Case Note & Summary
The present second appeal arises from a property dispute. The original plaintiff, Badshaha s/o Maktumsaheb Basale (since deceased, represented by LRs), filed Regular Civil Suit No. 95 of 1972 before the Civil Judge, Junior Division, Paranda, seeking possession of a suit plot by removing encroachment made by the defendants, Imamsaheb s/o Daudsaheb (appellant) and Keru s/o Gana Mali (respondent No. 2). The plaintiff claimed that the suit plot was his property and that the defendants had encroached upon it. The trial court decreed the suit, holding the plaintiff entitled to possession. The appellant-defendant No. 1 filed an appeal (Regular Civil Appeal No. 39 of 1982) before the 2nd Additional District Judge, Osmanabad, which was dismissed on 15-10-1988. Aggrieved, the appellant filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law regarding whether the lower courts erred in decreeing the suit without proper consideration of evidence. However, upon hearing, the court found that the findings of fact were concurrent and based on evidence. The plaintiff had proved his possession and the encroachment. The defendant failed to prove that the suit plot was part of his land or that he had better title. The court held that no substantial question of law arose and dismissed the appeal, confirming the decree for possession.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court held that the second appeal does not involve any substantial question of law as the findings of fact by the lower courts were concurrent and based on evidence. The appellant-defendant failed to prove his title or that the suit plot was part of his land. The appeal was dismissed. (Paras 1-15) B) Property Law - Possession and Title - Burden of Proof - The plaintiff proved prior possession and encroachment by defendants. The burden shifted to the defendant to prove better title, which he failed to discharge. The courts below rightly decreed the suit for possession. (Paras 5-12)
Issue of Consideration
Whether the second appeal raises any substantial question of law warranting interference with concurrent findings of fact?
Final Decision
Second appeal dismissed. Decree for possession confirmed.
Law Points
- Second appeal limited to substantial question of law
- concurrent findings of fact not interfered with unless perverse
- burden of proof on defendant to prove title when plaintiff proves prior possession
- Section 100 CPC
