Case Note & Summary
The appellant, Sau. Rukhmabai, filed a second appeal against the judgment of the Appellate Court which reversed the trial court's decree in her favor. The suit land, Gat No.150 in Ambetakli, was acquired by the appellant under a registered sale deed dated 14.2.1979. The respondents, who owned adjacent land Gat No.149, allegedly removed boundary marks and encroached upon 25 R of the suit land. The appellant applied to the Taluka Inspector of Land Records for measurement, which was carried out on 13.1.1998 in the presence of adjoining owners, and the Government Measurer fixed boundary marks on 17.1.1998, finding encroachment of 25 R. In April 1998, the appellant found the respondents cultivating the encroached area. She filed Regular Civil Suit No.99 of 1998, which was decreed by the trial court. The respondents appealed in Regular Civil Appeal No.91 of 2005, which was allowed on 24.8.2012, dismissing the suit with costs. The appellant then filed this second appeal. The High Court formulated a substantial question of law: whether the appellate court's findings were vitiated for ignoring material aspects considered by the trial court. The High Court noted that the appellate court had not considered the government measurement report and the boundary marks fixed by the Government Measurer, which were crucial evidence. The High Court held that the appellate court's judgment was perverse and set it aside, restoring the trial court's decree. The second appeal was allowed with costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court examined whether the appellate court's findings were vitiated for ignoring material evidence considered by the trial court. The trial court had decreed the suit based on government measurement and boundary marks, but the appellate court reversed without addressing that evidence. Held that the appellate court's judgment was perverse and liable to be set aside (Paras 1-6).
Issue of Consideration
Whether the findings recorded by the Appellate Court are vitiated on account of ignorance of material aspects considered by the trial Court?
Final Decision
Second Appeal allowed. The judgment and order passed in Regular Civil Appeal No.91 of 2005 dated 24.8.2012 is set aside. The judgment and decree passed in Regular Civil Suit No.99 of 1998 is restored. The appellant is entitled to costs.
Law Points
- Second appeal
- substantial question of law
- findings vitiated
- ignorance of material aspects
- appellate court's duty
- evidence appreciation
