Case Note & Summary
The case involves a second appeal filed by the defendants (Gramin Vikas Shikshan Sanstha and Rajkumar Shende) against the judgment and decree dated 22.12.2006 passed by the Principal District Judge, Gadchiroli in Regular Civil Appeal No.5 of 2004, which dismissed their appeal and affirmed the trial court's decree. The original suit (Regular Civil Suit No.9 of 2000) was filed by the plaintiff (Bhikshuk @ Biskut Pasande) seeking possession of suit land bearing Survey No.244, area 0.80 hectares at village Rangi, Tahsil Dhanora, District Gadchiroli, along with damages and mesne profits. The plaintiff claimed ownership and possession, alleging that the defendants encroached upon the land in April 1993. The trial court decreed the suit, directing the defendants to deliver possession. The first appellate court confirmed this. In the second appeal, the appellants argued that the trial court failed to grant them sufficient opportunity to cross-examine the plaintiff, and that the plaintiff did not properly prove title. The High Court, per Justice A.P. Bhangale, examined the record and found that both lower courts had concurrently held that the plaintiff proved title and the defendants were in wrongful possession. The court noted that no substantial question of law arose under Section 100 CPC, as the findings were based on evidence and there was no failure of justice. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the second appeal involved any substantial question of law, given that both lower courts had concurrently found the plaintiff's title and the defendants' encroachment. The High Court held that no substantial question of law arose and dismissed the appeal. (Paras 1-4) B) Property Law - Title and Possession - Burden of Proof - The plaintiff claimed ownership and possession of suit land and alleged encroachment by defendants. The trial court decreed the suit, and the first appellate court affirmed. The High Court noted that the plaintiff had sufficiently proved title and the defendants failed to rebut the evidence. (Paras 2-3) C) Civil Procedure - Opportunity to Cross-Examine - Failure of Justice - The appellants contended that the trial court did not grant sufficient opportunity to cross-examine the plaintiff. The High Court found no merit in this contention as the record did not show any prejudice or denial of opportunity. (Para 3)
Issue of Consideration
Whether the judgment and decree of the lower appellate court suffer from any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal with no order as to costs, affirming the concurrent findings of the lower courts.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- title suit
- encroachment
- mesne profits
- opportunity to cross-examine
- failure of justice
