Case Note & Summary
The case involves a dispute between the appellant (original plaintiff) and the respondent (original defendant) over a BANDH (embankment) and trees situated between two agricultural lands: Gat No.1024 owned by the appellant and Gat No.1022 owned by the respondent. The appellant claimed exclusive ownership of the BANDH and trees, while the respondent disputed this. The trial court held that the appellant was owner of only a portion (0-02-25 R) of the suit land and exclusive owner of 4 Babhul trees, but other trees were jointly owned as per the Commissioner's map (Exh.38). A decree for possession was passed in favor of the appellant for that portion. The appellant appealed to the District Court, which framed the sole issue of exclusive title and dismissed the appeal. The appellant then filed a second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court admitted the appeal on the substantial question of law: "Does the plaintiff prove his title to the suit property?" After hearing both sides, the High Court noted that the trial court and appellate court had concurrently found that the appellant failed to prove exclusive title to the entire BANDH and trees. The High Court held that no interference was warranted in second appeal as the findings were not perverse. The appeal was dismissed with no order as to costs.
Headnote
A) Property Law - Title and Ownership - Burden of Proof - Plaintiff failed to prove exclusive title to disputed BANDH and trees - Trial court and appellate court concurrently held that BANDH and trees are jointly owned - Second appeal dismissed as no substantial question of law arises (Paras 2-7).
Issue of Consideration
Does the plaintiff prove his title to the suit property?
Final Decision
Second appeal dismissed. No order as to costs.
Law Points
- Burden of proof lies on plaintiff to establish title
- Concurrent findings of fact not interfered with in second appeal unless perverse
- Section 100 CPC limits second appeal to substantial question of law
Case Details
2005 LawText (BOM) (02) 316
Second Appeal No. 567 of 1986
Shri V.A. Thorat for appellants, Shri C.J. Sawant with Vijay Patil for Respondent no.1
Ganpat Dagadu Gade (since deceased by his heirs: Suresh Ganpati Gade, Vijay Ganpati Gade, Chandrashekhar Ganpati Gade, Nilkanth Ganpati Gade, Sanjay Ganpati Gade, Sou. Indumati Parmeshwar Gade)
Baburao Baliba Bhosale (deceased by his heirs: Smt. Ratnabai Baburao Bhosale, Prataprao Baburao Bhosale)
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Nature of Litigation
Second appeal against concurrent findings in a suit for declaration, possession and injunction regarding disputed BANDH and trees.
Remedy Sought
Appellant (original plaintiff) sought declaration of exclusive title to BANDH and trees, possession, and injunction.
Filing Reason
Appellant claimed exclusive ownership of BANDH and trees situated between his land (Gat No.1024) and respondent's land (Gat No.1022), which was disputed by respondent.
Previous Decisions
Trial court held appellant owner of portion (0-02-25 R) and exclusive owner of 4 Babhul trees, other trees jointly owned; decree for possession of that portion. Appellate court dismissed appellant's appeal.
Issues
Whether the plaintiff proves his title to the suit property?
Submissions/Arguments
Appellant argued that the BANDH forms part of his Gat No.1024 and he is exclusive owner.
Respondent disputed the claim and supported concurrent findings of joint ownership.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to prove exclusive title to the disputed BANDH and trees.
Judgment Excerpts
Does the plaintiff proves his title to the suit property? is the substantial question of law.
The appeal is by unsuccessful original plaintiff who has partly succeeded in the trial Court in a suit filed by him for declaration, possession and injunction.
Procedural History
Suit filed by appellant (original plaintiff) for declaration, possession and injunction. Trial court partly decreed suit holding appellant owner of portion and exclusive owner of 4 trees, other trees jointly owned. Appellant appealed to District Court which dismissed appeal. Appellant then filed second appeal under Section 100 CPC which was admitted on substantial question of law.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
