Case Note & Summary
The case involves a second appeal filed by the appellant, who is the grand-daughter-in-law of the original plaintiff Gangabai Gilda. The suit property is a shop in Mathuradas building, Amravati. The original plaintiff claimed that she became owner of a half share in the building by virtue of an auction sale dated 2.3.1960 held in execution of a decree in a mortgage suit. She filed a suit for possession and declaration of title against the defendants, who were tenants in the shop. The trial court dismissed the suit, holding that the plaintiff failed to prove her title and that her possession was not established within 12 years of the suit. The first appellate court confirmed the dismissal. In the second appeal, the appellant argued that the courts below erred in not considering the evidence properly. The High Court held that no substantial question of law arose, as the findings were concurrent and based on evidence. The court noted that the plaintiff did not prove that she acquired title through the auction sale or that she was in possession within the limitation period. The alternative plea of adverse possession also failed. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to raise any substantial question of law. (Paras 1-10)
B) Property Law - Title and Possession - Burden of Proof - The plaintiff must prove her title and possession. In this case, the plaintiff failed to prove that she acquired title by auction sale or that she was in possession within 12 years of the suit. (Paras 3-8)
C) Limitation - Adverse Possession - Article 65 of Limitation Act, 1963 - The plaintiff's claim for possession based on title was barred by limitation as she did not prove possession within 12 years. The alternative plea of adverse possession also failed as she did not prove the requisite animus and period. (Paras 7-9)
Issue of Consideration
Whether the appellant established her title and possession over the suit property, and whether the courts below erred in dismissing the suit for possession and declaration of title.
Final Decision
The High Court dismissed the second appeal with no order as to costs, upholding the concurrent findings of the courts below.
Law Points
- Adverse Possession
- Burden of Proof
- Concurrent Findings of Fact
- Second Appeal under Section 100 CPC
- Substantial Question of Law
Case Details
2014 LawText (BOM) (03) 103
Second Appeal No. 21 of 2009
Shri V. R. Mundra for appellant, Shri P. C. Madkholkar for respondent nos. 3 to 6
Sau. Sunita w/o Jugalkishore Gilda
Smt. Sarda Ram Milan Vyas, Smt. Sarlabai W/o Nandalal Shrivas, Dhiraj Nandalal Shrivas, Vivek Nandalal Shrivas, Kum. Lalita D/o Nandalal Shrivas
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Nature of Litigation
Civil suit for declaration of title and possession of a shop property.
Remedy Sought
Appellant sought to set aside the concurrent judgments of the trial court and first appellate court dismissing the suit for possession and declaration of title.
Filing Reason
The original plaintiff claimed ownership of half share in the building by auction sale and sought possession from the defendants who were tenants.
Previous Decisions
Trial court dismissed the suit on 26.10.1994; first appellate court confirmed the dismissal on 25.9.2001.
Issues
Whether the appellant proved her title to the suit property?
Whether the suit for possession was barred by limitation?
Whether the appellant could claim adverse possession?
Whether any substantial question of law arose in the second appeal?
Submissions/Arguments
Appellant argued that the courts below erred in not considering the evidence properly and that she had acquired title by auction sale.
Respondents contended that the plaintiff failed to prove title and possession, and the findings were concurrent and based on evidence.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff failed to prove her title and possession within the limitation period, and the alternative plea of adverse possession was not established.
Judgment Excerpts
This appeal is preferred against the judgment and decree passed on 25.9.2001 by the Joint District Judge, Amravati in Regular Civil Appeal No. 21/1995...
The appellant is the grand daughter in law of the original plaintiff to whom the suit property... was bequeathed by the original plaintiff.
It was the case of the original plaintiff Gangabai Gilda that she became owner of the joint half share in the building... by virtue of an auction sale dated 2.3.1960...
Procedural History
Original plaintiff Gangabai filed Regular Civil Suit No. 402/1990 for possession and declaration of title. The trial court dismissed the suit on 26.10.1994. The first appeal (Regular Civil Appeal No. 21/1995) was dismissed on 25.9.2001. The present second appeal (Second Appeal No. 21 of 2009) was filed by the legal representative of the original plaintiff.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963: Article 65
