Case Note & Summary
The case involves a second appeal filed by the original plaintiff, Ramchandra Vaman alias Gopal Naik Ganto (since deceased, represented by legal representatives), against the judgment and order of the Additional District Judge, Panaji, dismissing his appeal and confirming the trial court's dismissal of his suit for permanent injunction, possession, and recovery of rent. The plaintiff claimed that his father had constructed a grocery shop on his property at Dongri, which was leased to defendant no.1 at Rs. 15 per month. After his father's death in 1970, defendant no.1 closed the shop and stopped paying rent. The plaintiff alleged that defendants no.2 to 4 were running the shop and carrying out illegal constructions, giving rise to the cause of action. The defendants contested the suit, denying all allegations. They contended that the plaintiff's father had constructed the shop and later closed it due to financial difficulties. Defendant no.1 approached the plaintiff's father and was given the shop on lease about 20 years before the suit, and he paid rent until his death. The shop was restarted in 1975, but defendant no.1 promised to pay rent but never did. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The High Court, in second appeal, held that no substantial question of law arose as the findings of fact were concurrent and based on evidence. The plaintiff failed to prove his title and possession, and the lease arrangement was not proved. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Concurrent Findings of Fact - The High Court in second appeal under Section 100 of Code of Civil Procedure, 1908 cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found no substantial question of law arose as the findings were based on appreciation of evidence. (Paras 2-5)
B) Property Law - Burden of Proof - Title and Possession - The plaintiff failed to prove his title and possession over the suit property. The courts below held that the plaintiff did not produce sufficient evidence to establish ownership or that the defendants were trespassers. The burden was on the plaintiff to prove his case, which he failed to discharge. (Paras 3-4)
C) Evidence Act - Lease - Proof of Lease - The plaintiff alleged a lease in favor of defendant no.1 but did not produce any documentary evidence such as rent receipts or lease deed. The courts below disbelieved the lease arrangement. (Para 3)
Issue of Consideration
Whether the plaintiff was entitled to a decree for permanent injunction, possession, and recovery of rent against the defendants.
Final Decision
The High Court dismissed the second appeal with no order as to costs, confirming the dismissal of the suit for permanent injunction, possession, and recovery of rent.
Law Points
- Burden of proof lies on plaintiff to establish title and possession
- Adverse possession requires clear and unequivocal evidence
- Lease must be proved by documentary evidence
- Concurrent findings of fact not interfered with in second appeal unless perverse
Case Details
2006 LawText (BOM) (11) 98
Second Appeal No. 16 of 1998
Shri S.D. Lotlikar, Sr. Advocate with Shri M. De Souza, Advocate for the Appellants; Shri J.P. Mulgaonkar, Advocate for Respondents No. 4(a), 5 & 6
Shri Ramchandra Vaman alias Gopal Naik Ganto (since deceased, represented by legal representatives: Smt. Neeta Ramchandra Naik Ganto, Shri Abhay Ramchandra Naik Ganto, Kum. Sangeeta Ramchandra Naik Ganto, Kum. Kunda Ramchandra Naik Ganto, Kum. Jyoti Ramchandra Naik Ganto)
Subhash V. Adarkar, Sandeep V. Adarkar, Prassad V. Adarkar, Suresh Datta Bhomkar (since deceased, represented by legal representatives: Sumitra Suresh Bhomkar, Kum. Shivdatt S. Bhomkar, Kum. Sudeep S. Bhomkar), Devu Datta Bhomkar, Datta Bhomkar
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Nature of Litigation
Second appeal against dismissal of suit for permanent injunction, possession, and recovery of rent.
Remedy Sought
The plaintiff sought a decree for permanent injunction, possession of the suit property, and recovery of rent from the defendants.
Filing Reason
The plaintiff claimed that his father had constructed a grocery shop on his property, leased it to defendant no.1, and after his father's death, defendant no.1 closed the shop and stopped paying rent. Defendants no.2 to 4 were running the shop and carrying out illegal constructions.
Previous Decisions
The trial court dismissed the suit. The first appellate court (Additional District Judge, Panaji) dismissed the appeal and confirmed the trial court's judgment.
Issues
Whether the plaintiff proved his title and possession over the suit property?
Whether the plaintiff proved the lease arrangement with defendant no.1?
Whether the concurrent findings of fact are perverse or based on no evidence?
Submissions/Arguments
The plaintiff argued that his father constructed the shop and leased it to defendant no.1, and after his father's death, the defendants trespassed and carried out illegal constructions.
The defendants denied the allegations and contended that the plaintiff's father closed the shop due to financial difficulties, and defendant no.1 was given the shop on lease but never paid rent after restarting the shop in 1975.
Ratio Decidendi
In a second appeal under Section 100 of the Code of Civil Procedure, 1908, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff failed to discharge the burden of proving his title and possession, and the lease arrangement was not proved. Therefore, no substantial question of law arose.
Judgment Excerpts
The unsuccessful plaintiff has preferred this appeal against the judgment and order passed by Additional District Judge, Panaji dismissing his appeal and confirming the judgment and order passed by the trial Court dismissing the plaintiff's suit for permanent injunction, possession and recovery of rent against the defendants/respondents.
The facts involved in the dispute in brief are thus; ...
The defendants contested the suit, inter alia, denying all the allegations made by the plaintiff.
Procedural History
The plaintiff filed a suit for permanent injunction, possession, and recovery of rent in the trial court. The trial court dismissed the suit. The plaintiff appealed to the Additional District Judge, Panaji, who dismissed the appeal and confirmed the trial court's judgment. The plaintiff then filed a second appeal in the High Court of Bombay at Goa, which was dismissed on 9th November 2006.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
