Case Note & Summary
The case involves a second appeal filed by the original defendants against the concurrent decrees of the trial court and the first appellate court, which had decreed the suit for possession of 12 gunthas of land from Survey No. 133/11 of village Shirpur, Taluka and District Buldana. The original plaintiff, Bhagwan Balwanta, claimed possession and mesne profits. The trial court decreed the suit, and the first appellate court confirmed the decree. The defendants appealed to the High Court. The High Court framed a substantial question of law regarding whether the concurrent findings were perverse. The court examined the evidence and found that the plaintiff had not proved his title or possession within 12 years prior to the suit. The plaintiff relied on a sale deed of 1957, but the suit was filed in 1983, beyond the limitation period. The court held that the findings of the courts below were based on no evidence and were perverse. The High Court allowed the appeal, set aside the decrees, and dismissed the suit.
Headnote
A) Limitation Act - Article 65 - Suit for Possession Based on Title - Burden of Proof - In a suit for possession based on title, the plaintiff must prove his title and that he was in possession within 12 years prior to the suit. The court held that the plaintiff failed to discharge this burden, and the findings of the courts below were perverse. (Paras 1-10)
B) Civil Procedure Code - Section 100 - Second Appeal - Interference with Concurrent Findings - The High Court can interfere with concurrent findings if they are perverse or based on no evidence. The court found that the lower appellate court's judgment was cryptic and did not properly appreciate the evidence, leading to a miscarriage of justice. (Paras 1-10)
C) Evidence Act - Section 101 - Burden of Proof - The plaintiff must prove his case. The court noted that the plaintiff did not produce any documentary evidence of title or possession, and the oral evidence was insufficient. The suit was dismissed. (Paras 1-10)
Issue of Consideration
Whether the concurrent findings of the courts below are perverse and suffer from material irregularity, warranting interference in second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the courts below, and dismissed the suit with no order as to costs.
Law Points
- Limitation Act
- 1963
- Article 65
- Adverse Possession
- Burden of Proof
- Perversity
- Substantial Question of Law
- Second Appeal
- Section 100 CPC
Case Details
2006 LawText (BOM) (08) 139
Second Appeal No. 603 of 1990
Mr. A.V. Gupta with Mr. Sadavarte for Appellants, Mr. S.R. Deshpande for Respondent No.3
Gulabrao Patilba Susar, Subhash Patilba Susar, Tulsabai w/o Patilba Susar, Durgabai w/o Pandurang Kankal, Purbabai w/o Maroti Kute, Janabai w/o Narayan Tarmale, Lankabai w/o Hariba Waware, Kantabai w/o Kundalik Raut, Dwarkabai w/o Govinda Kakde
Dhrupadabai w/o Bhagwanrao Susar, Dhondiba Bhagwanrao Susar, Rameshwar Bhagwanrao Susar, Bhimabai d/o Bhagwanrao Susar, Sau. Parbatabai w/o Namdeo Shelke, Narmadabai w/o Dashrath Kanodje, Anusayabai w/o Ramnath Khalsne
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Nature of Litigation
Second appeal against concurrent decrees in a suit for possession of land and mesne profits.
Remedy Sought
Appellants (original defendants) sought setting aside of the decrees of the trial court and first appellate court which decreed the suit for possession of 12 gunthas of land.
Filing Reason
The appellants contended that the concurrent findings were perverse and based on no evidence, and that the suit was barred by limitation.
Previous Decisions
The trial court decreed the suit, and the first appellate court confirmed the decree.
Issues
Whether the concurrent findings of the courts below are perverse and suffer from material irregularity, warranting interference in second appeal under Section 100 CPC.
Whether the plaintiff proved his title and possession within 12 years prior to the suit as required under Article 65 of the Limitation Act, 1963.
Submissions/Arguments
Appellants argued that the plaintiff failed to prove title and possession within limitation, and the findings were perverse.
Respondents supported the concurrent findings and argued that no interference was warranted.
Ratio Decidendi
In a suit for possession based on title, the plaintiff must prove his title and that he was in possession within 12 years prior to the suit. The concurrent findings of the courts below were perverse as they were based on no evidence and ignored the bar of limitation. The High Court can interfere with such findings in second appeal under Section 100 CPC.
Judgment Excerpts
This is a Second Appeal by Original Defendants.
The plaintiff claimed possession of 12 Gunthas of land from Survey No. 133/11 of village Shirpur, Taluka & District Buldana, and mesne profits.
The court found that the findings of the courts below are perverse and based on no evidence.
The suit was barred by limitation as the plaintiff failed to prove possession within 12 years prior to the suit.
Procedural History
Regular Civil Suit No. 264 of 1983 was filed by Bhagwan Balwanta for possession and mesne profits. The trial court decreed the suit. The first appellate court confirmed the decree. The defendants filed Second Appeal No. 603 of 1990 in the Bombay High Court, Nagpur Bench, which was allowed on 31st August 2006.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963: Article 65
- Indian Evidence Act, 1872: Section 101
