Case Note & Summary
The present second appeal was filed by the original defendant No.1, Shivram s/o Raghunath Barbole, challenging the judgment and decree dated 30-06-2016 passed by the learned District Judge-4, Latur in Regular Civil Appeal No.38 of 2013. The first appellate court had set aside the trial court's decree and decreed the suit filed by the original plaintiff, Prabhakar s/o Rajaram Kale (respondent No.1 herein). The factual matrix reveals that the plaintiff filed Regular Civil Suit No.93 of 2012 for possession and mandatory injunction before the 4th Joint Civil Judge, Senior Division, Latur. The plaintiff claimed that a plot admeasuring 50 feet East-West and 60 feet South-North situated at village Khadgaon, District Latur in Survey No.49 was the self-acquired property of one Maruti Namdeorao Katare, who purchased it from Vithal Pawar on 06-11-1976. After Maruti's death, his widow Saraswatibai became the absolute owner. The plaintiff, being the real brother of Saraswatibai, claimed that she was issueless and maintained by him in her old age. Saraswatibai expired on 05-08-1997, and prior to her death, she executed a will on 17-07-1997 in favour of the plaintiff, bequeathing the suit plot. The plaintiff alleged that when he returned to the suit plot about two months before filing the suit, he found the defendants in possession, and defendant No.1 claimed ownership. The plaintiff contended that the defendants had prepared documents and taken forcible possession. The suit was resisted by the defendants, who denied the plaintiff's title and claimed ownership through adverse possession. The trial court dismissed the suit, holding that the plaintiff failed to prove the will and that the defendant had not proved adverse possession. The first appellate court reversed the trial court's decision and decreed the suit. The High Court, in the second appeal, framed a substantial question of law regarding the perversity of the appellate court's judgment. The High Court found that the first appellate court had erroneously relied on the will without proper proof, as no attesting witness was examined. The court also noted that the appellate court did not properly consider the issue of adverse possession. Consequently, the High Court allowed the appeal, set aside the judgment of the first appellate court, and restored the trial court's decree dismissing the suit.
Headnote
A) Will - Proof of Will - Section 63 Indian Succession Act, 1925 and Section 68 Indian Evidence Act, 1872 - The plaintiff claimed title through a will executed by his sister, but failed to examine any attesting witness to prove the will as required by law - The trial court dismissed the suit, but the first appellate court reversed the decree - Held that the will was not duly proved, and the appellate court erred in relying on it (Paras 10-12). B) Adverse Possession - Possessory Title - The defendant claimed ownership by adverse possession, but the trial court found that the defendant failed to prove the same - The first appellate court did not properly consider this issue - Held that the defendant's possession, if any, was not adverse to the true owner (Paras 13-14). C) Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court found that the first appellate court's judgment was perverse and based on no evidence, thus raising a substantial question of law - Held that the appeal was allowed and the trial court's decree was restored (Paras 15-18).
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's judgment and decree dismissing the suit for possession, particularly regarding the proof of the will and the claim of adverse possession.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court, and restored the trial court's decree dismissing the suit.
Law Points
- Will
- Adverse Possession
- Possessory Title
- Burden of Proof
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
