Case Note & Summary
The present second appeal was filed by the original plaintiff, Sau. Indira Chhabildas Jadhav, challenging the concurrent judgment and decree passed by the learned District Judge-1, Amalner, in Regular Civil Appeal No.05 of 2009 dated 26-10-2015, which confirmed the dismissal of her suit for removal of encroachment and possession in Special Civil Suit No.47 of 2007 by the learned Civil Judge, Senior Division, Amalner, dated 22-01-2009. The appellant claimed ownership of Gut No.65/2B/1 admeasuring 1 H 52 R situated at village Sarbete Bk., Tq. Amalner, Dist. Jalgaon, purchased from Devidas Kalu Vanjari, Sanjay Kalu Vanjari, and Chababai Kalu Vanjari by registered sale deed dated 30-04-2007. She alleged that the respondent-defendant, owner of the southern part Gut No.65/1, illegally encroached upon her land to the extent of 19 R by demolishing a common bandh in May 2004. She applied for measurement on 04-05-2007, and the Cadastral Surveyor measured the land in June 2007. Despite requests, the defendant refused to hand over the encroached portion, leading to the suit. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The High Court, in second appeal under Section 100 of the Code of Civil Procedure, 1908, found no substantial question of law and dismissed the appeal, upholding the concurrent findings of fact that the plaintiff failed to prove her title and the alleged encroachment.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court held that in a second appeal, interference with concurrent findings of fact is permissible only if the findings are perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law, and the appeal was dismissed. (Paras 1-10) B) Property Law - Encroachment - Burden of Proof - The plaintiff must prove her title and the alleged encroachment. The courts below found that the plaintiff failed to establish her ownership over the suit land and the extent of encroachment, and the concurrent findings were based on proper appreciation of evidence. (Paras 2-9)
Issue of Consideration
Whether the concurrent findings of fact by the courts below regarding dismissal of the suit for removal of encroachment and possession are perverse or suffer from any substantial error of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed. The concurrent judgment and decree of the courts below are confirmed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- burden of proof on plaintiff
- title and possession must be proved
