular Civil Appeal No.26/2008 by the District Judge-1, Amalner, dated 08.01.2015, which dismissed the appellant's appeal and confirmed the decree passed by the Civil Judge Junior Division, Amalner in R.C.S. No.49/1998 dated 16.04.2008. The original plaintiff, Saraswati Keshav Pol (since deceased, represented by her legal representatives), had filed the suit for declaration and injunction claiming that she was the owner and possessor of CTS No.3282/A admeasuring 70 x 65 feet with a constructed premises in Amalner, where she ran a restaurant named 'Saraswati Restaurant' and resided since 1966 with her five sons and their families. She alleged that the defendant Municipal Council had reserved the area in 1973 for Octroi Naka, but on her application, the reservation was deleted by letter dated 10.03.1975. However, on 27.06.1998, the Chief Officer of the Municipal Council visited the suit property and directed her to vacate within 24 hours, claiming reservation, and affixed a notice on the property. The trial court decreed the suit in favor of the plaintiff, and the first appellate court dismissed the Municipal Council's appeal. In the second appeal, the appellant argued that the suit property was reserved for Octroi Naka and that the plaintiff failed to prove ownership. The High Court held that the concurrent findings of fact by the courts below were based on evidence and not perverse, and no substantial question of law arose. The second appeal was dismissed, confirming the decree in favor of the plaintiff/respondents.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings of fact cannot be interfered with in second appeal unless shown to be perverse or based on no evidence - The appellant failed to demonstrate any perversity or error of law in the concurrent findings of the trial court and first appellate court regarding the plaintiff's ownership and possession of the suit property (Paras 1-10). B) Property Law - Ownership and Possession - Municipal Reservation - Deletion of Reservation - The plaintiff proved ownership and possession of the suit property, and the Municipal Council's reservation for Octroi Naka was deleted by letter dated 10.03.1975 - The Municipal Council cannot claim title or eviction without following due process of acquisition - The concurrent findings of fact are binding in second appeal (Paras 2-10).
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law warranting interference with concurrent findings of fact.
Final Decision
The second appeal is dismissed. The judgment and decree passed by the District Judge-1, Amalner in Regular Civil Appeal No.26/2008 dated 08.01.2015, confirming the decree of the Civil Judge Junior Division, Amalner in R.C.S. No.49/1998 dated 16.04.2008, is upheld. No order as to costs.
Law Points
- Concurrent findings of fact cannot be interfered with in second appeal under Section 100 CPC unless perverse
- Municipal Council cannot claim ownership over private property without acquisition
- Reservation deletion letter creates estoppel against Municipal Council
